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1980_78-1945

JUSTICE BLACKMUN delivered the opinion of the Court.The Davis-Bacon Act requires that certain federal construction contracts contain a stipulation that laborers and mechanics will be paid not less than prevailing wages, as determined by the Secretary of Labor. The question presented in this case is whether the Act confers upon an employee a private right of action for back wages under a contract that has been administratively determined not to call for Davis-Bacon work, and that therefore does not contain a prevailing wage stipulation.ISection 1(a) of the Davis-Bacon Act of March 3, 1931 (Act), ch. 411, § 1, 46 Stat. 1494, as amended, 40 U.S.C. § 276a(a), [Footnote 1] provides that the advertised specifications for Page 450 U. S. 757 every federal contract in excess of $2,000"for construction, alteration, and/or repair . . . of public buildings or public works of the United States . . . shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics which shall be based upon the wages that will be determined by the Secretary of Labor to be prevailing"for corresponding classes of laborers and mechanics employed on similar projects in the locality. Every contract based upon these specifications must contain a stipulation that the contractor shall pay wages not less than those stated in the specifications. [Footnote 2]A contract entered into pursuant to the Act must also provide that, if the contractor fails to pay the minimum wages specified in the contract, the Government contracting officer may withhold so much of the accrued payments as may be considered necessary to pay the laborers and mechanics the difference between the contract wages and those actually paid. Section 3 of the Act, as added Aug. 30, 1935, 49 Stat. Page 450 U. S. 758 1012, 40 U.S.C. § 276a-2, [Footnote 3] authorizes the Comptroller General to pay these accrued payments directly to the laborers and mechanics.Should the withheld funds prove insufficient to reimburse the employees, § 3 confers on them"the right of action and/or of intervention against the contractor and his sureties conferred by law upon persons furnishing labor or materials."Laborers and mechanics working under a contract that contains Davis-Bacon Act stipulations thus may themselves bring suit against the contractor on the payment bond that the Miller Act of August 24, 1935, 49 Stat. 793, as amended. 40 U.S.C. § 270a et seq. (1976 ed. and Supp. III), requires for the protection of persons supplying labor or materials under certain federal construction contracts. [Footnote 4] In addition, Page 450 U. S. 759 if the contractr fails to pay at least the stipulated minimum wages, the contract may be terminated and the contractor debarred from all Government contracts for a period of three years. [Footnote 5]Pursuant to Reorganization Plan No. 14 of 1950, 5 U.S.C.App. p. 746, the Secretary of Labor (Secretary) has issued regulations designed to "assure coordination of administration and consistency of enforcement" of the Act and some 60 related statutes. [Footnote 6] See 29 CFR Parts 1, 3, 5, 7 (1980). [Footnote 7] In Page 450 U. S. 760 their turn, various contracting agencies have issued detailed regulations concerning the applicability of the Act to the contracts they let. See, e.g., 41 CFR Subpart 9-18.7 (1979) (Department of Energy). The contracting agency has the initial responsibility for determining whether a particular contract is subject to the Davis-Bacon Act. See A. Thieblot, The Davis-Bacon Act 31 (Labor Relations and Public Policy Series Report No. 10, Univ. of Pa., 1975) (hereinafter Thieblot). If the agency determines that the contract is subject to the Act, it must determine the appropriate prevailing wage rate, [Footnote 8] and ensure that the rate chosen is inserted in the requests for bids on the project, as well as in any resulting contract. See 29 CFR § 5.5 (1980); Thieblot at 31-34.The contracting agency's coverage and classification determinations are subject to administrative review. Prior to the award of a contract, a contractor, labor organization, or employee may appeal a final agency determination that a project is not covered by the Act to the Department of Labor. Page 450 U. S. 761 29 CFR §§ 5.12 and 7.9 (1980). [Footnote 9] Disputes over the proper classification of workers under a contract containing Davis-Bacon provisions must be referred to the Secretary for determination. 41 CFR § 1-18.703-1(i) (1979); 29 CFR § 5.12 (1980). See North Georgia Bldg. & C.T.C. v. U.S. Dept. of Transp., 399 F. Supp. 58 (ND Ga.1975). In turn, any "interested person" may appeal the Secretary's wage rate determination to the Wage Appeals Board of the Department of Labor, provided review is sought prior to the award of the contract at issue. 29 CFR § 1.16 (1980); 29 CFR Part 7 (1980). See Thieblot at 40-43. [Footnote 10] Page 450 U. S. 762IIPetitioner Universities Research Association, Inc., is a not-for-profit consortium of North American universities. In 1967, petitioner made a contract with the Atomic Energy Commission (AEC) to provide scientific and management services to the United States in connection with the construction, alteration, and repair of the Fermi National Accelerator Laboratory, a high-energy physics research facility located in Kane and Du Page Counties, Ill. Effective April, 1972, this contract was modified to provide that petitioner also would furnish personnel to administer and operate the Fermi Laboratory. The contract was later assumed in turn by the AEC's successors, the Energy Research and Development Agency (ERDA) and the Department of Energy (DOE). [Footnote 11]At all relevant times, the funding for the Fermi Laboratory was supplied entirely by the United States through the AEC. The contract, which tracked AEC procurement regulations, [Footnote 12] specified the rates of compensation to be paid certain classifications of employees; in addition, petitioner was required to obtain approval from the AEC prior to adopting new classifications of employees or making any changes in employee compensation.Article XXXIII of the contract expressly stated that it was not contemplated that petitioner would use its own employees to perform work that the AEC determined to be subject to the Act; such work, if any, was to be procured by subcontracts approved by the AEC and containing Davis-Bacon Page 450 U. S. 763 stipulations. [Footnote 13] In a letter dated January 23, 1968, from the AEC to petitioner, the AEC stated that Art. XXXIII was included in the contract with the understanding that the contract would be modified to incorporate Davis-Bacon stipulations "[i]f presently unforeseen conditions" arose making it necessary that Davis-Bacon work be performed by petitioner with its own employees. [Footnote 14] Another letter, dated April 6, 1972, with identical provisions was sent to petitioner by the AEC following the modification of the contract in 1972. App. 63. In order to implement Art. XXXIII, a committee of AEC officials was designated to review specific work projects and to make Davis-Bacon Act coverage determinations as was necessary. [Footnote 15] Page 450 U. S. 764In April, 1975, respondent Stanley E. Coutu, a former employee of petitioner, brought suit in the United States District Court for the Northern District of Tllinois on behalf of himself and other mechanics and laborers similarly situated, seeking more than $5 million in damages on the theory that petitioner had violated the Davis-Bacon Act by failing to pay prevailing wages for construction work performed by its employees under the contract with the AEC. Respondent had been employed by petitioner as an electronics technician from Septembcr 25, 1372, ulltil September 10, 1975. During that time, he was compensated in accordance with the wage schedules for the "technician" classification set forth in the contract. Respondent's duties involved monitoring computers, providing assistance to scientific personnel. supervising accelerator operation, and recordkeeping. He also would make minor repairs to malfunctioning equipment, assemble prefabricated items, and assist in connecting power sources to experimental equipment. Respondent's supervisors typically were high-rated technicians, engineers, and physicists. Respondent's complaint was in seven counts. The first alleged that petitioner had failed to pay"the minimum wages Page 450 U. S. 765 required to be paid pursuant to the said contract and the prevailing wage determinations of the Secretary of Labor and the Davis-Bacon Act."App. 4. The second alleged that the contract was within the purview of the Davis-Bacon Act and that the contract, by its terms, provided for payment "at the legal wage rate applicable to the work actually performed." Id. at 7. The remaining counts rested on common law bases, for which pendent federal jurisdiction was asserted.On October 8, 1975, the District Court dismissed respondent's first cause of action on the ground that it was not "totally borne out" by the contract. Id. at 22. The court, however, denied petitioner's motion to dismiss the second count and the pendent claims. It relied on the Seventh Circuit's first decision in McDaniel v. Universty of Chicago, 512 F.2d 583 (McDaniel I), vacated and remanded, 423 U.S. 810 (1975),j udgment reentered on remand, 548 F.2d 689 (1977) (McDaniel II), cert. denied, 434 U.S. 1033 (1978). McDaniel I held that the Davis-Bacon Act conferred an implied private right of action upon an employee seeking to enforce a contractor's commitment to pay prevailing wages. [Footnote 16] The District Page 450 U. S. 766 Court reasoned that the AEC letter of April 6, 1972, interpreting Art. XXXIII of the contract left open the possibility that petitioner's employees had performed work covered by the Act pursuant to proper determinations by the AEC. The court accordingly gave respondent"leave to show that the Secretary of Labor through [AEC] has made Davis-Bacon Act determinations with respect to the alleged contract, and that [respondent] and the class have performed such work at [petitioner's] direction, pursuant to the contract."App. 25.After discovery, petitioner moved for summary judgment. In support of its motion, petitioner submitted an affidavit of the chief legal counsel for the Fermi Laboratory which stated that"[n]o Davis-Bacon Act . . . stipulations requiring the payment of prevailing wages have ever been made a part of or incorporated in [the] Contract."Id. at 31-32. The District Court noted that respondent "as much concedes that the contract fails to include Davis-Bacon specifications," and it found that "[o]n the present state of the record, it is clear that no Davis-Bacon Act determinations have been made a part of this contract." Id. at 32-33. After reviewing the statutory and regulatory framework of the Act, the court concluded that"it would be improper for this court to declare in the first instance that this contract is now subject to the Davis-Bacon Act and to make appropriate wage determinations for the parties."Id. at 34. The court therefore dismissed the second count and, "in the exercise of its discretion," Page 450 U. S. 767 ibid., declined to assume jurisdiction over the pendent state law claims.The United States Court of Appeals for the Seventh Circuit reversed and remanded the case. 595 F.2d 396 (1979). That court recognized that the affidavit submitted by petitioner tended to disprove that there were express Davis-Bacon Act stipulations in the contract; it determined, however, that summary judgment on the second count was not appropriate, since"there may have been other evidence that the contract was one for Davis-Bacon Act work, in which case the required stipulations arguably become a part of the contract by operation of law."Id. at 398. Reasoning from its prior opinions in McDaniel I and II, the court concluded that"if the [petitioner] actually performed [Davis-Bacon Act] work with its own employees at the Fermi Laboratory, [respondent and his class] became entitled to the prevailing wages in Kane County where the work was to be performed."595 F.2d at 399. After rejecting petitioner's alternative argument that exhaustion of administrative remedies was required, the court remanded the case to allow respondent the opportunity on remand to demonstrate, if he could, that petitioner had used respondent and his class to perform Davis-Bacon construction work at the Fermi Laboratory. Id. at 402.Because of the importance of the implied right of action issue, we granted certiorari. 445-U.S. 925 (1980).IIIBefore us, petitioner makes two major arguments. It contends first that the federal courts do not have jurisdiction to make coverage, classification, or wage determinations under the Davis-Bacon Act. Alternatively, petitioner contends that Congress did not intend that the Davis-Bacon Act be enforced through private actions. Because we conclude that the Act does not confer a private right of action for back wages under a contract that administratively has been determined Page 450 U. S. 768 not to call for Davis-Bacon work, [Footnote 17] we find it unnecessary to reach the broacler question whether federal courts have any jurisdiction to review agency coverage and classification Page 450 U. S. 769 determillation. [Footnote 18] Similarly, we do not decide whether the Act creates an implied rivate right of action to enforce a contract that contains specific Davis-Bacon Act stipulations. [Footnote 19] Page 450 U. S. 770Relying on McDaniel, [Footnote 20] respondent argues that it must be assumed that no statutory relief is available to him, and that therefore the implication of a private right of action is necessary to effectuate the purpose of Congress in passing the Act. But as the Court's recent opinions have made clear, the question whether a statute creates a private right of action is ultimately"one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law."Touche Ross & Co. v. Redington, 442 U. S. 560, 442 U. S. 578 (1979). See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 444 U. S. 15-16 (1979). In order to determine whether Congress intended to create the private right of action asserted here, we consider three factors set forth in Cort v. Ash, 422 U. S. 66, 422 U. S. 78 (1975), that we have "traditionally relied upon in determining legislative intent": the "language and focus of the statute, its legislative history, and its purpose." See Touche Ross, 442 U.S. at 442 U. S. 575-576. We conclude that each of these factors points to the conclusion that Congress did not intend to create a private right of action in favor of an employee under a contract that does not contain prevailing wage stipulations. [Footnote 21] Page 450 U. S. 771AWe turn first to the language of the Act itself. See Transamerica, 444 U.S. at 444 U. S. 1; Touche Ross, 442 U.S. at 442 U. S. 568. Section 1 of the Act states that the advertised specifications for every federal construction contract in excess of the specified amount "shall contain" a provision stating the minimum wages to be paid laborers and contractors, which wages shall be based on those the Secretary determines to be prevailing in the locality. Section 1 further provides that "every contract based upon these specifications shall contain a stipulation" that the contractor shall pay wages "not less than those stated in the advertised specifications."The Court's previous opinions have recognized that, "[o]n its face, the Act is a minimum wage law designed for the benefit of construction workers." United States v. Binghamton Constr. Co., 347 U. S. 171, 347 U. S. 178 (1954); Walsh v. Schlect, 429 U. S. 401, 429 U. S. 411 (1977). But the fact that an enactment is designed to benefit a particular class does not end the inquiry; instead, it must also be asked whether the language of the statute indicates that Congress intended that it be enforced through private litigation. See Transamerica, 444 U.S. at 444 U. S. 17-18. [Footnote 22] The Court consistently has found that Congress intended to create a cause of action "where the Page 450 U. S. 772 language of the statute explicitly confer[s] a right directly on a class of persons that include[s] the plaintiff in the case." Cannon v. University of Chicago, 441 U. S. 677, 441 U. S. 690, n. 13 (1979). Conversely, it has noted that there "would be far less reason to infer a private remedy in favor of individual persons" where Congress, rather than drafting the legislation "with an unmistakable focus on the benefited class," instead has framed the statute simply as a general prohibition or a command to a federal agency. Id. at 441 U. S. 690-692. Section 1 of the Davis-Bacon Act requires that certain stipulations be placed in federal construction contracts for the benefit of mechanics and laborers, but it does not confer rights directly on those individuals. Since § 1 is simply "phrased as a directive to federal agencies engaged in the disbursement of public funds." 441 U.S. at 441 U. S. 693, n. 14, [Footnote 23] its Page 450 U. S. 773 language provides no support for the implication of a private remedy.Moreover, § 3 of the Act demonstrates that,, in this context, as in others, "when Congress wished to provide a private damages remedy, it knew how to do so, and did so expressly." Touche Ross, 442 U.S. at 442 U. S. 572. Under § 1 of the Act, the contracting agency is entitled to withhold "so much of accrued payments" as may be considered necessary to pay to laborers and mechanics the difference between "the rates of wages required by the contract" and the rates actually paid. If the wages so withheld are insufficient to reimburse the laborers and mechanics, then § 3 confers on them the same "right of action and/or intervention" conferred by the Miller Act on laborers and materialmen. The absence of a comparable provision authorizing a suit for back wages where there are no prevailing wage stipulations in the contract buttresses our conclusion that Congress did not intend to create such a remedy. [Footnote 24]BThe legislative history of the Davis-Bacon Act provides further support for the result we reach. The Act was "designed to protect local wage standards by preventing contractors from basing their bids on wages lower than those prevailing in the area." House Committee on Education and Labor, Legislative History of the Davis-Bacon Act, 87th Page 450 U. S. 774 Cong., 2d Sess. 1 (Comm.Print 1962) (Legislative History). Passage of the Act was spurred by the ecoomic conditions of the early 1930's, which gave rise to an oversupply of labor and increased the importance of federal building programs, since private construction was limited. See Thieblot, at 7; Elisburg, Wage Protection Under the Davis-Bacon Act, 28 Lab.L.J. 323, 324 (1977); S.Rep. No. 1445, 71st Cong., 3d Sess., 1 (1931). In the words of Representative Bacon, the Act was intended to combat the practice of"certain itinerant, irresponsible contractors, with itinerant, cheap, bootleg labor, [who] have been going around throughout the country 'picking' off a contact here and a contract there."The purpose of the bill was "simply to give local labor and the local contractor a fair opportunity to participate in this building program." 74 Cong.Rec. 6510 (1931). [Footnote 25]As originally enacted in 1931, ch. 411, 46 Stat 1494, the Page 450 U. S. 775 Act required that every federal contract in excess of $5,000 in amount for "construction, alteration, and/or repair of any public buildings" contain a provision stating that the rate of wages paid laborers and mechanics would not be less than the prevailing rate for similar work in the locality; the Act further required that every contract contain a provision stating that disputes as to what the prevailing wage as on any given project were to be conclusively determined by the Secretary if the contracting officer was unable to resolve the controversy. The original Act thus did not provide for predetermination of prevailing wages by the Secretary; it also did not establish any enforcement mechanism. [Footnote 26]Congress soon concluded however, that the Act as originally drafted was inadequate. Discontent focused on the lack of effective enforcement provisions and the "postdetermination" of the prevailing wage. Legislative History 2. Contractors called for predetermination of prevailing wages, claiming that they had been put to unexpected expense by postcontract determinations that the prevailing wage was higher than the rate upon which they had based their hids. Ibid.; Hearings on H.R. 12 et al. before the House Committee on Labor, 72d Cong., 1st Sess., 8, 12, 14 50-51, 54-55, 58, 65 (1932). While the labor movement was divided on this issue, most of the national leadership opposed predetermination. Legislative History 2. See 75 Cong.Rec. 12379 (1932) (remarks of Rep. Ramspeck); Hearings on Page 450 U. S. 776 H.R. 12, at 24, 114, 116, 122-123. Labor was united, however, in calling for the establishment of an enforcement mechanism. Legislative History 2. See Hearings on H.R. 12, at 122-123; 75 Cong.Rec. 12379 (1932) (remarks of Rep. Ramspeck).In 1932, both Houses of Congress passed an amendment to the Act providing for predetermination of prevailing wages by the Secretary and for penalties for failure to pay the rate "stated in the advertised specifications and made a part of the contract." See S. 3847, 72d Cong., 1st Sess. (1932). The bill, however, was vetoed by the President. See Veto Message, S. Doc. No. 134, 72d Cong., 1st Sess. (1932). But in 1935, Congress succeeded in adding the predetermination and enforcement provisions found in the current statute. Act of Aug. 30, 1935, 49 Stat. 1011.The legislative history accompanying these amendments is significant in two respects. First, it indicates that Congress amended the Act to provide for predetermination of wages not only in order to end abuses, [Footnote 27] but "so that the contractor may know definitely in advance of submitting his bid what his approximate labor costs will be." S.Rep. No. 1155, 74th Cong., 1st Sess., 2 (1935); H.R.Rep. No. 1756, 74th Cong., 1st Sess., 2 (1935). Second, it demonstrates that Congress intended to give laborers and mechanics only "the same right of action against the contractor and his sureties in court Page 450 U. S. 777 which is now conferred by the bond tatute." S.Rep. No. 1155, at 2; H.R.Rep. No. 1756, at 2. [Footnote 28] To imply a private right of action here would be to defeat each of these congressional objectives.The legislative history of the 1964 amendment to the Act also cuts against respondent's position. In 1964, Congress considered and passed H.R. 6041, 88th Cong., 1st Sess., a bill to amend the Act in order to include fringe benefits within the definition of wages. Pub.L. 88-349, § 1, 78 Stat. 238. While H.R. 6041 was under consideration, Representative Goodell introduced a bill that would have amended the Page 450 U. S. 778 Act to provide for judicial review of the Secretary's wage determinations at the behest of any aggrieved person, and that also would have conferred a private right of action on any laborer or mechanic who claimed that his employer had "refused or failed to pay the wages that he is required to pay by reason of a wage determination issued by the Secretary of Labor." H.R. 9590, 88th Cong., 2d Sess., § 2, p. 4 (1964). Representative Goodell sought to have the substance of H.R. 9590 considered during the House debate on H.R. 6041. After extended debate on the merits of judicial review of Davis-Bacon determinations, however, the House invoked its rule against nongermane amendments, and therefore refused to consider Mr. Goodell's proposals. [Footnote 29] 110 Cong.Rec. 1194-1204 (1964).Since the Goodell amendments were not defeated on their merits, it cannot be said that Congress has flatly rejected the proposition that judicial review should be available under the Act. Nor can the views of this later Congress be treated as determinative of the question whether the Act's drafters intended to preclude any form of judicial review. Nonetheless, we think it significant that both the proponents and opponents of the Goodell amendments assumed that the Act did not contemplate judicial review of determinations made by the Secretary; they differed only over whether the Act should be amended to permit such review. Ibid. Further, although much of the debate centered on the desirability of permitting judiciai review of wage determinations, [Footnote 30] respondent errs in contending that that was the sole topic of discussion, for several speakers expressed their view that the Act did not permit judicial review of any determination under the Page 450 U. S. 779 Act whatsoever. [Footnote 31] In particular, Representative Bell pointed out that workers could not seek judicial review of the Secretary's determination that certain work was "the installation of equipment,' and not the type of construction work which was subject to Davis-Bacon," and "neither employers nor employees have any recourse except to beg the mercy of the Secretary or prevail upon their Congressman to intercede." [Footnote 32] Id. at 1201-1202. Thus, while not dispositive, the debate on the Goodell amendments reinforces the conclusion that it Page 450 U. S. 780 would be inappropriate for this Court to find that the Act implicitly creates the right of action contended for here.Respondent, however, asserts that a contrary inference must be drawn from the Portal-to-Portal Act of 1947, 61 Stat. 84, as amended, 29 U.S.C. § 251 et seq. Relying on the analysis set forth in McDaniel II, 548 F.2d at 694, respondent points out that § 6 of the Portal-to-Portal Act, 61 Stat. 87, 29 U.S.C. § 255(a), imposes a 2-year limitation on any cause of action for nonwillful "unpaid minimum wages, unpaid overtime compensation, or liquidated damages" under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., the Walsh-Healey Act, 41 U.S.C. § 35 et seq., or the Davis-Bacon Act. Since the Miller Act imposes a 1-year limitation on suits on the contractor's bond, 40 U.S.C. § 270b(b), respondent contends that the 2-year statute of limitations set forth in the Portal-to-Portal Act not only affirms the existence of a private cause of action under the Act, but excludes the proposition that that cause of action is limited to a suit on the Miller Act bond.We agree with amicus United States, however, that this argument reads too much into the Portal-to-Portal Act. That statute was intended to curtail the numerous suits for unpaid compensation and liquidated damages under the FLSA that were filed after this Court's decision in Anderson v. Mount Clemens Pottery Co., 328 U. S. 680 (1946). See Unexcelled Chemical Corp. v. United States, 345 U. S. 59, 345 U. S. 61 (1953). Although no portal-to-portal suits had been filed under the Davis-Bacon or Walsh-Healey Acts, see 93 Cong.Rec. 2088 (1947) (remarks of Sens. Donnell and McGrath), Congress chose to include those statutes within the scope of the Portal-to-Portal Act on the ground that they, like the FLSA, related to minimum wages, and were therefore affected by the Mount Clemens decision. See H.R.Rep. No. 71, 80th Cong., 1st Sess., 5 (1947); 93 Cong.Rec. 2088 (1947) (remarks of Sen. Donnell). The legislative history of the bills that became the Portal-to-Portal Act makes clear, however, Page 450 U. S. 781 that Congress simply did not recognize that it had created two incompatible statutes of limitations under the Davis-Bcon Act. [Footnote 33] Moreover, even if the Portal-to-Portal Act had been intended to create a longer statute of limitations for actions under the Davis-Bacon Act than that applicable to suits on the Miller Act bond, respondent has pointed to nothing in the legislative history of the Portal-to-Portal Act that suggests that Congress believed that the Davis-Bacon Act conferred a private right of action for back wages under a contract lacking prevailing wage stipulations; to the contrary, Congress' concern was to foreclose the possibility of portal-to-portal suits for back vages under contracts that did contain Davis-Bacon Act provisions. [Footnote 34] Page 450 U. S. 782CFinally, the underlying purpose of the legislative scheme indicates that Congress did not intend to create the right of action asserted by respondent. As noted above, the 1935 amendments added two key features to the Act: administrative predetermination of the minimum wages that the contractor must pay his laborers and mechanics, and a means whereby laborers and mechanics could recover back wages under a contract containing prevailing wage stipulations. The Act thus carefully balances the interests of contractors and their employees. The contractor is able to "know definitely in advance of submitting his bid what his approximate labor costs will be," [Footnote 35] S.Rep. No. 1155, at 2, while the laborer or mechanic is given a right of action to enforce the stipulated wages. To imply a private right of action to sue for Davis-Bacon wages under a contract that does not contain prevailing wage stipulations would destroy this careful balance.In addition, as petitioner and amicus United States point out, the implication of a private right of action where there has been no Davis-Bacon determination would introduce substantial uncertainty into Government contracting. In the Page 450 U. S. 783 case of cost-plus contracts, federal budgeting would be disrupted by a postcontract judicial determination that wages higher than those set forth in the contract ust be paid. Fixed-price contracting also would be adversely affected, since it is likely that contractors would submit inflated bids to take into account the possibility that they would have to pay wages higher than those set forth in the specifications. [Footnote 36] Finally, post-contract challenges would disrupt timely and efficient performance of Government contracts, and might well provoke jurisdictional disputes between construction unions and unions representing nonconstruction workers. [Footnote 37]The implication of a private right of action here would undercut as well the elaborate administrative scheme promulgated pursuant to Reorganization Plan No. 14. The goal of that plan was to introduce consistency into the administration and enforcement of the Act and related statutes; to that end, the Secretary and contracting agencies have issued detailed regulations governing, among other things, coverage determinations. The uniformity fostered by those regulations would be short-lived if courts were free to make post-contract coverage rulings. Respondent, however, replies that no administrative functions would be disrupted by judicial intervention, since Davis-Bacon stipulations are incorporated by operation of law into every federal construction contract, regardless of whether the contracting agency has made a coverage determination. But this assertion ignores the fact Page 450 U. S. 784 that the Act does not define the terms "construction, alteration, and/or repair," "public buildings or public works," and "mechanics and/or laborers." [Footnote 38] A number of commentators have noted the difficulty of determining whether particular work constitutes "construction" within the meaning of the Act, particularly when the work is performed in the context of an AEC contract involving a nuclear facility. [Footnote 39] Like other contracting agencies, AEC and its successors have developed detailed guidelines for determining whether particular work is covered by the Act. See n 15, supra. Whatever may be the merits of allowing judicial review of these complex coverage determinations prior to contracting, it clearly would be inappropriate for a court to substitute its judgment for that of the contracting agency in a private action brought after the contract was let.IVIn sum, to imply a private right of action under these circumstances would severely disrupt federal contracting. Nothing in the language, history, or purpose of the Davis-Bacon Act suggests that Congress intended that result. 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 CourtUniversities Research Assn., Inc. v. Coutu, 450 U.S. 754 (1981)Universities Research Assn., Inc. v. CoutuNo. 78-1945Argued November 10, 1980Decided April 6, 1981450 U.S. 754SyllabusSection 1(a) of the Davis-Bacon Act provides that advertised specifications for federal construction contracts in excess of $2,000 "shall contain" a provision stating the minimum wages to be paid laborers and mechanics, which wages must be based on those the Secretary of Labor determines to be prevailing in the locality, and further provides that every contract based on such specifications "shall contain" a stipulation that the contractor will pay wages not less than those stated in the specifications. Petitioner made a contract with the Atomic Energy Commission to provide scientific and management services to the United States in connection with the construction, alteration, and repair of the Fermi National Accelerator Laboratory, a high-energy physics research facility. The contract was administratively determined not to call for work subject to the Act, and therefore did not contain a prevailing wage stipulation. Respondent, a former employee of petitioner, brought suit against petitioner on behalf of himself and others similarly situated, seeking damages on the theory that petitioner had violated the Davis-Bacon Act by failing to pay prevailing wages for the construction work. The District Court entered summary judgment for petitioner on the ground that, since it appeared from the record that there were no express Davis-Bacon Act stipulations in the contract, it would be improper for the court to declare in the first instance that the contract was subject to the Act and to make appropriate wage determinations for the parties. The Court of Appeals reversed, holding that, if petitioner actually performed Davis-Bacon Act work with its own employees, respondent and his class became entitled to the prevailing wages, and the court remanded the case to allow respondent the opportunity to demonstrate, if he could, that petitioner had used him and his class to perform Davis-Bacon Act work.Held: The Davis-Bacon Act does not confer upon an employee a private right of action for back wages under a contract that has been administratively determined not to call for work subject to the Act, and thus does not contain prevailing wage stipulations. Pp. 450 U. S. 767-784. Page 450 U. S. 755(a) While requiring that certain stipulations be placed in federal construction contracts for the benefit of mechanics and laborers, § 1 of the Act does not confer rights directly on these individuals, but is simply "phrased as a directive to federal agencies engaged in the disbursement of public funds," Cannon v. University of Chicago, 441 U. S. 677, 441 U. S. 693, n. 14. That Congress did not intend to authorize a suit for back wages where there are no prevailing wage stipulations in the contract is also indicated by the absence of a provision comparable to § 3 of the Davis-Bacon Act, which confers on laborers and mechanics working under a contract containing such stipulations a conditional right of action against the contractor on the payment bond required by the Miller Act. Pp. 450 U. S. 771-773.(b) The Davis-Bacon Act's legislative history further supports the conclusion that implication of a private right of action under the circumstances of this case would be inconsistent with congressional intent. No contrary inference can be drawn from the Portal-to-Portal Act of 1947. Pp. 450 U. S. 773-781.(c) Finally, the underlying purpose of the Davis-Bacon Act's legislative scheme indicates that Congress did not intend to create the right of action asserted by respondent. To imply a private right of action to sue for Davis-Bacon Act wages under a contract that does not contain prevailing wage stipulations would destroy the careful balance the Act strikes between the interests of contractors and their employees. In addition, the implication of a private right of action where there has been no Davis-Bacon Act determination would introduce substantial uncertainty into Government contracting, and would undercut the elaborate administrative scheme promulgated to assure consistency in the administration and enforcement of the Act. Pp. 450 U. S. 782-784.595 F.2d 396, reversed and remanded.BLACKMUN, J., delivered the opinion for a unanimous Court. Page 450 U. S. 756

1978_77-1119

MR. JUSTICE BRENNAN delivered the opinion of the Court.The question presented is the constitutionality of Alabama alimony statutes which provide that husbands, but not wives, may be required to pay alimony upon divorce. [Footnote 1]On February 26, 1974, a final decree of divorce was entered, dissolving the marriage of William and Lillian Orr. That decree directed appellant, Mr. Orr, to pay appellee, Mrs. Orr, $1,240 per month in alimony. On July 28, 1976, Mrs. Orr Page 440 U. S. 271 initiated a contempt proceeding in the Circuit Court of Lee County, Ala., alleging that Mr. Orr was in arrears in his alimony payments. On August 19, 1976, at the hearing on Mrs. Orr's petition, Mr. Orr submitted in his defense a motion requesting that Alabama's alimony statutes be declared unconstitutional because they authorize courts to place an obligation of alimony upon husbands, but never upon wives. The Circuit Court denied Mr. Orr's motion and entered judgment against him for $5,524, covering back alimony and attorney fees. Relying solely upon his federal constitutional claim, Mr. Orr appealed the judgment. On March 16, 1977, the Court of Civil Appeals of Alabama sustained the constitutionality of the Alabama statutes, 351 So. 2d 904. On May 24, the Supreme Court of Alabama granted Mr. Orr's petition for a writ of certiorari, but on November 10, without court opinion, quashed the writ as improvidently granted. 351 So. 2d 906. We noted probable jurisdiction, 436 U.S. 924 (1978). We now hold the challenged Alabama statutes unconstitutional, and reverse.IWe first address three preliminary questions not raised by the parties or the Alabama courts below, but which nevertheless may be jurisdictional, and therefore are considered of our own motion.The first concerns the standing of Mr. Orr to assert in his defense the unconstitutionality of the Alabama statutes. It appears that Mr. Orr made no claim that he was entitled to an award of alimony from Mrs. Orr, but only that he should not be required to pay alimony if similarly situated wives could not be ordered to pay. [Footnote 2] It is therefore possible that his Page 440 U. S. 272 success here will not ultimately bring him relief from the judgment outstanding against him, as the State could respond to a reversal by neutrally extending alimony rights to needy husbands, as well as wives. In that event, Mr. Orr would remain obligated to his wife. It is thus argued that the only "proper plaintiff" would be a husband who requested alimony for himself, and not one who merely objected to paying alimony.This argument quite clearly proves too much. In every equal protection attack upon a statute challenged as underinclusive, the State may satisfy the Constitution's commands either by extending benefits to the previously disfavored class or by denying benefits to both parties (e.g., by repealing the statute as a whole). In this case, if held unconstitutional, the Alabama divorce statutes could be validated by, inter alia, amendments which either (1) permit awards to husbands as well as wives or (2) deny alimony to both parties. It is true that, under the first disposition, Mr. Orr might gain nothing from his success in this Court, although the hypothetical "requesting" plaintiff would. However, if, instead, the State takes the second course and denies alimony to both spouses, it is Mr. Orr, and not the hypothetical plaintiff, who would benefit. Because we have no way of knowing how the State will, in fact, respond, unless we are to hold that underinclusive statutes can never be challenged because any plaintiff's success can theoretically be thwarted, Mr. Orr must be held to have standing here. We have on several occasions considered this inherent problem of challenges to underinclusive statutes, Stanton v. Stanton, 421 U. S. 7, 421 U. S. 17 (1975); Craig v. Boren, 429 U. S. 190, 429 U. S. 210 n. 24 (1976), and have not denied a plaintiff standing on this ground. Page 440 U. S. 273There is no question but that Mr. Orr bears a burden he would not bear were he female. The issue is highlighted, although not altered, by transposing it to he sphere of race. There is no doubt that a state law imposing alimony obligations on blacks but not whites could be challenged by a black who was required to pay. The burden alone is sufficient to establish standing. Our resolution of a statute's constitutionality often does "not finally resolve the controversy as between th[e] appellant and th[e] appellee," Stanton v. Stanton, 421 U.S. at 421 U. S. 17. We do not deny standing simply because the "appellant, although prevailing here on the federal constitutional issue, may or may not ultimately win [his] lawsuit." Id. at 421 U. S. 18. The holdings of the Alabama courts stand as a total bar to appellant's relief; his constitutional attack holds the only promise of escape from the burden that derives from the challenged statutes. He has therefore"alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which th[is] court so largely depends for illumination of difficult constitutional questions,"Linda R. S. v. Richard D., 410 U. S. 614, 410 U. S. 616 (1973), quoting Baker v. Carr, 369 U. S. 186, 369 U. S. 204 (1962). Indeed, on indistinguishable facts, this Court has stated that a party's standing will be sustained. In Linda R. S. v. Richard D., supra at 410 U. S. 619 n. 5 (MARSHALL, J.), we stated that the parent of a legitimate child who must by statute pay child support has standing to challenge the statute on the ground that the parent of an illegitimate child is not equally burdened. [Footnote 3] Page 440 U. S. 274A second preliminary question concerns the timeliness of appellant's challenge to the constitutionality of the statutes. No constitutional challenge was made at the time of the original divorce decree; Mr. Orr did not interpose the Constitution until his ex-wife sought a contempt judgment against him for his failure to abide by the terms of the decree. This unexcused tardiness might well have constituted a procedural default under state law, and if Alabama had refused to hear Mr. Orr's constitutional objection on that ground, we might have been without jurisdiction to consider it here. See C. Wright, Federal Courts 541-542 (3d ed.1976) .But, in this case, neither Mrs. Orr nor the Alabama courts at any time objected to the timeliness of the presentation of the constitutional issue. Instead, the Alabama Circuit and Civil Appeals Courts both considered the issue to be properly presented, and decided it on the merits. See 351 So. 2d at 905; App. to Juris.Statement 22a. In such circumstances, the objection that Mr. Orr's complaint"'comes too late' . . . is clearly untenable. . . . [S]ince the state court deemed the federal constitutional question to be before it, we could not treat the decision below as resting upon an adequate and independent state ground even if we were to conclude that the state court might properly have relied upon such a ground to avoid deciding the federal question."Beecher v. Alabama, 389 U. S. 35, 389 U. S. 37 n. 3 (1967). This is merely an application of the"elementary rule that it is irrelevant to inquire . . . when a Federal question was raised in a court Page 440 U. S. 275 below when it appears that such question was actually considered and decided."Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123, 234 U. S. 134 (1914). Accord, Harlin v. Missouri, 439 U. S. 459 (1979); Jenkins v. Georgia, 418 U. S. 153, 418 U. S. 157 (1974); Raley v. Ohio, 360 U. S. 423, 360 U. S. 436 (1959). See C. Wright, supra at 542. [Footnote 4]The third preliminary question arises from indications in the record that Mr. Orr's alimony obligation was part of a stipulation entered into by the parties, which was then incorporated into the divorce decree by the Lee County Circuit Court. Thus, it may be that, despite the unconstitutionality of the alimony statutes, Mr. Orr may have a continuing obligation to his former wife based upon that agreement -- in essence, a matter of state contract law. [Footnote 5] If the Alabama Page 440 U. S. 276 courts had so held, and had anchored their judgments in this case on that basis, an independent and adequate state ground might exist and we would be without power to hear the constitutional argument. See Herb v. Pitcairn, 324 U. S. 117, 324 U. S. 125-126 (1945); Fox Film Corp. v. Muller, 296 U. S. 207 (1935). And if there were ambiguity as to whether the State's decision was based on federal or state grounds, it would be open to this Court not to determine the federal question, but to remand to the state courts for clarification as to the ground of the decision. See California v. Krivda, 409 U. S. 33 (1972).But there is no ambiguity here. At no time did Mrs. Orr raise the stipulation as a possible alternative ground in support of her judgment. Indeed, her brief in the Alabama Court of Civil Appeals expressly stated that"[t]he appellee agrees that the issue before this Court is whether the Alabama alimony laws are unconstitutional because of the gender based classification made in the statutes."App. to Juris.Statement 25a. The Alabama Circuit and Civil Appeals Courts reached and decided the federal question without considering any state law issues, the latter specifying that"[t]he sole issue before this court is whether Alabama's alimony statutes are unconstitutional. We find they are not unconstitutional, and affirm."351 So. 2d at 905. While no reason was given by the State Supreme Court's majority for quashing the writ of certiorari, the concurring and dissenting opinions mention only the federal constitutional issue and do not mention the stipulation. See 351 So. 2d at 906-910. And Mrs. Orr did not even raise the point in this Court. On this record, then, our course is clear and dictated by a long line of decisions."Where the state court does not decide against a petitioner or appellant upon an independent state ground, but deeming the federal question to be before it, actually Page 440 U. S. 277 entertains and decides that question adversely to the federal right asserted, this Court has jurisdiction to review the judgment if, as here, it is a final judgment. We cannot refuse jurisdiction because the state court might have based its decision, consistently with the record, upon an independent and adequate nonfederal ground."Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 303 U. S. 98 (1938). Accord, United Air Lines, Inc. v. Mahin, 410 U. S. 623, 410 U. S. 63 631 (1973); Poafpybitty v. Skelly Oil Co., 390 U. S. 365, 390 U. S. 375-376 (1968); Steele v. Louisville & Nashville R. Co., 323 U. S. 192, 323 U. S. 197 n. 1 (1944); International Steel & Iron Co. v. National Surety Co., 297 U. S. 657, 297 U. S. 666 (1936); Grayson v. Harris, 267 U. S. 352, 267 U. S. 358 (1925); Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 264 U. S. 120 (1924); Rogers v. Hennepin County, 240 U. S. 184, 240 U. S. 188-189 (1916). See C. Wright, Federal Courts, at 544. [Footnote 6]Our analysis of these three preliminary questions, therefore, indicates that we do have jurisdiction over the constitutional challenge asserted by Mr. Orr. [Footnote 7] As an Art. III "case or Page 440 U. S. 278 controversy" has been properly presented to this Court, we now turn to the merits. [Footnote 8]IIIn authorizing the imposition of alimony obligations on husbands, but not on wives, the Alabama statutory scheme"provides that different treatment be accorded . . . on the basis of . . . sex; it thus establishes a classification subject to scrutiny under the Equal Protection Clause,"Reed v. Page 440 U. S. 279 Reed, 404 U. S. 71, 404 U. S. 75 (1971). The fact that the classification expressly discriminates against men, rather than women, does not protect it from scrutiny. Craig v. Boren, 429 U. S. 190 (1976). "To withstand scrutiny" under the Equal Protection Clause,"'classifications by gender must serve important governmental objectives, and must be substantially related to achievement of those objectives.'"Califano v. Webster, 430 U. S. 313, 430 U. S. 316-317 (1977). We shall, therefore, examine the three governmental objectives that might arguably be served by Alabama's statutory scheme.Appellant views the Alabama alimony statutes as effectively announcing the State's preference for an allocation of family responsibilities under which the wife plays a dependent role, and as seeking for their objective the reinforcement of that model among the State's citizens. Cf. Stern v. Stern, 165 Conn.190, 332 A.2d 78 (1973). We agree, as he urges, that prior cases settle that this purpose cannot sustain the statutes. [Footnote 9] Stanton v. Stanton, 421 U. S. 7, 421 U. S. 10 (1975), held that the "old notio[n]" that "generally it is the man's primary responsibility Page 440 U. S. 280 to provide a home and its essentials," can no longer justify a statute that discriminates on the basis of gender. "No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas," id. at 421 U. S. 14-15. See also Craig v. Boren, supra, at 429 U. S. 198. If the statute is to survive constitutional attack, therefore, it must be validated on some other basis.The opinion of the Alabama Court of Civil Appeals suggests other purposes that the statute may serve. Its opinion states that the Alabama statutes were "designed" for "the wife of a broken marriage who needs financial assistance," 351 So. 2d at 905. This may be read as asserting either of two legislative objectives. One is a legislative purpose to provide help for needy spouses, using sex as a proxy for need. The other is a goal of compensating women for past discrimination during marriage, which assertedly has left them unprepared to fend for themselves in the working world following divorce. We concede, of course, that assisting needy spouses is a legitimate and important governmental objective. We have also recognized"[r]eduction of the disparity in economic condition between men and women caused by the long history of discrimination against women . . . as . . . an important governmental objective,"Califano v. Webster, supra, at 430 U. S. 317. It only remains, therefore, to determine whether the classification at issue here is "substantially related to achievement of those objectives." Ibid. [Footnote 10]Ordinarily, we would begin the analysis of the "needy spouse" objective by considering whether sex is a sufficiently "accurate proxy," Craig v. Boren, supra, at 429 U. S. 204, for dependency to establish that the gender classification rests "upon Page 440 U. S. 281 some ground of difference having a fair and substantial relation to the object of the legislation,'" Reed v. Reed, supra at 404 U. S. 76. Similarly, we would initially approach the "compensation" rationale by asking whether women had, in fact, been significantly discriminated against in the sphere to which the statute applied a sex-based classification, leaving the sexes "not similarly situated with respect to opportunities" in that sphere, Schlesinger v. Ballard, 419 U. S. 498, 419 U. S. 508 (1975). Compare Califano v. Webster, supra at 430 U. S. 318, and Kahn v. Shevin, 416 U. S. 351, 416 U. S. 353 (1974), with Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S. 648 (1975). [Footnote 11]But in this case, even if sex were a reliable proxy for need, and even if the institution of marriage did discriminate against women, these factors still would "not adequately justify the salient features of" Alabama's statutory scheme, Craig v. Boren, supra at 429 U. S. 202-203. Under the statute, individualized hearings at which the parties' relative financial circumstances are considered already occur. See Russell v. Russell, 247 Ala. 284, 286, 24 So. 2d 124, 126 (1945); Ortman v. Ortman, 203 Ala. 167, 82 So. 417 (1919). There is no reason, therefore, to use sex as a proxy for need. Needy males could be helped along with needy females with little if any additional burden on the State. In such circumstances, not even an administrative convenience rationale exists to justify operating by generalization or proxy. [Footnote 12] Similarly, since individualized hearings can Page 440 U. S. 282 determine which women were, in fact, discriminated against vis-a-vis their husbands, as well as which family units defied the stereotype and left the husband dependent on the wife, Alabama's alleged compensatory purpose may be effectuated without placing burdens solely on husbands. Progress toward fulfilling such a purpose would not be hampered, and it would cost the State nothing more, if it were to treat men and women equally by making alimony burdens independent of sex."Thus, the gender-based distinction is gratuitous; without it, the statutory scheme would only provide benefits to those men who are, in fact, similarly situated to the women the statute aids,"Weinberger v. Wiesenfeld, supra, at 420 U. S. 653, and the effort to help those women would not in any way be compromised.Moreover, use of a gender classification actually produces perverse results in this case. As compared to a gender-neutral law placing alimony obligations on the spouse able to pay, the present Alabama statutes give an advantage only to the financially secure wife whose husband is in need. Although such a wife might have to pay alimony under a gender-neutral statute, the present statutes exempt her from that obligation. Thus, "[t]he [wives] who benefit from the disparate treatment are those who were . . . nondependent on their husbands," Califano v. Goldfarb, 430 U. S. 199, 430 U. S. 221 (1977) (STEVENS, J., concurring in judgment). They are precisely those who are not "needy spouses" and who are "least likely to have been victims of . . . discrimination," ibid., by the institution of marriage. A gender-based classification which, as compared to a Page 440 U. S. 283 gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny.Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing stereotypes about the "proper place" of women and their need for special protection. Cf. United Jewish Organizations v. Carey, 430 U. S. 144, 430 U. S. 173-174 (1977) (opinion concurring in part). Thus, even statutes purportedly designed to compensate for and ameliorate the effects of past discrimination must be carefully tailored. Where, as here, the State's compensatory and ameliorative purposes are as well served by a gender-neutral classification as one that gender classifies, and therefore carries with it the baggage of sexual stereotypes, the State cannot be permitted to classify on the basis of sex. And this is doubly so where the choice made by the State appears to redound -- if only indirectly -- to the benefit of those without need for special solicitude.IIIHaving found Alabama's alimony statutes unconstitutional, we reverse the judgment below and remand the cause for further proceedings not inconsistent with this opinion. That disposition, of course, leaves the state courts free to decide any questions of substantive state law not yet passed upon in this litigation. Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 303 U. S. 109 (1938); C. Wright, Federal Courts, at 544. See South Dakota v. Opperman, 428 U. S. 364, 428 U. S. 396 (1976) (MARSHALL, J., dissenting); United Air Lines, Inc. v. Mahin, 410 U.S. at 410 U. S. 632; California v. Green, 399 U. S. 149, 399 U. S. 169-170 (1970); Schuylkill Trust Co. v. Pennsylvania, 302 U. S. 506, 302 U. S. 512 (1938); Georgia R. & Elec. Co. v. Decatur, 297 U. S. 620, 297 U. S. 623-624 (1936). Therefore, it is open to the Alabama courts on remand to consider whether Mr. Orr's stipulated agreement to Page 440 U. S. 284 pay alimony, or other grounds of gender-neutral state law, bind him to continue his alimony payments. [Footnote 13]Reversed

U.S. Supreme CourtOrr v. Orr, 440 U.S. 268 (1979)Orr v. OrrNo. 77-1119Argued November 27, 1978Decided March 5, 1979440 U.S. 268SyllabusFollowing a stipulation between appellant husband and appellee wife, in which appellant agreed to pay appellee alimony, an Alabama court, acting pursuant to state alimony statutes under which husbands, but not wives, may be required to pay alimony upon divorce, ordered appellant to make monthly alimony payments. Some two years thereafter, appellee filed a petition seeking to have appellant adjudged in contempt for failing to maintain the alimony payments. At the hearing on the petition appellant, though not claiming that he was entitled to an alimony award from appellee, made the contention (advanced for the first time in that proceeding) that the Alabama statutes, by virtue of their reliance on a gender-based classification, violated the Equal Protection Clause of the Fourteenth Amendment. The trial court, ruling adversely to appellant on that issue, entered judgment against him, which was affirmed on appeal.Held:1. This Court has jurisdiction over appellant's appeal. Pp. 440 U. S. 271-278.(a) Appellant's failure to ask for alimony for himself does not deprive him of standing to attack the constitutionality of the Alabama statutes for underinclusiveness. That attack holds the only promise of relief from the burden deriving from the challenged statutes, and appellant has therefore"alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which th[is] court so largely depends for illumination of difficult constitutional questions."Baker v. Carr, 369 U. S. 186, 369 U. S. 204. Pp. 440 U. S. 271-273.(b) Had the courts below refused to entertain appellant's constitutional contention on the ground that it was not timely made under applicable state procedures, this Court might have lacked jurisdiction to consider the contention; but no timeliness point was raised or considered below and the constitutional issue was decided on the merits. Under these circumstances, it is irrelevant whether the decision below could have been based upon an adequate and independent state ground. Pp. 440 U. S. 274-275.(c) No point was raised or considered below that appellant, by virtue of the stipulation, was obliged to make the alimony payments under state contract law."Where the state court does not decide Page 440 U. S. 269 against [an] appellant upon an independent state ground, but deeming the federal question to be before it, actually . . . decides that question adversely to the federal right asserted, this Court has jurisdiction to review the judgment if, as here, it is . . . final. . . ."Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 303 U. S. 98. Pp. 440 U. S. 275-278.2. The Alabama statutory scheme of imposing alimony obligations on husbands, but not wives, violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 440 U. S. 278-283.(a) "To withstand scrutiny" under the Equal Protection Clause,"'classifications by gender must serve important governmental objectives, and must be substantially related to achievement of those objectives.'"Califano v. Webster, 430 U. S. 313, 430 U. S. 316-317. Pp. 440 U. S. 278-279.(b) The statutes cannot be validated on the basis of the State's preference for an allocation of family responsibilities under which the wife plays a dependent role."No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas."Stanton v. Stanton, 421 U. S. 7, 421 U. S. 14-15. Pp. 440 U.S. 279-280.(c) Though it could be argued that the Alabama statutory scheme is designed to provide help for needy spouses, using sex as a proxy for need, and to compensate women for past discrimination during marriage, which assertedly has left them unprepared to fend for themselves in the working world following divorce, these considerations would not justify that scheme, because, under the Alabama statutes, individualized hearings at which the parties' relative financial circumstances are considered already occur. Since such hearings can determine which spouses are needy, as well as which wives were, in fact, discriminated against, there is no reason to operate by generalization. "Thus, the gender-based distinction is gratuitous. . . ." Weinberger v. Wiesenfeld, 420 U. S. 636, 420 U. S. 653. Pp. 440 U. S. 280-282.(d) Use of a gender classification, moreover, actually produces perverse results in this case, because only a financially secure wife whose husband is in need derives an advantage from the Alabama scheme, as compared to a gender-neutral one. Pp. 440 U. S. 282-283.3. The question remains open on remand whether appellant's stipulated agreement to pay alimony, or other grounds of gender-neutral state law, bind him to continue his alimony payments. Pp. 440 U. S. 283-284.351 So. 2d 904, reversed and remanded.BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BLACKMUN, Page 440 U. S. 270 J., post, p. 440 U. S. 284, and STEVENS, J., post, p. 440 U. S. 284, filed concurring opinions. POWELL, J., filed a dissenting opinion, post, p. 440 U. S. 285. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 440 U. S. 290.

1958_124

MR. JUSTICE WHITTAKER delivered the opinion of the Court.Upon his plea of guilty to a charge of kidnaping in the District Court of Tulsa County, Oklahoma, petitioner was sentenced to death. On appeal, the Criminal Court of Appeals of Oklahoma affirmed, Okl.Cr., 321 P.2d 990, and certiorari was sought on the ground that the sentence was imposed in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. We granted the writ to determine that question. 357 U.S. 925.The undisputed facts are that, on June 17, 1956, within a few hours after robbing a filling station attendant in Tulsa, Oklahoma, and eluding police in an ensuing chase, petitioner forced his way into an automobile being driven by one Tommy Cooke, a young divinity student, as it stopped for a traffic light in that city, and, at gunpoint, forced Cooke to drive beyond the City and County of Tulsa and for a considerable distance through northeastern Page 358 U. S. 578 Oklahoma to a point on a dead-end road in Muskogee County where he shot and killed him, and then escaped in the car. On June 19, 1956, petitioner was apprehended, and, soon afterward, he was charged in the District Court of Muskogee County with murdering Cooke in that county. On arraignment, he entered a plea of not guilty, but, during the course of his trial, petitioner, on November 19, 1956, withdrew that plea and entered a plea of guilty as charged. He was thereupon convicted and sentenced to life imprisonment in the Oklahoma State Penitentiary. [Footnote 1]Thereafter, on December 17, 1956, petitioner was charged in the District Court of Tulsa County with kidnaping Cooke in that county on June 17, 1956, in violation of Okl.Stat.1951, Tit. 21, § 745. [Footnote 2] At his arraignment on December 19, 1956, petitioner entered a plea of not guilty, but, on January 30, 1957, a few days before the scheduled date of trial, he withdrew that plea and entered a plea of guilty as charged. After interrogating petitioner to make sure that he had entered the plea of guilty voluntarily and that he understood that he might be sentenced to death upon it, [Footnote 3] the court accepted the plea Page 358 U. S. 579 and adjudged petitioner guilty of the crime of kidnaping Cooke as charged. Thereupon, the court asked counsel for petitioner if he wished to be heard regarding the sentence to be imposed, and counsel replied that he preferred to reserve his statement until after the State's Attorney had spoken. The State's Attorney then made a statement -- reading much of it from a prepared statement -- recounting the armed robbery of the filling station attendant and the following chase by and elusion of the Tulsa police; reciting the gruesome details of the kidnaping of Cooke in Tulsa County and of his murder in Muskogee County; stating petitioner's past criminal record as shown Page 358 U. S. 580 by the files of the Federal Bureau of Investigation; [Footnote 4] and concluding with a request for a death sentence. Counsel for petitioner objected to any reference to the murder on the ground that sentence for that crime had already been imposed by the District Court of Muskogee County and that it could not again lawfully be considered in imposing sentence on the kidnaping charge. The court, expressing the view that it was "proper to advise the court of all the facts [occurring while petitioner] had the victim in his charge and under his control," overruled the objection. After the State's Attorney had concluded, counsel for petitioner put in evidence a transcript of the sentencing proceedings had in the District Court of Muskogee County in the murder case, and made an extended plea for a sentence to life imprisonment, rather than a sentence to death.After thus fully hearing the parties, the court deferred the imposition of sentence for two days. Upon reconvening, the court called petitioner to the bar and asked him whether he wished to make any correction in the statement that had been made to the court by the State's Attorney. Petitioner answered that he did not, and that the matters related in that statement were true. [Footnote 5] Thereupon, Page 358 U. S. 581 the court sentenced petitioner to death, and, in the course of his pronouncement, the judge said, among other things, that he had considered the facts"which [had] been stated [by counsel] and which [petitioner had] admitted were [involved in] this crime [of kidnaping], committed in Tulsa County, which resulted in the murder of the victim, [all of] which the Court takes into consideration . . . as a continuing thing."As stated, petitioner's broad claim is that these proceedings show that the death sentence was determined and imposed in violation of the Due Process Clause of the Fourteenth Amendment. In support of that position, he makes, and variously repeats, a number of arguments which, upon analysis, come down to three contentions: first, that the trial court violated the presentence procedure prescribed by Okl.Stat.1951, Tit. 22, §§ 973, 974 and 975, in permitting the State's Attorney to make an unsworn statement to the court of the details of the crime and of petitioner's criminal record, and that this also denied to him the rights of confrontation and cross-examination; second, that the court, in taking the murder into consideration in imposing sentence on the kidnaping charge, punished him a second time for the same offense; and, third, that, in any event, the sentence to death for kidnaping was "disproportionate" to that crime and to Page 358 U. S. 582 the life sentence that had earlier been imposed upon him for the "ultimate" crime of murder.Petitioner's contentions that the trial court deprived him of his legal rights and of fundamental fairness in failing to pursue the formal presentence procedures prescribed by Okl.Stat.1951, Tit. 22, §§ 973, 974 and 975, and in permitting the State's Attorney to make an unsworn statement to the court of the details of the crime and of petitioner's criminal record were also made by petitioner in the Criminal Court of Appeals of Oklahoma. That court rejected those contentions. Sections 973-975 provide in substance that, after a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the suggestion of either party that there are circumstances which may be properly taken into view, either in aggravation or mitigation of the punishment, may, in its discretion, hold a formal hearing and take evidence thereon. [Footnote 6] The Oklahoma court held that whether those procedures shall be used is discretionary with the trial court, and that, at all events, petitioner waived their use by failing to request a hearing under those statutes. In construing those statutes it said:"But two things are clear under the provisions of § 973. First, Page 358 U. S. 583 pursuing this method of procedure is a matter of the trial court's sound discretion. Second, its use is further contingent upon the request of either the state or the defendant."It further said:"It is contended that, under the provisions of § 975, it is the mandatory duty of the court to hear witnesses. But, in construing §§ 974 and 975 in light of the provisions of § 973, we are of the opinion that both the provisions of § 974 and § 975 are contingent upon the request for evidence under the provisions of § 973, [and that,] [w]hen the parties fail to make a request for the privilege thereof, the same is waived and some other method of supplying the court with the necessary information for the pronouncement of judgment and sentence may be substituted instead."This construction of the State's statutes by its court of last resort must be accepted here.It is not contended that petitioner requested or suggested that the trial court hear evidence in mitigation of the sentence. Nor did petitioner request or suggest that the court require the State to offer evidence in support of the aggravating circumstances. In these circumstances, we cannot say that petitioner was deprived of any right or of fundamental fairness by the fact that the trial court did not pursue the presentencing procedures prescribed by the Oklahoma statutes.Nor did the State's Attorney's statement of the details of the crime and of petitioner's criminal record deprive petitioner of fundamental fairness or of any right of confrontation or cross-examination. As we have seen, the Court of Criminal Appeals of Oklahoma held in this case that, when petitioner failed to request the privilege of adducing evidence in mitigation of the crime, and thereby waived the presentence procedures prescribed by §§ 973-975, the law of Oklahoma authorized"some other method of supplying the court with the necessary information for the pronouncement of judgment and sentence [to] be Page 358 U. S. 584 substituted instead,"and it held that the State's Attorney's statement was a proper method in these circumstances under the law of Oklahoma. Moreover, after the State's Attorney had made his statement, petitioner, upon interrogation by the court, stated that the recitals of that statement were true. See Note 5 This alone should be a complete answer to the contention. But we go on to consider this Court's opinion in Williams v. New York, 337 U. S. 241. This Court there dealt with very similar contentions, and held that, once the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court, but may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or "out of court" information relative to the circumstances of the crime and to the convicted person's life and characteristics.These considerations make it clear that the State's Attorney's statement of the details of the crime and of petitioner's criminal record -- all admitted by petitioner to be true -- did not deprive petitioner of fundamental fairness or of any right of confrontation or cross-examination.Petitioner's further claim that the sentence to death for kidnaping was "disproportionate" to that crime and to the life sentence that had earlier been imposed upon him for the "ultimate" crime of murder proceeds on the basis that the sentence for kidnaping was excessive, that the murder was the greater offense, and that the sentence for the lesser crime of kidnaping ought not, in conscience and with due regard for fundamental fairness, exceed the life sentence that was imposed in another jurisdiction for the murder. But the Due Process Clause of the Fourteenth Amendment does not, nor does anything in the Constitution, require a State to fix or impose any particular penalty for any crime it may define, or to impose the same or "proportionate" sentences for separate and independent crimes. Therefore, we cannot say that the sentence to death for the kidnaping, which was within the range of punishments authorized for that crime by the law of the State, denied to petitioner due process of Page 358 U. S. 587 law or any other constitutional right. Nor, in view of the fact that kidnaping and murder are separate and independent offenses in Oklahoma, is there any merit in petitioner's collateral claim that what he calls "the lesser crime" of kidnaping "merged" in what he calls "the greater crime" of murder, and that the sentence to life imprisonment for the murder was a bar to the imposition of any sentence for the kidnaping, or at least to any greater sentence than was imposed for the murder, and that imposition of a death sentence for the kidnaping deprived him of due process in violation of the Fourteenth Amendment.We have now treated with all of petitioner's claims, and, failing to find any deprivation by the Oklahoma courts of any of his fundamental rights, we must hold that petitioner was not denied due process of law.Affirmed

U.S. Supreme CourtWilliams v. Oklahoma, 358 U.S. 576 (1959)Williams v. OklahomaNo. 124Argued January 21, 1959Decided February 24, 1959358 U.S. 576SyllabusWhile fleeing from police after robbing a filling station, petitioner forced his way at gunpoint into the automobile of one Cooke, forced him to drive far into the country, there shot and killed him, and escaped in his car. Charged in an Oklahoma court with murder, he entered a plea of guilty and was sentenced to life imprisonment. Thereafter, he was charged in another Oklahoma court with the kidnaping involved in the same occurrence. While represented by counsel and after being warned by the court that conviction might result in a death sentence, he pleaded guilty and was convicted. Before sentencing him, the court permitted the State's Attorney to make an unsworn statement in which he recounted at length the armed robbery, the chase, the elusion of police, the gruesome details of the kidnaping and murder, and petitioner's past criminal record, and petitioner was sentenced to death on the kidnaping charge. Under Oklahoma law, kidnaping and murder are separate and distinct offenses, and petitioner made no claim prior to his conviction that he was being put twice in jeopardy for the same offense. Under Oklahoma law, the granting of a presentence hearing at which testimony is taken is discretionary with the trial court, and petitioner did not request such a hearing.Held: Petitioner was not denied due process of law in violation of the Fourteenth Amendment. Pp. 358 U. S. 577-587.(a) On the record, this Court cannot say that petitioner was deprived of any right or of fundamental fairness by the fact that the trial court did not pursue the presentencing procedures prescribed by the Oklahoma statutes. Pp. 358 U. S. 582-583.(b) The statement by the State's Attorney of the details of the crime and of petitioner's criminal record -- all admitted by petitioner to be true -- did not deprive petitioner of fundamental fairness or of any right of confrontation or cross-examination. Pp. 358 U. S. 583-584.(c) On the record in this case, this Court cannot say that the sentencing judge was not entitled to consider the murder, along with all other circumstances involved, in determining the proper sentence for the kidnaping. Pp. 358 U. S. 584-586. Page 358 U. S. 577(d) Since kidnaping and murder are separate and distinct crimes under Oklahoma law, the court's consideration of the murder as a circumstance involved in the kidnaping cannot be said to have resulted in punishing petitioner a second time fol the same offense, nor to have denied him due process of law in violation of the Fourteenth Amendment. P. 358 U.S. 586.(e) This Court cannot say that the death sentence for kidnaping, which was within the range of punishments authorized for that crime by Oklahoma law, denied to petitioner due process of law or any other constitutional right. Pp. 358 U.S. 586-587.321 P.2d 990, affirmed.

1976_75-718

MR. JUSTICE STEWART delivered the opinion of the Court.These cases, like Teamsters v. United States, ante p. 431 U. S. 324, involve alleged employment discrimination on the part of an employer and unions in the trucking industry. The employer, East Texas Motor Freight System, Inc., is a common carrier that employs city and over-the-road, or "line," truckdrivers. The company has a "no-transfer" policy, prohibiting drivers from transferring between terminals or from city driver to line driver jobs. [Footnote 1] In addition, under the applicable collective bargaining agreements between the company and the unions, competitive seniority runs only from the date an employee enters a particular bargaining unit, so that a line driver's Page 431 U. S. 398 competitive seniority does not take into account any time he may have spent in other jobs with the company. [Footnote 2]The respondents brought this suit against the company and the unions in a Federal District Court, challenging the above practices. Although their complaint denominated the cause as a class action, they did not move for class certification in the trial court. After a two-day hearing, the court dismissed the class allegations of the complaint and decided against the individual respondents on the merits. The Court of Appeals for the Fifth Circuit reversed, after itself certifying what it considered an appropriate class and holding that the no-transfer rule and the seniority system violated the statutory rights of that class under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V). 505 F.2d 40. This Court granted certiorari to review the judgment of the Court of Appeals. 425 U.S. 990.IThe respondents are three Mexican-Americans who initiated this litigation as the named plaintiffs, Jesse Rodriguez, Sadrach Perez, and Modesto Herrera. They were employed as city drivers at the company's San Antonio terminal, and were members of Teamsters Local Union 657 and of the Southern Conference of Teamsters. There was no line driver operation at the San Antonio terminal, and the respondents stipulated that they had not been discriminated against when they were first hired. In August, 1970, some years after they were hired, each of them applied in writing for a line driver job. In accord with its no-transfer policy, the company declined to consider these applications on their individual merits. The respondents then filed complaints with the Equal Employment Opportunity Commission, and after receiving Page 431 U. S. 399 "right to sue" letters from the Commission, see 42 U.S.C. § 2000e-5(e), they brought this lawsuit.According to the complaint, the suit was brought on behalf of the named plaintiffs and all Negroes and Mexican-Americans who had been denied equal employment opportunities with the company because of their race or national origin. The complaint specifically alleged that the appropriate class should consist of all"East Texas Motor Freight's Mexican-American and Black in-city drivers included in the collective bargaining agreement entered into between East Texas Motor Freight and the Southern Conference of Teamsters covering the State of Texas. Additionally that such class should properly be composed of all Mexican-American and Black applicants for line driver positions with East Texas Motor Freight . . . from July 2, 1965 [the effective date of Title VII] t present. [Footnote 3]"Despite the class allegations in their complaint, the plaintiffs did not move prior to trial to have the action certified as a class action pursuant to Fed.Rule Civ.Proc. 23, and no such certification was made by the District Judge. Indeed, the plaintiffs had stipulated before trial that"'the only issue presently before the Court pertaining to the company is whether the failure of the Defendant East Texas Motor Page 431 U. S. 400 Freight to consider Plaintiffs' line driver applications constituted a violation of Title VII and 42 U.S.C. § 1981.'"App. 82. And the plaintiffs confined their evidence and arguments at trial to their individual claims. The defendants responded accordingly, with much of their proof devoted to showing that Rodriguez, Perez, and Herrera were not qualified to be line drivers.Following trial, the District Court dismissed the class action allegations. It stressed the plaintiffs' failure to move for a prompt determination of the propriety of class certification, their failure to offer evidence on that question, their concentration at the trial on their individual claims, their stipulation that the only issue to be determined concerned the company's failure to act on their applications, and the fact that, contrary to the relief the plaintiffs sought, see n 3, supra, a large majority of the membership of Local 657 had recently rejected a proposal calling for the merger of city driver and line driver seniority lists with free transfer between jobs. [Footnote 4]The District Court also held against the named plaintiffs on their individual claims. It ruled that the no-transfer policy and the seniority system were proper business practices, neutrally applied, and that the company had not discriminated against the plaintiffs or retaliated against them for filing charges with the EEOC. The court further found:"None of the plaintiff employees could satisfy all of the qualifications for a road driver position according to the company manual due to age or weight or driving record. . . . The driving, work, and/or physical records of the plaintiffs are of such nature that only casual consideration need be given to determine that the plaintiffs cannot qualify to become road drivers."App. 64. Page 431 U. S. 401The Court of Appeals for the Fifth Circuit reversed. With respect to the propriety of the class action, the appellate court discounted entirely the plaintiffs' failure to move for certification. Determination of the class nature of a suit, the court ruled, is a "responsibility [that] falls to the court." 505 F.2d at 50. Although the plaintiffs had acknowledged on appeal that only their individual claims had been tried, and had requested no more than that the case be remanded to the trial court for consideration of the class action allegations, the Court of Appeals itself certified a class consisting of all of the company's Negro and Mexican-Ameriean city drivers covered by the applicable collective bargaining agreements for the State of Texas. Stating that "the requirements of Rule 23(a) must be read liberally in the context of suits brought under Title VII and Section 1981," ibid., the court found that the named plaintiffs could "fairly and adequately protect the interests of the class.'" Ibid. The court minimized the antagonism between the plaintiffs and other city drivers with respect to the complaint's demand that seniority lists be merged, since"[t]he disagreement . . . concerned only the proper remedy; there was no antagonism with regard to the contention that the defendants practiced discrimination against the plaintiff class."Id. at 51. [Footnote 5]After certifying the class, the Court of Appeals went on to find classwide liability against the company and the union on the basis of the proof adduced at the trial of the individual claims. Contrary to the understanding of the judge who had tried the case, the appellate court determined that the trial had proceeded "as in a class action," with the acquiescence of Page 431 U. S. 402 the judge and the defendants. Id. at 52. [Footnote 6] The parties' stipulation that the only issue before the trial court concerned the company's failure to consider the named plaintiffs' applications for line driver jobs was discounted as no more than "an attempt to eliminate some confusion in the exposition of evidence at trial." Ibid.Accordingly, the Court of Appeals concluded, upon the trial record, that the company had discriminated against Negroes and Mexican-Americans in hiring line drivers, that the company's no-transfer rule and seniority system perpetuated the past discrimination and were not justified by business necessity, that the company's requirement of three years of immediately prior line-haul experience was an illegal employment qualification, and that the unions had violated Title VII and 42 U.S.C. § 1981 by"their role in establishing separate seniority rosters that failed to make allowance for minority city drivers who had been discriminatorily relegated to city driver jobs."505 F.2d at 61. The Court of Appeals did not disturb the trial court's finding that none of the named plaintiffs was qualified to be a line driver; rather, it held only that that finding had been "premature," because each plaintiff, as a member of the class, would be entitled to have his application considered on the merits when future line driver vacancies arose. [Footnote 7] Page 431 U. S. 403IIIt is our conclusion that, on the record before it, the Court of Appeals plainly erred in declaring a class action and in imposing upon the petitioners classwide liability. In arriving at this conclusion, we do not reach the question whether a court of appeals should ever certify a class in the first instance. For it is inescapably clear that the Court of Appeals, in any event, erred in certifying a class in this case for the simple reason that it was evident by the time the case reached that court that the named plaintiffs were not proper class representatives under Fed.Rule Civ.Proc. 23(a). [Footnote 8]In short, the trial court proceedings made clear that Rodriguez, Perez, and Herrera were not members of the class of discriminatees they purported to represent. As this Court has repeatedly held, a class representative must be part of the class and "possess the same interest and suffer the same injury" as the class members. Schlesinger v. Reservists Committee to Stop the War, 418 U. S. 208, 418 U. S. 216. See, e.g., Kremens v. Bartley, ante at 431 U. S. 131 n. 12; Sosna v. Iowa, 419 U. S. 393, 419 U. S. 403; Rosario v. Rockefeller, 410 U. S. 752, 410 U. S. 759 n. 9; Hall v. Beals, 396 U. S. 45, 396 U. S. 49; Bailey v. Patterson, 369 U. S. 31, 369 U. S. 32-33. The District Court found upon abundant evidence that these plaintiffs lacked the qualifications to be hired as line drivers. [Footnote 9] Thus, they could have suffered no injury as a Page 431 U. S. 404 result of the alleged discriminatory practices, and they were, therefore, simply not eligible to represent a class of persons who did allegedly suffer injury. Furthermore, each named plaintiff stipulated that he had not been discriminated against with respect to his initial hire. In the light of that stipulation, they were hardly in a position to mount a classwide attack on the no-transfer rule and seniority system on the ground that these practices perpetuated past discrimination and locked minorities into the less desirable jobs to which they had been discriminatorily assigned.Apart from the named plaintiffs' evident lack of class membership, the record before the Court of Appeals disclosed at least two other strong indications that they would not Page 431 U. S. 405 "fairly and adequately protect the interests of the class." [Footnote 10] One was their failure to move for class certification prior to trial. Even assuming, as a number of courts have held, that a district judge has an obligation on his own motion to determine whether an action shall proceed as a class action, see, e.g., Senter v. General Motors Corp., 532 F.2d 511, 520-521 (CA6); Garrett v. City of Hamtramck, 503 F.2d 1236, 1243 (CA6); Castro v. Beecher, 459 F.2d 725, 731 (CA1), the named plaintiffs' failure to protect the interests of class members by moving for certification surely bears strongly on the adequacy of the representation that those class members might expect to receive. See, e.g., Nance v. Union Carbide Corp., 540 F.2d 718, 722-725 (CA4), cert. pending, Nos. 76-828, 76-834; Danner v. Phillips Petroleum Co., 447 F.2d 159, 164 (CA5); Beasley v. Kroehler Mfg. Co., 406 F. Supp. 926, 931 (ND Tex.); Walker v. Columbia University, 62 F.R.D. 63, 64 (SDNY); Glodgett v. Betit, 368 F. Supp. 211, 214 (Vt.); Herbst v. Able, 45 F.R.D. 451, 453 (SDNY). Another factor, apparent on the record, suggesting that the named plaintiffs were not appropriate class representatives was the conflict between the vote by members of the class rejecting a merger of the city and line driver collective bargaining units, [Footnote 11] and the demand in the plaintiffs' complaint for just such a merger. See, e.g., Hansberry v. Lee, 311 U. S. 32, 311 U. S. 44-45We are not unaware that suits alleging racial or ethnic discrimination are often, by their very nature, class suits, involving class-wide wrongs. Common questions of law or fact are typically present. But careful attention to the requirements of Fed.Rule Civ.Proc. 23 remains nonetheless indispensable. The mere fact that a complaint alleges racial or ethnic discrimination does not, in itself, ensure that the party who has brought the lawsuit will be an adequate representative Page 431 U. S. 406 of those who may have been the real victims of that discrimination.For the reasons we have discussed, the District Court did not err in denying individual relief or in dismissing the class allegations of the respondents' complaint. [Footnote 12] The judgment of the Court of Appeals is, accordingly, vacated, and the cases are remanded to that court for further proceedings consistent with this opinion. [Footnote 13]It is so ordered

U.S. Supreme CourtEast Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395 (1977)East Texas Motor Freight System, Inc. v. RodriguezNo. 75-718Argued January 10-11, 1977Decided May 31, 1977*431 U.S. 395SyllabusRespondents, Mexican-Americans, brought suit against petitioners, their unions and their employer, a common carrier that employs city and over-the-road ("line") drivers, claiming that their rejection for line driver jobs under the company's "no-transfer" policy in conjunction with the discriminatory effect of the seniority system applicable under collective bargaining agreements between the company and the unions was racially and ethnically discriminatory, and violated Title VII of the Civil Rights Act of 1964. Although respondents alleged that the case was a class action brought on behalf of the named plaintiffs and all Negroes and Mexican-Americans who had been denied equal employment opportunities with the company because of their race or national origin, they did not make a pretrial motion pursuant to Fed.Rule Civ.Proc. 23 to have the action certified as a class action, and the District Court made no such certification. Respondents had stipulated before trial that they had not been discriminated against when they were first hired, and that the only issue before the court was whether the company's failure to consider respondents' line driver applications violated Title VII, and their evidence and arguments at trial were confined to respondents' individual claims, with petitioners' defense showing that respondents were not qualified to be line drivers. The District Court following trial dismissed the class action allegations (stressing respondents' failure to move for class certification, their focus on individual claims, the lack of evidence, the stipulation, and the fact that a large majority of the union membership had recently rejected a proposal for the merger of Page 431 U. S. 396 city driver and line driver seniority lists with free transfer between jobs), and the individual claims (ruling that the challenged policies were neutrally applied, were proper business policies, and that respondents lacked line driver qualifications). The Court of Appeals reversed, discounting respondents' failure to move for certification ("a responsibility [that] falls to the court"), and the court itself certifying the class, after which it found classwide company and union liability on the basis of the proof adduced at trial. The trial court "lack of qualification" finding was not disturbed, the Court of Appeals ruling only that it was "premature" because each plaintiff as a member of the class would be entitled to have his application considered on the merits when future line driver vacancies arose.Held: The Court of Appeals plainly erred in certifying a class action and in imposing classwide liability on petitioners. Pp. 431 U. S. 403-406.(a) The trial court proceedings made clear that respondents were not members of the class of discriminatees that they purported to represent, since there was abundant evidence that they were unqualified to be line drivers, which, in addition to the stipulation of each named plaintiff that he had not been discriminated against with respect to his initial employment, made them ineligible to represent a class of persons who did allegedly suffer injury or to attack the no-transfer rule and seniority system on the ground that these practices perpetuated past discrimination and locked minorities into the less desirable jobs to which they had been discriminatorily assigned. Pp. 431 U. S. 403-404.(b) The named plaintiffs' failure to protect the interest of class members by moving for certification strongly implies the inadequacy of the representation class members might receive. P. 431 U. S. 405.(c) The union vote against merging city driver and line driver seniority lists was at odds with respondents' demand for such a merger. P. 431 U. S. 405.505 F.2d 40 (Nos. 75-718, 75-651, and 75-715); 505 F.2d 66 and 69 (Nos. 75-651 and 75-715), vacated and remanded.STEWART, J., delivered the opinion for a unanimous Court. Page 431 U. S. 397

1970_336

MR. JUSTICE STEWART delivered the opinion of the Court.The respondent, Joe O'Neil, was arrested along with a man named Runnels when the police of Culver City, California, answered a midnight call from a liquor store reporting that two men in a white Cadillac were suspiciously cruising about in the neighborhood. The police responded to the call, spotted the Cadillac, and followed it into an alley where a gun was thrown from one of its windows. They then stopped the car and apprehended the respondent and Runnels. Further investigation revealed that the car had been stolen about 10:30 that night in Los Angeles by two men who had forced its owner at gunpoint to drive them a distance of a few blocks and then had robbed him of $8 and driven off. The victim subsequently picked Runnels and the respondent from a lineup, positively identifying them as the men who had kidnaped and robbed him.Arraigned on charges of kidnaping, robbery, and vehicle theft, both the respondent and Runnels pleaded not Page 402 U. S. 624 guilty, and at their joint trial they offered an alibi defense. Each told the same story: they had spent the evening at the respondent's home until about 11 p.m., when they had left together. While waiting at a bus stop, they were picked up by a friend driving a white Cadillac, and he offered to lend them the car for a few hours while he went into a nightclub. They accepted the offer, and, once on their way, discovered that there was a gun in the glove compartment. They entered an alley in search of a place to dispose of the gun, since they were afraid of being stopped with it in the car. Soon after throwing the gun out of the window, they were stopped by the police and arrested. The supposed friend was not called as a witness, and was not shown to be unavailable, but other witnesses corroborated parts of their alibi testimony.The owner of the white Cadillac made a positive in-court identification of the defendants, and a police officer testified to the facts of the arrest. Another police officer testified that, after the arrest, Runnels had made an unsworn oral statement admitting the crimes and implicating the respondent as his confederate. The trial judge ruled the officer's testimony as to the substance of the alleged statement admissible against Runnels, but instructed the jury that it could not consider it against the respondent. When Runnels took the stand in his own defense, he was asked on direct examination whether he had made the statement, and he flatly denied having done so. He also vigorously asserted that the substance of the statement imputed to him was false. He was then intensively cross-examined by the prosecutor, but stuck to his story in every particular. The respondent's counsel did not cross-examine Runnels, although he was, of course, fully free to do so. The respondent took the stand on his own behalf and told a story identical to that of Runnels as to the activities of the two on the night Page 402 U. S. 625 in question. Both the prosecutor and Runnels' counsel discussed the alleged confession in their closing arguments to the jury, and the trial judge repeated his instruction that it could be considered only against Runnels.The jury found both defendants guilty as charged. After unsuccessful efforts to set aside the conviction in the California courts, the respondent applied for federal habeas corpus relief in the United States District Court for the Northern District of California, and, while the case was pending there, this Court decided Bruton v. United States, 391 U. S. 123, and Roberts v. Russell, 392 U. S. 293, holding that, under certain circumstances, the Confrontation Clause of the Sixth Amendment, [Footnote 1] applicable to the States through the Fourteenth, [Footnote 2] is violated when a codefendant's confession implicating the defendant is placed before the jury at their joint trial. [Footnote 3] The District Court ruled that the respondent's conviction had to be set aside under Bruton and Roberts, and the Court of Appeals for the Ninth Circuit affirmed. 422 F.2d 319 (1970). Petitioner then sought a writ of certiorari in this Court, contending, first, that there was no constitutional error under Bruton and Roberts, second, that any error there might have been was harmless beyond a reasonable doubt under the doctrine of Chapman v. California, 386 U. S. 18, and, third, that the District Court should have required the respondent first to seek redress in the state courts, which had had no opportunity to consider the Bruton claim. We granted certiorari to Page 402 U. S. 626 consider these issues. 400 U.S. 901. Since we agree with the petitioner that there was no violation of the Constitution in this case, it is unnecessary to consider the other questions presented.Runnels' out-of-court confession implicating the respondent was hearsay as to the latter, and therefore inadmissible against him under state evidence law. The trial judge so ruled, and instructed the jury that it must not consider any part of the statement in deciding whether or not the respondent was guilty. In Bruton, however, we held that, quite apart from the law of evidence, such a cautionary instruction to the jury is not an adequate protection for the defendant where the codefendant does not take the witness stand. We held that, where the jury hears the codefendant's confession implicating the defendant, the codefendant becomes, in substance, if not in form, a "witness" against the defendant. The defendant must constitutionally have an opportunity to "confront" such a witness. This the defendant cannot do if the codefendant refuses to take the stand.It was clear in Bruton that the "confrontation" guaranteed by the Sixth and Fourteenth Amendments is confrontation at trial -- that is, that the absence of the defendant at the time the codefendant allegedly made the out-of-court statement is immaterial so long as the declarant can be cross-examined on the witness stand at trial. This was confirmed in California v. Green, 399 U. S. 149, where we said that,"[v]iewed historically . . . , there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination."Id. at 399 U. S. 158. Moreover,"where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion Page 402 U. S. 627 that the admission of his out-of-court statements does not create a confrontation problem."Id. at 399 U. S. 162. This is true, of course, even though the declarant's out-of-court statement is hearsay as to the defendant, so that its admission against him, in the absence of a cautionary instruction, would be reversible error under state law. The Constitution as construed in Bruton, in other words, is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for "full and effective" cross-examination.The question presented by this case, then, is whether cross-examination can be full and effective where the declarant is present at the trial, takes the witness stand, testifies fully as to his activities during the period described in his alleged out-of-court statement, but denies that he made the statement and claims that its substance is false.In affirming the District Court, the Court of Appeals relied heavily on the dictum of this Court in Douglas v. Alabama, 380 U. S. 415, 380 U. S. 420, that "effective confrontation" of a witness who has allegedly made an out-of-court statement implicating the defendant "was possible only if [the witness] affirmed the statement as his." The Court in that case also remarked that the witness "could not be cross-examined on a statement imputed to but not admitted by him." Id. at 380 U. S. 419. Of course, a witness can be cross-examined concerning a statement not "affirmed" by him, but this dictum from Douglas was repeated in Bruton, supra, at 391 U. S. 127. In Douglas and Bruton (and in the other confrontation cases before Green) [Footnote 4] there was, in fact, no question of the effect of an affirmance or denial Page 402 U. S. 628 of the incriminating statement, since the witness or codefendant was in each case totally unavailable at the trial for any kind of cross-examination. The specific holding of the Court in Bruton was:"Plainly, the introduction of [the codefendant's] confession added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination, since [the codefendant] did not take the stand. Petitioner thus was denied his constitutional right of confrontation."391 U.S. at 391 U. S. 127-128. This Court has never gone beyond that holding.In California v. Green, supra, the defendant was accused of furnishing marihuana to a minor, partly on the basis of an unsworn statement, not subject to cross-examination, made by the minor himself while he was under arrest for selling the drug. When the minor, not a codefendant, took the stand at the defendant's trial, he claimed that he could not remember any of the incriminating events described in his out-of-court statement, although he admitted having made the statement and claimed that he believed it when he made it. The earlier statement was then introduced in evidence to show the truth of the matter asserted, and this Court held it admissible for that purpose. The circumstances of Green are inverted in this case. There, the witness affirmed the out-of-court statement but was unable to testify in court as to the underlying facts; here, the witness, Runnels, denied ever making an out-of-court statement but testified at length, and favorably to the defendant, concerning the underlying facts.Had Runnels in this case "affirmed the statement as his," the respondent would certainly have been in far worse straits than those in which he found himself when Page 402 U. S. 629 Runnels testified as he did. For then, counsel for the respondent could only have attempted to show through cross-examination that Runnels had confessed to a crime he had not committed, or, slightly more plausibly, that those parts of the confession implicating the respondent were fabricated. This would, moreover, have required an abandonment of the joint alibi defense and the production of a new explanation for the respondent's presence with Runnels in the white Cadillac at the time of their arrest. To be sure, Runnels might have "affirmed the statement" but denied its truthfulness, claiming, for example, that it had been coerced, or made as part of a plea bargain. But cross-examination by the respondent's counsel would have been futile in that event as well. For once Runnels had testified that the statement was false, it could hardly have profited the respondent for his counsel through cross-examination to try to shake that testimony. If the jury were to believe that the statement was false as to Runnels, it could hardly conclude that it was not false as to the respondent as well.The short of the matter is that, given a joint trial and a common defense, Runnels' testimony respecting his alleged out-of-court statement was more favorable to the respondent than any that cross-examination by counsel could possibly have produced had Runnels "affirmed the statement as his." It would be unrealistic in the extreme, in the circumstances here presented, to hold that the respondent was denied either the opportunity or the benefit of full and effective cross-examination of Runnels.We conclude that, where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights Page 402 U. S. 630 protected by the Sixth and Fourteenth Amendments. Accordingly, the judgment is reversed and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtNelson v. O'Neil, 402 U.S. 622 (1971)Nelson v. O'NeilNo. 336Argued March 24, 1971 -- Decided June 1, 1971402 U.S. 622SyllabusRespondent and one Runnels were charged with committing various crimes and, at their joint trial, offered an alibi defense. A police officer testified that Runnels had orally admitted the crimes and implicated respondent. Runnels, who took the stand, denied making the statement. The trial judge ruled that Runnels' alleged statement was inadmissible hearsay as to respondent, and could not be considered by the jury in deciding whether respondent was guilty. Respondent also took the stand on his own behalf and gave the same version of their activities as Runnels. Both defendants were found guilty, and, after unsuccessful efforts to have his conviction set aside, respondent applied for habeas corpus relief. The District Court ruled that respondent's conviction was improper under Bruton v. United States, 391 U. S. 123, and Roberts v. Russell, 392 U. S. 293, which held that the Confrontation Clause of the Sixth Amendment, as made applicable to the States by the Fourteenth, is violated where a codefendant's out-of-court hearsay statement is admitted into evidence without the declarant's being available at trial for "full and effective" cross-examination by the defendant, and that a cautionary instruction to the jury does not adequately protect the defendant where the codefendant does not testify. The Court of Appeals affirmed, stressing that effective confrontation of a witness who has allegedly made an out-of-court statement implicating the defendant was possible only if the witness affirmed the statement as his.Held: Where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and testifies in the defendant's favor, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments, and, in the circumstances of this case, respondent, who would have encountered greater difficulty had Runnels affirmed the statement as his, was denied neither the opportunity nor the benefit of fully and effectively cross-examining Runnels. Bruton, supra, distinguished. Pp. 402 U. S. 626-630.422 F.2d 319, reversed and remanded. Page 402 U. S. 623STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACK, HARLAN, WHITE, and BLACKMUN, JJ., joined. HARLAN, J., filed a concurring opinion, post, p. 402 U. S. 630. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 402 U. S. 632. MARSHALL, J., filed a dissenting opinion, post, p. 402 U. S. 635.

1987_87-505

JUSTICE O'CONNOR delivered the opinion of the Court.This case concerns the propriety of an injunction entered by the United States District Court for the Southern District of Texas. The injunction prohibited specified parties from litigating a certain matter in the Texas state courts. We must determine whether this injunction is permissible under the Anti-Injunction Act, 28 U.S.C. § 2283, which generally bars federal courts from granting injunctions to stay proceedings in state courts.IIn 1977, Leong Chong, a resident of the Republic of Singapore, was accidentally killed in that country while performing repair work on a ship owned by respondent Esso Tankers, Inc., a subsidiary of respondent Exxon Corporation. Petitioner Chick Kam Choo, also a resident of Singapore, is Chong's widow. * In 1978, she brought suit in the United States District Court for the Southern District of Texas, presenting claims under the Jones Act, 46 U.S.C. § 688, the Death on the High Seas Act (DOHSA), 46 U.S.C. § 761, the general maritime law of the United States, App. 4, and the Texas Wrongful Death Statute, Tex.Civ.Prac. & Rem.Code Ann. §§ 71.001-71.031 (1986).Respondents moved for summary judgment on the Jones Act and DOHSA claims, arguing that Chong was not a seaman, which rendered the Jones Act inapplicable, and that Chong had not died on the "high seas," but while the ship was in port, which rendered the DOHSA inapplicable. App. 9-10. Respondents also moved for summary judgment on the claim involving the general maritime law of the Page 486 U. S. 143 United States, arguing that, due to the lack of substantial contacts with the United States, the maritime law of Singapore, not that of the United States, governed. Id. at 10 (citing Lauritzen v. Larsen, 345 U. S. 571 (1953); Romero v. International Terminal Operating Co., 358 U. S. 354 (1959)). In addition to seeking summary judgment, respondents moved for dismissal under the doctrine of forum non conveniens, arguing that, under the criteria identified in Gulf Oil Corp. v Gilbert, 330 U. S. 501 (1947), the District Court was not a convenient forum.In 1980, the District Court, adopting the memorandum and recommendations of a magistrate, granted respondents' motion for summary judgment on the Jones Act and DOHSA claims. The court agreed with respondents that those statutes were inapplicable. App. 29-31, 34. With respect to the general maritime law claim, the District Court applied factors identified in Lauritzen and Hellenic Lines Ltd. v. Rhoditis, 398 U. S. 306 (1970), to the choice-of-law question and concluded that the "statutory and maritime law of the United States should not be applied." App. 32. This conclusion led the court to grant summary judgment on petitioner's general maritime law claim, as well as to consider whether dismissal of the rest of the case was warranted under the doctrine offorum non conveniens. After reviewing the various factors set out in Gilbert, the court concluded that dismissal was appropriate, and accordingly granted respondents' motion to dismiss on forum non conveniens grounds, provided respondents submit to the jurisdiction of the Singapore courts. The Court of Appeals for the Fifth Circuit affirmed. Chick Kam Choo v. Exxon Corp., 699 F.2d 693, cert. denied, 464 U.S. 826 (1983).Rather than commence litigation in Singapore, however, petitioner filed suit in the Texas state courts. Although the state complaint initially included all the claims in the federal complaint, as well as a claim based on Singapore law, petitioner later voluntarily dismissed the federal claims. This Page 486 U. S. 144 left only the Texas state law claim and the Singapore law claim. See Brief for Petitioners 4, n. 4. Respondents briefly succeeded in removing the case to the District Court on the basis of diversity of citizenship, but the Court of Appeals for the Fifth Circuit ultimately held that complete diversity did not exist, and the case was returned to the District Court with instructions to remand it to state court. 764 F.2d 1148 (1985).Respondents then initiated a new action in federal court requesting an injunction to prevent petitioner and her attorneys, Benton Musslewhite and Joseph C. Blanks, "from seeking to relitigate in any state forum the issues finally decided" in the federal court's 1980 dismissal. App. 93. Petitioner moved to dismiss, arguing that the Anti-Injunction Act, 28 U.S.C. § 2283, prohibited the issuance of such an injunction. App. 96-98. Respondents, in turn, moved for summary judgment and a final injunction. Id. at 104-108. The District Court granted respondents' motion and permanently enjoined petitioner and her attorneys"from prosecuting or commencing any causes of action or claims against [respondents] in the courts of the State of Texas or any other state . . . arising out of or related to the alleged wrongful death of Leong Chong."Id. at 119.Petitioner appealed, reiterating her contention that the injunction violated the Anti-Injunction Act. A divided panel of the Court of Appeals for the Fifth Circuit rejected this argument. The panel majority concluded that the injunction here fell within the "relitigation" exception to the Act, which permits a federal court to issue an injunction "to protect or effectuate its judgments." The majority reasoned that an injunction was necessary to prevent relitigation of the forum non conveniens issue because petitioner pointed to no additional factor that made the "Texas court in Houston a more convenient forum for this litigation than a United States District Court in Houston." 817 F.2d 307, 312 (1987). The majority acknowledged that, due to an "open courts" provision in Page 486 U. S. 145 the Texas Constitution, Art. I, § 13, which is reflected in the Texas Wrongful Death Statute, Tex.Civ.Prac. & Rem.Code Ann. § 71.031 (1986), the state courts may not apply the same, or indeed, any forum non conveniens analysis to petitioner's case. Rather, as the Court of Appeals noted, it is possible that"Texas has constituted itself the world's forum of final resort, where suit for personal injury or death may always be filed if nowhere else."817 F.2d at 314 (footnote omitted). In this maritime context, however, the Court of Appeals majority concluded that the so-called "reverse-Erie" uniformity doctrine, see, e.g., Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 477 U. S. 222-223 (1986), required that federal forum non conveniens determinations preempt state law. Because the Court of Appeals found any independent state forum non conveniens inquiry to be preempted, it held that the injunction was permissible. Chief Judge Clark wrote separately, but joined this conclusion. 817 F.2d at 325. Judge Reavley dissented, maintaining that the Texas courts should be allowed to apply their own open courts forum non conveniens standard. The dissent also criticized the majority's "bold new rule of preemption" which had the effect of "nullify[ing] the Texas open forum law for admiralty cases." Ibid.The Court of Appeals' ruling conflicted with a decision of the Court of Appeals for the Ninth Circuit, Zipfel v. Halliburton Co., 832 F.2d 1477 (1988), cert. pending sub nom. Crowley Maritime Corp. v. Zipfel, No. 87-1122, which held that the Anti-Injunction Act precluded an injunction in similar circumstances. We granted certiorari to resolve the conflict, 484 U.S. 952 (1987), and now reverse and remand.IIThe Anti-Injunction Act generally prohibits the federal courts from interfering with proceedings in the state courts:"A court of the United States may not grant an injunction to stay proceedings in a State Court except as expressly Page 486 U. S. 146 authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."28 U.S.C. § 2283.The Act, which has existed in some form since 1793, see Act of Mar. 2, 1793, ch. 22, § 5, 1 Stat. 335, is a necessary concomitant of the Framers' decision to authorize, and Congress' decision to implement, a dual system of federal and state courts. It represents Congress' considered judgment as to how to balance the tensions inherent in such a system. Prevention of frequent federal court intervention is important to make the dual system work effectively. By generally barring such intervention, the Act forestalls"the inevitable friction between the state and federal courts that ensues from the injunction of state judicial proceedings by a federal court."Vendo Co. v. Lektro-Vend Corp., 433 U. S. 623, 433 U. S. 630-631 (1977) (plurality opinion). Due in no small part to the fundamental constitutional independence of the States, Congress adopted a general policy under which state proceedings"should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately this Court."Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281, 398 U. S. 287 (1970).Congress, however, has permitted injunctions in certain specific circumstances, namely when expressly authorized by statute, necessary in aid of the court's jurisdiction, or necessary to protect or effectuate the court's judgment. These exceptions are designed to ensure the effectiveness and supremacy of federal law. But as the Court has recognized, the exceptions are narrow, and are "not [to] be enlarged by loose statutory construction." Ibid. See also Clothing Workers v. Richman Brothers Co., 348 U. S. 511, 348 U. S. 514 (1955). Because an injunction staying state proceedings is proper only if it falls within one of the statutory exceptions, Atlantic Coast Line, supra, at 398 U. S. 286-287, and because the last of the three exceptions is the only one even arguably applicable Page 486 U. S. 147 here, the central question in this case is whether the District Court's injunction was necessary "to protect or effectuate" the District Court's 1980 judgment dismissing petitioner's lawsuit from federal court.The relitigation exception was designed to permit a federal court to prevent state litigation of an issue that previously was presented to and decided by the federal court. It is founded in the well recognized concepts of res judicata and collateral estoppel. The proper scope of the exception is perhaps best illustrated by this Court's decision in Atlantic Coast Line, supra.That case arose out of a union's decision to picket a railroad. The railroad immediately sought an injunction from a Federal District Court to prevent the picketing. The court refused to enjoin the union, issuing an order in 1967 that concluded, in part, that the unions were "free to engage in self-help." Id. at 398 U. S. 289. The railroad then went to state court, where an injunction was granted. Two years later, this Court held that the Railway Labor Act, 45 U.S.C. § 151 et seq., prohibited state court injunctions such as the one the railroad had obtained. Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369 (1969). This decision prompted the union to move in state court to dissolve the injunction, but the state court declined to do so. Rather than appeal, however, the union returned to federal court and obtained an injunction against the enforcement of the state court injunction. The District Court read its 1967 order as deciding not just that federal law did not authorize an injunction, but that federal law preempted the State from interfering with the union's right of self-help by issuing an injunction. Accordingly, the court concluded that an injunction was necessary to protect that judgment.The Court of Appeals affirmed, but this Court reversed, holding that the federal court injunction was improper even assuming that the state court's refusal to dissolve its injunction was erroneous. 398 U.S. at 398 U. S. 291, n. 5. After carefully Page 486 U. S. 148 reviewing the arguments actually presented to the District Court in the original 1967 litigation and the precise language of the District Court's order, we rejected the District Court's later conclusion that its 1967 order had addressed the propriety of an injunction issued by a state court:"Based solely on the state of the record when the [1967] order was entered, we are inclined to believe that the District Court did not determine whether federal law precluded an injunction based on state law. Not only was that point never argued to the court, but there is no language in the order that necessarily implies any decision on that question."Id. at 398 U. S. 290.Thus, as Atlantic Coast Line makes clear, an essential prerequisite for applying the relitigation exception is that the claims or issues which the federal injunction insulates from litigation in state proceedings actually have been decided by the federal court. Moreover, Atlantic Coast Line illustrates that this prerequisite is strict and narrow. The Court assessed the precise state of the record and what the earlier federal order actually said; it did not permit the District Court to render a post hoc judgment as to what the order was intended to say. With these principles in mind, we turn to the two claims petitioner seeks to litigate in the Texas state courts.First, petitioner asserts a claim under Singapore law. App. 40. The District Court did not resolve the merits of this claim in its 1980 order. Rather, the only issue decided by the District Court was that petitioner's claims should be dismissed under the federal forum non conveniens doctrine. Federal forum non conveniens principles simply cannot determine whether Texas courts, which operate under a broad "open courts" mandate, would consider themselves an appropriate forum for petitioner's lawsuit. See Tex.Const., Art. I, § 13; Tex.Civ.Prac. & Rem.Code Ann. § 71.031 (1986). Cf. Pennzoil Co. v. Texaco, Inc., 481 U. S. 1, 481 U. S. 11-12 (1987). Respondents' arguments to the District Court in 1980 reflected Page 486 U. S. 149 this distinction, citing federal cases almost exclusively and discussing only federal forum non conveniens principles. See App. 10-12, 17-26. Moreover, the Court of Appeals expressly recognized that the Texas courts would apply a significantly different forum non conveniens analysis. 817 F.2d at 314. Thus, whether the Texas state courts are an appropriate forum for petitioner's Singapore law claims has not yet been litigated, and an injunction to foreclose consideration of that issue is not within the relitigation exception.Respondents seek to avoid this problem by arguing that any separate state law determination is preempted under the "reverse-Erie" principle of federal maritime law. See generally Offshore Logistics, Inc. v. Tallentire, 477 U.S. at 477 U. S. 222-223; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 (1920); Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917). Under this view, which was shared by the Court of Appeals, the only permissible forum non conveniens determination in this maritime context is the one made by the District Court, and an injunction may properly issue to prevent the state courts from undertaking any different approach.The contention that an independent state forum non conveniens determination is preempted by federal maritime law, however, does little to help respondents unless that preemption question was itself actually litigated and decided by the District Court. Since respondents concede that it was not, Tr. of Oral Arg. 32, the relitigation exception cannot apply. As we have previously recognized,"a federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area preempted by federal law, even when the interference is unmistakably clear."Atlantic Coast Line, 398 U.S. at 398 U. S. 294. See also Clothing Workers v. Richman Brothers Cl., 348 U. S. 511 (1955). Rather, when a state proceeding presents a federal issue, even a preemption Page 486 U. S. 150 issue, the proper course is to seek resolution of that issue by the state court.This is the course respondents must follow with respect to the Singapore law claim. It may be that respondents' reading of the preemptive force of federal maritime forum non conveniens determinations is correct. This is a question we need not reach and on which we express no opinion. We simply hold that respondents must present their preemption argument to the Texas state courts, which are presumed competent to resolve federal issues. Cf. Pennzoil Co. v. Texaco, Inc., 481 U.S. at 481 U. S. 15-16; Clothing Workers, supra, at 348 U. S. 518. Accordingly, insofar as the District Court enjoined the state courts from considering petitioner's Page 486 U. S. 151 Singapore law claim, the injunction exceeded the restrictions of the Anti-Injunction Act.Finally, petitioner asserts a claim under Texas state law. In contrast to the Singapore law claim, the validity of this claim was adjudicated in the original federal action. Respondents argued to the District Court in 1980 that, under applicable choice-of-law principles, the law of Singapore must control petitioner's suit. See App. 10. The District Court expressly agreed, noting that only two of the eight relevant factors "point toward American law," and concluding that the "statutory and maritime law of the United States should not be applied." Id. at 32. Petitioner seeks to relitigate this issue in state court by arguing that "there are substantial and/or significant contacts" with the United States such that "the application of American and Texas law is mandated." Id. at 39. Because in its 1980 decision the District Court decided that Singapore law must control petitioner's lawsuit, a decision that necessarily precludes the application of Texas law, an injunction preventing relitigation of that issue in state court is within the scope of the relitigation exception to the Anti-Injunction Act. Accordingly, insofar as the District Court enjoined the state courts from considering petitioner's claim under the substantive law of Texas, the injunction was permissible.Because the injunction actually entered by the District Court, id. at 118-119, was broader than the limited injunction we find acceptable, we must reverse the judgment approving a broad injunction and remand for entry of a more narrowly tailored order. Of course, the fact that an injunction may issue under the Anti-Injunction Act does not mean that it must issue. On remand, the District Court should decide whether it is appropriate to enter an injunction.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 CourtChick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988)Chick Kam Choo v. Exxon Corp.No. 87-505Argued March 30, 1988Decided May 16, 1988486 U.S. 140SyllabusAfter Leong Chong, a Singapore resident, was accidentally killed in that country while performing repair work on a ship owned by one of the respondents, a subsidiary of the other respondent, his widow, petitioner Chick Kam Choo (hereafter petitioner), also a Singapore resident, brought suit in Federal District Court alleging various causes of action, including claims under the general federal maritime law and the Texas Wrongful Death Statute. In 1980, the court granted respondents summary judgment on the maritime law claim, concluding that applicable choice-of-law principles required that Singapore law, and not the maritime law of the United States, should apply. The court also dismissed the rest of the case on federalforum non conveniens grounds, provided that respondents submit to the Singapore courts' jurisdiction. Petitioner then filed suit in the Texas state courts under the Texas statutes and Singapore law, but the Federal District Court enjoined petitioner from prosecuting any claims relating to her husband's death in the state courts. The Court of Appeals affirmed, rejecting petitioner's contention that the injunction violated the Anti-Injunction Act (Act), which generally bars federal courts from enjoining state court proceedings. The court ruled that the injunction fell within the Act's "relitigation" exception, which permits a federal court to issue an injunction "to protect or effectuate its judgments."Held: Because the District Court's injunction barring the state court proceedings is broader than is necessary "to protect or effectuate" that court's 1980 judgment dismissing petitioner's lawsuit from federal court, this case must be remanded for the entry of a more narrowly tailored order. Pp. 486 U. S. 145-151.(a) An essential prerequisite for applying the Act's relitigation exception is that the claims or issues which the federal injunction insulates from state court litigation actually have been decided by the federal court. This prerequisite is strict and narrow, requiring an assessment of the precise state of the record and what the earlier federal order actually said; it does not permit a post hoc judgment as to what the order was intended to say. Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281. Page 486 U. S. 141(b) Thus, since the 1980 judgment did not resolve the merits of petitioner's Singapore law claim, the injunction exceeded the Act's restrictions insofar as it barred the state courts from considering that claim. The 1980 judgment simply resolved that petitioner's claims should be dismissed under the federal forum non conveniens doctrine, and did not determine whether the state courts are an appropriate forum for the Singapore law claim. The Texas courts would apply a significantly different forum non conveniens analysis than the federal courts, and might well consider themselves an appropriate forum, in light of an "open courts" provision in the State Constitution. The argument that an independent state forum non conveniens determination is preempted under the "reverse-Erie" principle of federal maritime law, see, e.g., Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 477 U. S. 222-223, cannot help respondents, since that preemption question was not actually litigated and decided by the District Court. When a state proceeding presents a federal issue, even a preemption issue, the proper course under the Act is to allow the state court to resolve the issue. Pp. 486 U. S. 148-150.(c) Since petitioner's state law claim was necessarily adjudicated in the original federal action by the District Court's choice-of-law ruling that Singapore law controls petitioner's suit, the injunction, insofar as it barred the state courts from considering the state law claim, is within the scope of the relitigation exception, and is permissible under the Act. Pp. 486 U. S. 150-151.(d) The fact that an injunction may issue under the Act does not mean that it must issue. On remand, the District Court should decide whether it is appropriate to enter an injunction. P. 486 U. S. 151.817 F.2d 307, reversed and remanded.O'CONNOR, J., delivered the opinion for a unanimous Court. WHITE, J., filed a concurring opinion. Page 486 U. S. 142

2001_00-853

Syllabusthe threshold inquiry at issue here: whether resort to a prison grievance process must precede resort to a court. There is no reason to believe that Congress meant to release the evidentiary distinctions drawn in Hudson and Farmer from their moorings and extend their application to § 1997e(a)'s otherwise invigorated exhaustion requirement. It is at least equally plausible that Congress inserted "prison conditions" into the exhaustion provision simply to make it clear that preincarceration claims fall outside § 1997e(a), for example, a § 1983 claim against the prisoner's arresting officer. Furthermore, the asserted distinction between excessive force claims and exhaustion-mandatory "frivolous" claims is untenable, for excessive force claims can be frivolous, and exhaustion serves purposes beyond weeding out frivolous allegations. Pp. 525-530.(c) Other infirmities inhere in the Second Circuit's disposition. See McCarthy, 500 U. S., at 143. In the prison environment, a specific incident may be symptomatic of a systemic problem, rather than aberrational. Id., at 143-144. Nussle urges that his case could be placed in the isolated episode category, but he might equally urge that his complaint describes a pattern or practice of harassment climaxing in the alleged beating. It seems unlikely that Congress, when it included in the PLRA a firm exhaustion requirement, meant to leave the need to exhaust to the pleader's option. Cf. Preiser, 411 U. S., at 489-490. Moreover, the appeals court's disposition augurs complexity; bifurcated proceedings would be normal thereunder when, for example, a prisoner sues both the corrections officer alleged to have used excessive force and the supervisor who allegedly failed adequately to monitor those in his charge. Finally, scant sense supports the single occurrence, prevailing circumstance dichotomy. For example, prison authorities' interest in receiving prompt notice of, and opportunity to take action against, guard brutality is no less compelling than their interest in receiving notice and an opportunity to stop other types of staff wrongdoing. See id., at 492. Pp. 530-531.224 F.3d 95, reversed and remanded.GINSBURG, J., delivered the opinion for a unanimous Court.Richard Blumenthal, Attorney General of Connecticut, argued the cause for petitioners. With him on the briefs were Gregory T. D'Auria, Robert B. Fiske III, Perry ZinnRowthorn, Steven R. Strom, and Mark F. Kohler, Assistant Attorneys General.519John R. Williams argued the cause for respondent. With him on the briefs was Norman A. Pattis.Irving R. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Clement, Barbara L. Herwig, and Peter R. Maier. *JUSTICE GINSBURG delivered the opinion of the Court. This case concerns the obligation of prisoners who claim denial of their federal rights while incarcerated to exhaust prison grievance procedures before seeking judicial relief. Plaintiff-respondent Ronald Nussle, an inmate in a Connecticut prison, brought directly to court, without filing an inmate grievance, a complaint charging that corrections officers singled him out for a severe beating, in violation of the Eighth Amendment's ban on "cruel and unusual punishments." Nussle bypassed the grievance procedure despite a provision of the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321-73, as amended, 42 U. S. C. § 1997e(a)*Briefs of amici curiae urging reversal were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, and Caitlin J. Halligan, First Deputy Solicitor General, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Bill Lockyer of California, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Steve Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Jeremiah W Nixon of Missouri, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, John Cornyn of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; and for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley.520(1994 ed., Supp. V), that directs: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."The Court of Appeals for the Second Circuit held that § 1997e(a) governs only conditions affecting prisoners generally, not single incidents, such as corrections officers' use of excessive force, actions that immediately affect only particular prisoners. Nussle defends the Second Circuit's judgment, but urges that the relevant distinction is between excessive force claims, which, he says, need not be pursued administratively, and all other claims, which, he recognizes, must proceed first through the prison grievance process. We reject both readings and hold, in line with the text and purpose of the PLRA, our precedent in point, and the weight of lower court authority, that § 1997e(a)'s exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences.IRespondent Ronald Nussle is an inmate at the Cheshire Correctional Institution in Connecticut. App. 38. According to his complaint, corrections officers at the prison subjected him to "a prolonged and sustained pattern of harassment and intimidation" from the time of his arrival there in May 1996. Id., at 39. Nussle alleged that he was singled out because he was "perceived" to be a friend of the Governor of Connecticut, with whom corrections officers were feuding over labor issues. Ibid.Concerning the episode in suit, Nussle asserted that, on or about June 15, 1996, several officers, including defendantpetitioner Porter, ordered Nussle to leave his cell, "placed him against a wall and struck him with their hands, kneed him in the back, [and] pulled his hair." Ibid. Nussle al-521leged that the attack was unprovoked and unjustified, and that the officers told him they would kill him if he reported the beating. Ibid.Then, as now, the Connecticut Department of Correction provided a grievance system for prisoners. See id., at 5-18. Under that system, grievances must be filed within 30 days of the "occurrence." Id., at 11. Rules governing the grievance process include provisions on confidentiality and against reprisals. Id., at 17-18.Without filing a grievance, on June 10, 1999, Nussle commenced an action in Federal District Court under 42 U. S. C. § 1983; he filed suit days before the three-year statute of limitations ran out on the § 1983 claim.1 Nussle charged, principally, that the corrections officers' assault violated his right to be free from cruel and unusual punishment under the Eighth Amendment, as made applicable to the States by the Fourteenth Amendment. App. 38. The District Court, relying on § 1997e(a), dismissed Nussle's complaint for failure to exhaust administrative remedies. Nussle v. Willette, 3:99CV1091(AHN) (D. Conn., Nov. 22, 1999), App. 43.Construing § 1997e(a) narrowly because it is an exception "to the general rule of non-exhaustion in § 1983 cases," the Court of Appeals for the Second Circuit reversed the District Court's judgment; the appeals court held that "exhaustion of administrative remedies is not required for [prisoner] claims of assault or excessive force brought under § 1983." Nussle v. Willette, 224 F.3d 95, 106 (2000). Section 1997e(a) requires administrative exhaustion of inmates' claims "with respect to prison conditions," but contains no definition of the words "prison conditions." The appeals court found1 The Second Circuit has held that § 1983 actions in Connecticut are governed by that State's three-year statute of limitations for tort actions. Williams v. Walsh, 558 F.2d 667, 670 (1977).522the term "scarcely free of ambiguity." Id., at 101.2 For purposes of the PLRA's exhaustion requirement, the court concluded, the term was most appropriately read to mean "'circumstances affecting everyone in the area,'" rather than" 'single or momentary matter[s],' such as beatings ... directed at particular individuals." Ibid. (quoting Booth v. Churner, 206 F.3d 289, 300-301 (CA3 2000) (Noonan, J., concurring and dissenting), aff'd on other grounds, 532 U. S. 731 (2001)).The Court of Appeals found support for its position in the PLRA's legislative history. Floor statements "overwhelmingly suggest[ed]" that Congress sought to curtail suits qualifying as "frivolous" because of their "subject matter," e. g., suits over "insufficient storage locker space," "a defective haircut," or "being served chunky peanut butter instead of the creamy variety." 224 F. 3d, at 105 (internal quotation marks omitted). Actions seeking relief from corrections officer brutality, the Second Circuit stressed, are not of that genre. Further, the Court of Appeals referred to pre-PLRA decisions in which this Court had "disaggregate[d] the broad category of Eighth Amendment claims so2 Another provision of the PLRA, 18 U. S. C. § 3626(g)(2) (1994 ed., Supp. V), the court observed, does define "prison conditions." Nussle v. Willette, 224 F.3d 95, 101 (CA2 2000). That provision, which concerns prospective relief, defines "prison conditions" to mean "the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison." The Second Circuit found the § 3626(g)(2) definition "no less ambiguous" than the bare text of § 1997e(a). Neither of the alternative § 3626(g)(2) formulations, the court said, would be used in "everyday" speech to describe "particular instances of assault or excessive force." Id., at 102. But see Booth v. Churner, 206 F.3d 289, 294-295 (CA3 2000), aff'd on other grounds, 532 U. S. 731 (2001) (reading § 3626(g)(2) to cover all prison conditions and corrections officer actions that "make [prisoners'] lives worse"). The Second Circuit ultimately concluded that it would be improper, in any event, automatically to import § 3626(g)(2)'s "definition of 'civil actions brought with respect to prison conditions' into 42 U. S. C. § 1997e(a)" because the two provisions had "distinct statutory purposes." 224 F. 3d, at 105.523as to distinguish [for proof of injury and mens rea purposes] between 'excessive force' claims, on the one hand, and 'conditions of confinement' claims, on the other." Id., at 106 (citing Hudson v. McMillian, 503 U. S. 1 (1992), and FarmerIn conflict with the Second Circuit, other Federal Courts of Appeals have determined that prisoners alleging assaults by prison guards must meet § 1997e(a)'s exhaustion requirement before commencing a civil rights action. See Smith v. Zachary, 255 F.3d 446 (CA7 2001); Higginbottom v. Carter, 223 F.3d 1259 (CAll 2000); Booth v. Churner, 206 F.3d 289 (CA3 2000); Freeman v. Francis, 196 F.3d 641 (CA6 1999). We granted certiorari to resolve the intercircuit conflict, 532 U. S. 1065 (2001), and now reverse the Second Circuit's judgment.IIOrdinarily, plaintiffs pursuing civil rights claims under 42 U. S. C. § 1983 need not exhaust administrative remedies before filing suit in court. See Patsy v. Board of Regents of Fla., 457 U. S. 496, 516 (1982). Prisoner suits alleging constitutional deprivations while incarcerated once fell within this general rule. See Wilwording v. Swenson, 404 U. S. 249, 251 (1971) (per curiam).In 1980, however, Congress introduced an exhaustion prescription for suits initiated by state prisoners. See Civil Rights of Institutionalized Persons Act, 94 Stat. 352, as amended, 42 U. S. C. § 1997e (1994 ed.). This measure authorized district courts to stay a state prisoner's § 1983 action "for a period of not to exceed 180 days" while the prisoner exhausted available "plain, speedy, and effective administrative remedies." § 1997e(a)(1). Exhaustion under the 1980 prescription was in large part discretionary; it could be ordered only if the State's prison grievance system met specified federal standards, and even then, only if, in the particular case, the court believed the requirement "appropriate and in the interests of justice." §§ 1997e(a) and (b). We de-524scribed this provision as a "limited exhaustion requirement" in McCarthy v. Madigan, 503 U. S. 140, 150-151 (1992), and thought it inapplicable to prisoner suits for damages when monetary relief was unavailable through the prison grievance system.In 1996, as part of the PLRA, Congress invigorated the exhaustion prescription. The revised exhaustion provision, titled "Suits by prisoners," states: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U. S. C. § 1997e(a) (1994 ed., Supp. V).The current exhaustion provision differs markedly from its predecessor. Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory. See Booth v. Churner, 532 U. S. 731, 739 (2001). All "available" remedies must now be exhausted; those remedies need not meet federal standards, nor must they be "plain, speedy, and effective." See ibid.; see also id., at 740, n. 5. Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit. See id., at 741. And unlike the previous provision, which encompassed only § 1983 suits, exhaustion is now required for all "action[s] ... brought with respect to prison conditions," whether under § 1983 or "any other Federal law." Compare 42 U. S. C. § 1997e (1994 ed.) with 42 U. S. C. § 1997e(a) (1994 ed., Supp. V). Thus federal prisoners suing under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting a § 1983 suit.Beyond doubt, Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this525purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. Booth, 532 U. S., at 737. In other instances, the internal review might "filter out some frivolous claims." Ibid. And for cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy. See ibid.; see also Madigan, 503 U. S., at 146.Congress described the cases covered by § 1997e(a)'s exhaustion requirement as "action[s] ... brought with respect to prison conditions." Nussle's case requires us to determine what the § 1997e(a) term "prison conditions" means, given Congress' failure to define the term in the text of the exhaustion provision.3 We are guided in this endeavor by the PLRA's text and context, and by our prior decisions relating to "[s]uits by prisoners," § 1997e.43 The parties dispute the meaning of a simultaneously enacted provision, § 3626(g)(2), which concerns prospective relief, and for that purpose, defines the expression "civil action with respect to prison conditions." See supra, at 522, n. 2 (noting, inter alia, divergent constructions of Second and Third Circuits). We rest our decision on the meaning of "prison conditions" in the context of § 1997e, and express no definitive opinion on the proper reading of § 3626(g)(2).4 In reaching its decision, the Second Circuit referred to its "obligation to construe statutory exceptions narrowly, in order to give full effect to the general rule of non-exhaustion in § 1983." 224 F. 3d, at 106 (citing City of Edmonds v. Oxford House, Inc., 514 U. S. 725,731-732 (1995), and Patsy v. Board of Regents of Fla., 457 U. S. 496, 508 (1982)). The Second Circuit did not then have available to it our subsequently rendered decision in Booth v. Churner, 532 U. S. 731 (2001). Booth held that § 1997e(a) mandates initial recourse to the prison grievance process even when a prisoner seeks only money damages, a remedy not available in that process. See id., at 741. In so ruling, we observed that "Congress ... may well have thought we were shortsighted" in failing adequately to526As to precedent, the pathmarking opinion is McCarthy v. Bronson, 500 U. S. 136 (1991), which construed 28 U. S. C. § 636(b)(1)(B) (1988 ed.), a Judicial Code provision authorizing district judges to refer to magistrate judges, inter alia, "prisoner petitions challenging conditions of confinement."5 The petitioning prisoner in McCarthy argued that § 636(b)(1)(B) allowed nonconsensual referrals "only when a prisoner challenges ongoing prison conditions." 500 U. S., at 138. The complaint in McCarthy targeted no "ongoing prison conditions"; it homed in on "an isolated incident" of excessive force. Ibid. For that reason, according to the McCarthy petitioner, nonconsensual referral of his case was impermissible. Id., at 138-139.We did not "quarrel with" the prisoner's assertion in McCarthy that "the most natural reading of the phrase 'challenging conditions of confinement,' when viewed in isolation, would not include suits seeking relief from isolated episodes of unconstitutional conduct." Id., at 139. We nonetheless concluded that the petitioner's argument failed upon reading the phrase "in its proper context." Ibid. We found no suggestion in § 636(b)(1)(B) that Congress meant to dividerecognize the utility of the administrative process to satisfy, reduce, or clarify prisoner grievances. Id., at 737. While the canon on which the Second Circuit relied may be dependable in other contexts, the PLRA establishes a different regime. For litigation within § 1997e(a)'s compass, Congress has replaced the "general rule of non-exhaustion" with a general rule of exhaustion.5 Title 28 U. S. C. § 636(b)(1)(B) provides in relevant part:"(b)(l) Notwithstanding any provision of law to the contrary-"a judge may ... designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, ... of applications for posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. "527prisoner petitions "into subcategories." Ibid. "On the contrary," we observed, "when the relevant section is read in its entirety, it suggests that Congress intended to authorize the nonconsensual reference of all prisoner petitions to a magistrate." Ibid. The Federal Magistrates Act, we noted, covers actions of two kinds: challenges to "conditions of confinement"; and "applications for habeas corpus relief." Id., at 140. Congress, we concluded, "intended to include in their entirety th[ose] two primary categories of suits brought by prisoners." Ibid."Just three years before [§ 636(b)(1)(B)] was drafted," we explained in McCarthy, "our opinion in Preiser v. Rodriguez, 411 U. S. 475 (1973), had described [the] two broad categories of prisoner petitions: (1) those challenging the fact or duration of confinement itself; and (2) those challenging the conditions of confinement." Ibid. Preiser v. Rodriguez, 411 U. S. 475 (1973), left no doubt, we further stated in McCarthy, that "the latter category unambiguously embraced the kind of single episode cases that petitioner's construction would exclude." 500 U. S., at 141. We found it telling that Congress, in composing the Magistrates Act, chose language "that so clearly parallel[ed] our Preiser opinion." Id., at 142. We considered it significant as well that the purpose of the Magistrates Act-to lighten the caseload of overworked district judges-would be thwarted by opening the door to satellite litigation over "the precise contours of [the] suggested exception for single episode cases." Id., at 143.As in McCarthy, we here read the term "prison conditions" not in isolation, but "in its proper context." Id., at 139. The PLRA exhaustion provision is captioned "Suits by prisoners," see § 1997e; this unqualified heading scarcely aids the argument that Congress meant to bisect the universe of prisoner suits. See ibid.; see also AlmendarezTorres v. United States, 523 U. S. 224, 234 (1998) ("[T]he title528of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute." (internal quotation marks omitted)).This Court generally "presume[s] that Congress expects its statutes to be read in conformity with thee] Court's precedents." United States v. Wells, 519 U. S. 482, 495 (1997). That presumption, and the PLRA's dominant concern to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court, see Booth, 532 U. S., at 737, persuade us that § 1997e(a)'s key words "prison conditions" are properly read through the lens of McCarthy and Preiser. Those decisions tug strongly away from classifying suits about prison guards' use of excessive force, one or many times, as anything other than actions "with respect to prison conditions."Nussle places principal reliance on Hudson v. McMillian, 503 U. S. 1 (1992), and Farmer v. Brennan, 511 U. S. 825, 835-836 (1994), and the Second Circuit found support for its position in those cases as well, 224 F. 3d, at 106. Hudson held that to sustain a claim of excessive force, a prisoner need not show significant injury. 503 U. S., at 9. In so ruling, the Court did indeed distinguish excessive force claims from "conditions of confinement" claims; to sustain a claim of the latter kind "significant injury" must be shown. Id., at 8-9. Hudson also observed that a "conditions of confinement" claim may succeed if a prisoner demonstrates that prison officials acted with "deliberate indifference," id., at 8 (citing Wilson v. Seiter, 501 U. S. 294, 298 (1991)), while a prisoner alleging excessive force must demonstrate that the defendant acted "maliciously and sadistically to cause harm," Hudson, 503 U. S., at 7. Farmer similarly distinguished the mental state that must be shown to prevail on an excessive force claim, i. e., "purposeful or knowing conduct," from the lesser mens rea requirement governing "conditions of confinement" claims, i. e., "deliberate indifference." 511 U. S., at 835-836. We do not question those decisions529and attendant distinctions in the context in which they were made. But the question presented here is of a different order.Hudson and Farmer trained solely and precisely on proof requirements: what injury must a plaintiff allege and show; what mental state must a plaintiff plead and prove. Proof requirements once a case is in court, however, do not touch or concern the threshold inquiry before us: whether resort to a prison grievance process must precede resort to a court. We have no reason to believe that Congress meant to release the evidentiary distinctions drawn in Hudson and Farmer from their moorings and extend their application to the otherwise invigorated exhaustion requirement of § 1997e(a). Such an extension would be highly anomalous given Congress' elimination of judicial discretion to dispense with exhaustion and its deletion of the former constraint that administrative remedies must be "plain, speedy, and effective" before exhaustion could be required. See supra, at 524; Booth, 532 U. S., at 739; cf. id., at 740-741 ("Congress's imposition of an obviously broader exhaustion requirement makes it highly implausible that it meant to give prisoners a strong inducement to skip the administrative process simply by limiting prayers for relief to money damages not offered through administrative grievance mechanisms.").Nussle contends that Congress added the words "prison conditions" to the text of § 1997e(a) specifically to exempt excessive force claims from the now mandatory exhaustion requirement; he sees that requirement as applicable mainly to " 'prison conditions' claims that may be frivolous as to subject matter," 224 F. 3d, at 106. See Brief for Respondent 2, 26-27. It is at least equally plausible, however, that Congress inserted "prison conditions" into the exhaustion provision simply to make it clear that preincarceration claims fall outside § 1997e(a), for example, a Title VII claim against the prisoner's preincarceration employer, or, for that matter, a § 1983 claim against his arresting officer.530Furthermore, the asserted distinction between excessive force claims that need not be exhausted, on the one hand, and exhaustion-mandatory "frivolous" claims on the other, see id., at 2, 26-27, is untenable, for "[e]xcessive force claims can be frivolous," Smith, 255 F. 3d, at 452 ("Inmates can allege they were subject to vicious nudges."), and exhaustion serves purposes beyond weeding out frivolous allegations, see supra, at 524-525.Other infirmities inhere in the Second Circuit's disposition.See McCarthy, 500 U. S., at 143 ("Petitioner's definition would generate additional work for the district courts because the distinction between cases challenging ongoing conditions and those challenging specific acts of alleged misconduct will often be difficult to identify."). As McCarthy emphasized, in the prison environment a specific incident may be symptomatic rather than aberrational. Id., at 143144. An unwarranted assault by a corrections officer may be reflective of a systemic problem traceable to poor hiring practices, inadequate training, or insufficient supervision. See Smith, 255 F. 3d, at 449. Nussle himself alleged in this very case not only the beating he suffered on June 15, 1996; he also alleged, extending before and after that date, "a prolonged and sustained pattern of harassment and intimidation by corrections officers." App. 39. Nussle urges that his case could be placed in the isolated episode category, but he might equally urge that his complaint describes a pattern or practice of harassment climaxing in the alleged beating. It seems unlikely that Congress, when it included in the PLRA a firm exhaustion requirement, meant to leave the need to exhaust to the pleader's option. Cf. Preiser, 411 U. S., at 489-490 ("It would wholly frustrate explicit congressional intent to hold that [prisoners] could evade this [exhaustion] requirement by the simple expedient of putting a different label on their pleadings.").Under Nussle's view and that of the Second Circuit, moreover, bifurcation would be normal when a prisoner sues both531a corrections officer alleged to have used excessive force and the supervisor who allegedly failed adequately to monitor those in his charge. Tr. of Oral Arg. 31. The officer alone could be taken directly to court; the charge against the supervisor would proceed first through the internal grievance process. Similarly split proceedings apparently would be in order, under the Second Circuit's decision, when the prisoner elects to pursue against the same officers both discrete instance and ongoing conduct charges.Finally, we emphasize a concern over and above the complexity augured by the Second Circuit's disposition: Scant sense supports the single occurrence, prevailing circumstance dichotomy. Why should a prisoner have immediate access to court when a guard assaults him on one occasion, but not when beatings are widespread or routine? See Smith, 255 F. 3d, at 450. Nussle's distinction between excessive force claims and all other prisoner suits, see supra, at 520, presents a similar anomaly. Do prison authorities have an interest in receiving prompt notice of, and opportunity to take action against, guard brutality that is somehow less compelling than their interest in receiving notice and an opportunity to stop other types of staff wrongdoing? See Preiser, 411 U. S., at 492 ("Since [the] internal problems of state prisons involve issues so peculiarly within state authority and expertise, the States have an important interest in not being bypassed in the correction of those problems.").66 Other provisions of § 1997e that refer to "prison conditions" would have less scope under the Second Circuit's construction of the term. Section 1997e(c)(1) provides for dismissal on the court's own initiative of "any action brought with respect to prison conditions" that is "frivolous [or] malicious." No specific incident complaint would be subject to that prescription under the view that such suits do not implicate "prison conditions." Further, § 1997e(f)(1) provides that pretrial proceedings in "any action brought with respect to prison conditions" may be held at the prison via telephone, video conference, or other telecommunications technology so that the prisoner need not be physically transferred to participate. Surely such arrangements would be appropriate in Nussle's case and532***For the reasons stated, we hold that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Cf. Wilson, 501 U. S., at 299, n.1. 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

OCTOBER TERM, 2001SyllabusPORTER ET AL. v. NUSSLECERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITNo. 00-853. Argued January 14, 2002-Decided February 26, 2002Without filing a grievance under applicable Connecticut Department of Correction procedures, plaintiff-respondent Nussle, a state prison inmate, commenced a federal-court action under 42 U. S. C. § 1983, charging that corrections officers, including defendant-petitioner Porter, had subjected him to a sustained pattern of harassment and intimidation and had singled him out for a severe beating in violation of the Eighth Amendment's ban on "cruel and unusual punishments." The District Court dismissed Nussle's suit, relying on a provision of the Prison Litigation Reform Act of 1995 (PLRA), 42 U. S. C. § 1997e(a), that directs:"No action shall be brought with respect to prison conditions under section 1983 ... , or any other Federal law, by a prisoner ... until such administrative remedies as are available are exhausted." The Second Circuit reversed, holding that exhaustion of administrative remedies is not required for a claim of the kind Nussle asserted. The appeals court concluded that § 1997e(a)'s "prison conditions" phrase covers only conditions affecting prisoners generally, not single incidents that immediately affect only particular prisoners, such as corrections officers' use of excessive force. In support of its position, the court cited legislative history suggesting that the PLRA curtails frivolous suits, not actions seeking relief from corrections officer brutality; the court also referred to prePLRA decisions in which this Court distinguished, for proof of injury and mens rea purposes, between excessive force claims and conditions of confinement claims.Held: The PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong. Cf. Wilson v. Seiter, 501 U. S. 294, 299, n. 1. Pp. 523-532.(a) The current exhaustion provision in § 1997e(a) differs markedly from its predecessor. Once within the district court's discretion, exhaustion in § 1997e(a) cases is now mandatory. See Booth v. Churner, 532 U. S. 731, 739. And unlike the previous provision, which encompassed only § 1983 suits, exhaustion is now required for all "action[s] ... brought with respect to prison conditions." Section 1997e(a), designed to reduce the quantity and improve the quality of prisoner suits, affords corrections officials an opportunity to address complaints internally517before allowing the initiation of a federal case. In some instances, corrective action taken in response to an inmate's grievance might improve prison administration and satisfy the inmate, thereby obviating the need for litigation. Id., at 737. In other instances, the internal review might filter out some frivolous claims. Ibid. And for cases ultimately brought to court, an administrative record clarifying the controversy's contours could facilitate adjudication. See, e. g., ibid. Pp. 523-525.(b) Determination of the meaning of § 1997e(a)'s "prison conditions" phrase is guided by the PLRA's text and context, and by this Court's prior decisions relating to "[sJuits by prisoners," as § 1997e is titled. The pathmarking opinion is McCarthy v. Bronson, 500 U. S. 136, in which the Court construed the Federal Magistrates Act's authorization to district judges to refer "prisoner petitions challenging conditions of confinement" to magistrate judges. This Court concluded in McCarthy that, read in its proper context, the phrase "challenging conditions of confinement" authorizes the nonconsensual reference of all prisoner petitions to a magistrate, id., at 139. The McCarthy Court emphasized that Preiser v. Rodriguez, 411 U. S. 475, had unambiguously placed cases involving single episodes of unconstitutional conduct within the broad category of prisoner petitions challenging conditions of confinement, 500 U. S., at 141; found it telling that Congress, in composing the Magistrates Act, chose language that so clearly paralleled the Preiser opinion, 500 U. S., at 142; and considered it significant that the latter Act's purpose-to lighten overworked district judges' caseload-would be thwarted by allowing satellite litigation over the precise contours of an exception for single episode cases, id., at 143. The general presumption that Congress expects its statutes to be read in conformity with this Court's precedents, United States v. Wells, 519 U. S. 482, 495, and the PLRA's dominant concern to promote administrative redress, filter out groundless claims, and foster better prepared litigation of claims aired in court, see Booth v. Churner, 532 U. S., at 737, persuade the Court that § 1997e(a)'s key words "prison conditions" are properly read through the lens of McCarthy and Preiser. Those decisions tug strongly away from classifying suits about prison guards' use of excessive force, one or many times, as anything other than actions "with respect to prison conditions." Nussle misplaces principal reliance on Hudson v. McMillian, 503 U. S. 1, 8-9, and Farmer v. Brennan, 511 U. S. 825, 835-836. Although those cases did distinguish excessive force claims from conditions of confinement claims, they did so in the context of proof requirements: what injury must a plaintiff allege and show; what mental state must a plaintiff plead and prove. Proof requirements, once a case is in court, however, do not touch or concern518Full Text of Opinion

1999_98-1682

or how serious the problem is. There is no proof as to how likely any child is to view a discernible explicit image, and no proof of the duration of the bleed or the quality of the pictures or sound. Under § 505, sanctionable signal bleed can include instances as fleeting as an image appearing on a screen for just a few seconds. The First Amendment requires a more careful assessment and characterization of an evil in order to justify a regulation as sweeping as this. The Government has failed to establish a pervasive, nationwide problem justifying its nationwide daytime speech ban. The Government also failed to prove § 504, with adequate notice, would be ineffective. There is no evidence that a well-promoted voluntary blocking provision would not be capable at least of informing parents about signal bleed (if they are not yet aware of it) and about their rights to have the bleed blocked (if they consider it a problem and have not yet controlled it themselves). A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act. The Government also argues society's independent interests will be unserved if parents fail to act on that information. Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech. The regulatory alternative of a publicized § 504, which has the real possibility of promoting more open disclosure and the choice of an effective blocking system, would provide parents the information needed to engage in active supervision. The Government has not shown that this alternative would be insufficient to secure its objective, or that any overriding harm justifies its intervention. Although, under a voluntary blocking regime, even with adequate notice, some children will be exposed to signal bleed, children will also be exposed under time channeling, which does not eliminate signal bleed around the clock. The record is silent as to the comparative effectiveness of the two alternatives. Pp. 816-826.30 F. Supp. 2d 702, affirmed.KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., post, p. 828, and THOMAS, J., post, p. 829, filed concurring opinions. SCALIA, J., filed a dissenting opinion, post, p. 831. BREYER, J., filed a dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and SCALIA, JJ., joined, post, p.835.James A. Feldman argued the cause for appellants. With him on the briefs were Solicitor General Waxman, Acting806Assistant Attorney General Schultz, Deputy Solicitor General Kneedler, Jacob M. Lewis, Edward Himmelfarb, and Christopher J. Wright.Robert Corn-Revere argued the cause for appellees. With him on the brief were Jean S. Moore and Burton Joseph.*JUSTICE KENNEDY delivered the opinion of the Court. This case presents a challenge to § 505 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 136,47 U. S. C. § 561 (1994 ed., Supp. III). Section 505 requires cable television operators who provide channels "primarily dedicated to sexually-oriented programming" either to "fully scramble or otherwise fully block" those channels or to limit their transmission to hours when children are unlikely to be viewing, set by administrative regulation as the time between 10 p.m. and 6 a.m. 47 U. S. C. § 561(a) (1994 ed., Supp. III); 47 CFR § 76.227 (1999). Even before enactment of the statute, signal scrambling was already in use. Cable operators used scrambling in the regular course of business, so that only paying customers had access to certain programs. Scrambling could be imprecise, however; and either or both audio and visual portions of the scrambled programs might be heard or seen, a phenomenon known as "signal bleed." The purpose of § 505 is to shield children from hearing or seeing images resulting from signal bleed.To comply with the statute, the majority of cable operators adopted the second, or "time channeling," approach. The effect of the widespread adoption of time channeling was to*Janet M. LaRue, Paul J. McGeady, and Bruce Taylor filed a brief for the Family Research Council et al. as amici curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the American Booksellers Foundation for Free Expression et al. by Michael A. Bamberger; for the Media Institute by Laurence H. Winer; for the National Cable Television Association by Daniel L. Brenner and Michael S. Schooler; for Sexuality Scholars, Researchers, Educators, and Therapists by Marjorie Heins and Joan E. Bertin; and for the Thomas Jefferson Center for the Protection of Free Expression by J. Joshua Wheeler.807eliminate altogether the transmission of the targeted programming outside the safe harbor period in affected cable service areas. In other words, for two-thirds of the day no household in those service areas could receive the programming, whether or not the household or the viewer wanted to do so.Appellee Playboy Entertainment Group, Inc., challenged the statute as unnecessarily restrictive content-based legislation violative of the First Amendment. After a trial, a three-judge District Court concluded that a regime in which viewers could order signal blocking on a household-byhousehold basis presented an effective, less restrictive alternative to § 505. 30 F. Supp. 2d 702, 719 (Del. 1998). Finding no error in this conclusion, we affirm.IPlayboy Entertainment Group owns and prepares programs for adult television networks, including Playboy Television and Spice. Playboy transmits its programming to cable television operators, who retransmit it to their subscribers, either through monthly subscriptions to premium channels or on a so-called "pay-per-view" basis. Cable operators transmit Playboy's signal, like other premium channel signals, in scrambled form. The operators then provide paying subscribers with an "addressable converter," a box placed on the home television set. The converter permits the viewer to see and hear the descrambled signal. It is conceded that almost all of Playboy's programming consists of sexually explicit material as defined by the statute.The statute was enacted because not all scrambling technology is perfect. Analog cable television systems may use either "RF" or "baseband" scrambling systems, which may not prevent signal bleed, so discernible pictures may appear from time to time on the scrambled screen. Furthermore, the listener might hear the audio portion of the program.808These imperfections are not inevitable. The problem is that at present it appears not to be economical to convert simpler RF or baseband scrambling systems to alternative scrambling technologies on a systemwide scale. Digital technology may one day provide another solution, as it presents no bleed problem at all. Indeed, digital systems are projected to become the technology of choice, which would eliminate the signal bleed problem. Digital technology is not yet in widespread use, however. With imperfect scrambling, viewers who have not paid to receive Playboy's channels may happen across discernible images of a sexually explicit nature. How many viewers, how discernible the scene or sound, and how often this may occur are at issue in this case.Section 505 was enacted to address the signal bleed phenomenon. As noted, the statute and its implementing regulations require cable operators either to scramble a sexually explicit channel in full or to limit the channel's programming to the hours between 10 p.m. and 6 a.m. 47 U. S. C. § 561 (1994 ed., Supp. III); 47 CFR § 76.227 (1999). Section 505 was added by floor amendment, without significant debate, to the Telecommunications Act of 1996 (Act), a major legislative effort designed "to reduce regulation and encourage 'the rapid deployment of new telecommunications technologies.'" Reno v. American Civil Liberties Union, 521 U. S. 844, 857 (1997) (quoting 110 Stat. 56). "The Act includes seven Titles, six of which are the product of extensive committee hearings and the subject of discussion in Reports prepared by Committees of the Senate and the House of Representatives." Reno, supra, at 858. Section 505 is found in Title V of the Act, which is itself known as the Communications Decency Act of 1996 (CDA). 110 Stat. 133. Section 505 was to become effective on March 9, 1996, 30 days after the Act was signed by the President. Note following 47 U. S. C. § 561 (1994 ed., Supp. III).809On March 7, 1996, Playboy obtained a temporary restraining order (TRO) enjoining the enforcement of § 505. 918 F. Supp. 813 (Del.), and brought this suit in a three-judge District Court pursuant to § 561 of the Act, 110 Stat. 142, note following 47 U. S. C. § 223 (1994 ed., Supp. III). Playboy sought a declaration that § 505 violates the Constitution and an injunction prohibiting the law's enforcement. The District Court denied Playboy a preliminary injunction, 945 F. Supp. 772 (Del. 1996), and we summarily affirmed, 520 U. S. 1141 (1997). The TRO was lifted, and the Federal Communications Commission announced it would begin enforcing § 505 on May 18, 1997. In re Implementation of Section 505 of the Telecommunications Act of 1996, 12 FCC Rcd. 5212, 5214 (1997).When the statute became operative, most cable operators had "no practical choice but to curtail [the targeted] programming during the [regulated] sixteen hours or risk the penalties imposed ... if any audio or video signal bleed occur[red] during [those] times." 30 F. Supp. 2d, at 711. The majority of operators-"in one survey, 69%" -complied with § 505 by time channeling the targeted programmers. Ibid. Since "30 to 50% of all adult programming is viewed by households prior to 10 p.m.," the result was a significant restriction of communication, with a corresponding reduction in Playboy's revenues. Ibid.In March 1998, the District Court held a full trial and concluded that § 505 violates the First Amendment. Id., at 702. The District Court observed that § 505 imposed a contentbased restriction on speech. Id., at 714-715. It agreed that the interests the statute advanced were compelling but concluded the Government might further those interests in less restrictive ways. Id., at 717-720. One plausible, less restrictive alternative could be found in another section of the Act: § 504, which requires a cable operator, "[u]pon request by a cable service subscriber ... without charge, [to] fully810scramble or otherwise fully block" any channel the subscriber does not wish to receive. 110 Stat. 136, 47 U. S. C. § 560 (1994 ed., Supp. III). As long as subscribers knew about this opportunity, the court reasoned, § 504 would provide as much protection against unwanted programming as would § 505. 30 F. Supp. 2d, at 718-720. At the same time, § 504 was content neutral and would be less restrictive of Playboy's First Amendment rights. Ibid.The court described what "adequate notice" would in-clude, suggesting"[operators] should communicate to their subscribers the information that certain channels broadcast sexuallyoriented programming; that signal bleed ... may appear; that children may view signal bleed without their parents' knowledge or permission; that channel blocking devices ... are available free of charge ... ; and that a request for a free device ... can be made by a telephone call to the [operator]." Id., at 719.The means of providing this notice could include"inserts in monthly billing statements, barker channels (preview channels of programming coming up on PayPer-View), and on-air advertisement on channels other than the one broadcasting the sexually explicit programming." Ibid.The court added that this notice could be "conveyed on a regular basis, at reasonable intervals," and could include notice of changes in channel alignments. Ibid.The District Court concluded that § 504 so supplemented would be an effective, less restrictive alternative to § 505, and consequently declared § 505 unconstitutional and enjoined its enforcement. Id., at 719-720. The court also required Playboy to insist on these notice provisions in its contracts with cable operators. Ibid.The United States filed a direct appeal in this Court pursuant to § 561. The District Court thereafter dismissed for811lack of jurisdiction two post-trial motions filed by the Government. App. to Juris. Statement 91a-92a. We noted probable jurisdiction, 527 U. S. 1021 (1999), and now affirm.IITwo essential points should be understood concerning the speech at issue here. First, we shall assume that many adults themselves would find the material highly offensive; and when we consider the further circumstance that the material comes unwanted into homes where children might see or hear it against parental wishes or consent, there are legitimate reasons for regulating it. Second, all parties bring the case to us on the premise that Playboy's programming has First Amendment protection. As this case has been litigated, it is not alleged to be obscene; adults have a constitutional right to view it; the Government disclaims any interest in preventing children from seeing or hearing it with the consent of their parents; and Playboy has concomitant rights under the First Amendment to transmit it. These points are undisputed.The speech in question is defined by its content; and the statute which seeks to restrict it is content based. Section 505 applies only to channels primarily dedicated to "sexually explicit adult programming or other programming that is indecent." The statute is unconcerned with signal bleed from any other channels. See 945 F. Supp., at 785 ("[Section 505] does not apply when signal bleed occurs on other premium channel networks, like HBO or the Disney Channel"). The overriding justification for the regulation is concern for the effect of the subject matter on young viewers. Section 505 is not" 'justified without reference to the content of the regulated speech.'" Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) (quoting Clark v. Community for Creative Non- Violence, 468 U. S. 288, 293 (1984)). It "focuses only on the content of the speech and the direct impact that speech has on its listeners." Boos v. Barry, 485 U. S. 312,812321 (1988) (opinion of O'CONNOR, J.). This is the essence of content-based regulation.Not only does § 505 single out particular programming content for regulation, it also singles out particular programmers. The speech in question was not thought by Congress to be so harmful that all channels were subject to restriction. Instead, the statutory disability applies only to channels "primarily dedicated to sexually-oriented programming." 47 U. S. C. § 561(a) (1994 ed., Supp. III). One sponsor of the measure even identified appellee by name. See 141 Congo Rec. 15587 (1995) (statement of Sen. Feinstein) (noting the statute would apply to channels "such as the Playboy and Spice channels"). Laws designed or intended to suppress or restrict the expression of specific speakers contradict basic First Amendment principles. Section 505 limited Playboy's market as a penalty for its programming choice, though other channels capable of transmitting like material are altogether exempt.The effect of the federal statute on the protected speech is now apparent. It is evident that the only reasonable way for a substantial number of cable operators to comply with the letter of § 505 is to time channel, which silences the protected speech for two-thirds of the day in every home in a cable service area, regardless of the presence or likely presence of children or of the wishes of the viewers. According to the District Court, "30 to 50% of all adult programming is viewed by households prior to 10 p.m.," when the safe-harbor period begins. 30 F. Supp. 2d, at 711. To prohibit this much speech is a significant restriction of communication between speakers and willing adult listeners, communication which enjoys First Amendment protection. It is of no moment that the statute does not impose a complete prohibition. The distinction between laws burdening and laws banning speech is but a matter of degree. The Government's content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.813Since § 505 is a content-based speech restriction, it can stand only if it satisfies strict scrutiny. Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. Ibid. If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative. Reno, 521 U. S., at 874 ("[The CDA's Internet indecency provisions'] burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve"); Sable Communications, supra, at 126 ("The Government may ... regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest"). To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit.Our precedents teach these principles. Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists. We are expected to protect our own sensibilities "simply by averting [our] eyes." Cohen v. California, 403 U. S. 15,21 (1971); accord, Erznoznik v. Jacksonville, 422 U. S. 205, 210-211 (1975). Here, of course, we consider images transmitted to some homes where they are not wanted and where parents often are not present to give immediate guidance. Cable television, like broadcast media, presents unique problems, which inform our assessment of the interests at stake, and which may justify restrictions that would be unacceptable in other contexts. See Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 744 (1996) (plurality opinion); id., at 804-805 (KENNEDY, J., concurring in part, concurring in judgment in part, and dissenting in part); FCC v. Pacifica Foundation, 438814u. S. 726 (1978). No one suggests the Government must be indifferent to unwanted, indecent speech that comes into the home without parental consent. The speech here, all agree, is protected speech; and the question is what standard the Government must meet in order to restrict it. As we consider a content-based regulation, the answer should be clear:The standard is strict scrutiny. This case involves speech alone; and even where speech is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative.In Sable Communications, for instance, the feasibility of a technological approach to controlling minors' access to "dial-a-porn" messages required invalidation of a complete statutory ban on the medium. 492 U. S., at 130-131. And, while mentioned only in passing, the mere possibility that user-based Internet screening software would "'soon be widely available'" was relevant to our rejection of an overbroad restriction of indecent cyberspeech. Reno, supra, at 876-877. Compare Rowan v. Post Office Dept., 397 U. S. 728, 729-730 (1970) (upholding statute "whereby any householder may insulate himself from advertisements that offer for sale 'matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative'" (quoting then 39 U. S. C. § 4009(a) (1964 ed., Supp. IV))), with Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 75 (1983) (rejecting blanket ban on the mailing of unsolicited contraceptive advertisements). Compare also Ginsberg v. New York, 390 U. S. 629, 631 (1968) (upholding state statute barring the sale to minors of material defined as "obscene on the basis of its appeal to them"), with Butler v. Michigan, 352 U. S. 380, 381 (1957) (rejecting blanket ban of material "'tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth'" (quoting then Mich. Penal Code § 343)). Each of these cases arose in a different context-Sable Communica-815tions and Reno, for instance, also note the affirmative steps necessary to obtain access to indecent material via the media at issue-but they provide necessary instruction for complying with accepted First Amendment principles.Our zoning cases, on the other hand, are irrelevant to the question here. Post, at 838 (BREYER, J., dissenting) (citing Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986), and Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976)). We have made clear that the lesser scrutiny afforded regulations targeting the secondary effects of crime or declining property values has no application to content-based regulations targeting the primary effects of protected speech. Reno, supra, at 867-868; Boos, 485 U. S., at 320-321. The statute now before us burdens speech because of its content; it must receive strict scrutiny.There is, moreover, a key difference between cable television and the broadcasting media, which is the point on which this case turns: Cable systems have the capacity to block unwanted channels on a household-by-household basis. The option to block reduces the likelihood, so concerning to the Court in Pacifica, supra, at 744, that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners-listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt. Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests. This is not to say that the absence of an effective blocking mechanism will in all cases suffice to support a law restricting the speech in question; but if a less restrictive means is available for the Government to achieve its goals, the Government must use it.816IIIThe District Court concluded that a less restrictive alternative is available: § 504, with adequate publicity. 30 F. Supp. 2d, at 719-720. No one disputes that § 504, which requires cable operators to block undesired channels at individual households upon request, is narrowly tailored to the Government's goal of supporting parents who want those channels blocked. The question is whether § 504 can be effective.When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government's obligation to prove that the alternative will be ineffective to achieve its goals. The Government has not met that burden here. In support of its position, the Government cites empirical evidence showing that § 504, as promulgated and implemented before trial, generated few requests for household-by-household blocking. Between March 1996 and May 1997, while the Government was enjoined from enforcing § 505, § 504 remained in operation. A survey of cable operators determined that fewer than 0.5% of cable subscribers requested full blocking during that time. Id., at 712. The uncomfortable fact is that § 504 was the sole blocking regulation in effect for over a year; and the public greeted it with a collective yawn.The District Court was correct to direct its attention to the import of this tepid response. Placing the burden of proof upon the Government, the District Court examined whether § 504 was capable of serving as an effective, less restrictive means of reaching the Government's goals. Id., at 715, 718-719. It concluded that § 504, if publicized in an adequate manner, could be. Id., at 719-720.The District Court employed the proper approach. When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions. Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173, 183 (1999) ("[T]he Government bears817the burden of identifying a substantial interest and justifying the challenged restriction"); Reno, 521 U. S., at 879 ("The breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective ... "); Edenfield v. Fane, 507 U. S. 761, 770-771 (1993) ("[A] governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree"); Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989) ("[T]he State bears the burden of justifying its restrictions ... "); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 509 (1969) ("In order for the State ... to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint"). When the Government seeks to restrict speech based on its content, the usual presumption of constitutionality afforded congressional enactments is reversed. "Content-based regulations are presumptively invalid," R. A. v: v. St. Paul, 505 U. S. 377, 382 (1992), and the Government bears the burden to rebut that presumption.This is for good reason. "[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn." Speiser v. Randall, 357 U. S. 513, 525 (1958). Error in marking that line exacts an extraordinary cost. It is through speech that our convictions and beliefs are influenced, expressed, and tested. It is through speech that we bring those beliefs to bear on Government and on society. It is through speech that our personalities are formed and expressed. The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control.818When a student first encounters our free speech jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.It is rare that a regulation restricting speech because of its content will ever be permissible. Indeed, were we to give the Government the benefit of the doubt when it attempted to restrict speech, we would risk leaving regulations in place that sought to shape our unique personalities or to silence dissenting ideas. When First Amendment compliance is the point to be proved, the risk of nonpersuasionoperative in all trials-must rest with the Government, not with the citizen. Id., at 526.With this burden in mind, the District Court explored three explanations for the lack of individual blocking requests. 30 F. Supp. 2d, at 719. First, individual blocking might not be an effective alternative, due to technological or other limitations. Second, although an adequately advertised blocking provision might have been effective, § 504 as written did not require sufficient notice to make it so. Third, the actual signal bleed problem might be far less of a concern than the Government at first had supposed. Ibid.819To sustain its statute, the Government was required to show that the first was the right answer. According to the District Court, however, the first and third possibilities were "equally consistent" with the record before it. Ibid. As for the second, the record was "not clear" as to whether enough notice had been issued to give § 504 a fighting chance. Ibid. The case, then, was at best a draw. Unless the District Court's findings are clearly erroneous, the tie goes to free expression.The District Court began with the problem of signal bleed itself, concluding "the Government has not convinced us that [signal bleed] is a pervasive problem." Id., at 708-709, 718. The District Court's thorough discussion exposes a central weakness in the Government's proof: There is little hard evidence of how widespread or how serious the problem of signal bleed is. Indeed, there is no proof as to how likely any child is to view a discernible explicit image, and no proof of the duration of the bleed or the quality of the pictures or sound. To say that millions of children are subject to a risk of viewing signal bleed is one thing; to avoid articulating the true nature and extent of the risk is quite another. Under § 505, sanctionable signal bleed can include instances as fleeting as an image appearing on a screen for just a few seconds. The First Amendment requires a more careful assessment and characterization of an evil in order to justify a regulation as sweeping as this. Although the parties have taken the additional step of lodging with the Court an assortment of videotapes, some of which show quite explicit bleeding and some of which show television static or snow, there is no attempt at explanation or context; there is no discussion, for instance, of the extent to which any particular tape is representative of what appears on screens nationwide.The Government relied at trial on anecdotal evidence to support its regulation, which the District Court summarized as follows:820"The Government presented evidence of two city councillors, eighteen individuals, one United States Senator, and the officials of one city who complained either to their [cable operator], to their local Congressman, or to the FCC about viewing signal bleed on television. In each instance, the local [cable operator] offered to, or did in fact, rectify the situation for free (with the exception of 1 individual), with varying degrees of rapidity. Included in the complaints was the additional concern that other parents might not be aware that their children are exposed to this problem. In addition, the Government presented evidence of a child exposed to signal bleed at a friend's house. Cindy Omlin set the lockout feature on her remote control to prevent her child from tuning to adult channels, but her eleven year old son was nevertheless exposed to signal bleed when he attended a slumber party at a friend's house."The Government has presented evidence of only a handful of isolated incidents over the 16 years since 1982 when Playboy started broadcasting. The Government has not presented any survey-type evidence on the magnitude of the 'problem.'" Id., at 709 (footnote and record citations omitted).Spurred by the District Court's express request for more specific evidence of the problem, see 945 F. Supp., at 779, n. 16, the Government also presented an expert's spreadsheet estimate that 39 million homes with 29.5 million children had the potential to be exposed to signal bleed, 30 F. Supp. 2d, at 708-709. The Government made no attempt to confirm the accuracy of its estimate through surveys or other field tests, however. Accordingly, the District Court discounted the figures and made this finding: "[T]he Government presented no evidence on the number of households actually exposed to signal bleed and thus has not quantified the actual extent of the problem of signal bleed." Id., at821709. The finding is not clearly erroneous; indeed it is all but required.Once § 505 went into effect, of course, a significant percentage of cable operators felt it necessary to time channel their sexually explicit programmers. Id., at 711, and n. 14. This is an indication that scrambling technology is not yet perfected. That is not to say, however, that scrambling is completely ineffective. Different cable systems use different scrambling systems, which vary in their dependability. "The severity of the problem varies from time to time and place to place, depending on the weather, the quality of the equipment, its installation, and maintenance." Id., at 708. At even the good end of the spectrum a system might bleed to an extent sufficient to trigger the time-channeling requirement for a cautious cable operator. (The statute requires the signal to be "fully block[ed]." 47 U. s. C. § 561(a) (1994 ed., Supp. III) (emphasis added).) A rational cable operator, faced with the possibility of sanctions for intermittent bleeding, could well choose to time channel even if the bleeding is too momentary to pose any concern to most households. To affirm that the Government failed to prove the existence of a problem, while at the same time observing that the statute imposes a severe burden on speech, is consistent with the analysis our cases require. Here, there is no probative evidence in the record which differentiates among the extent of bleed at individual households and no evidence which otherwise quantifies the signal bleed problem.In addition, market-based solutions such as programmable televisions, VCR's, and mapping systems (which display a blue screen when tuned to a scrambled signal) may eliminate signal bleed at the consumer end of the cable. 30 F. Supp. 2d, at 708. Playboy made the point at trial that the Government's estimate failed to account for these factors. Id., at 708-709. Without some sort of field survey, it is impossible to know how widespread the problem in fact is, and the only indicator in the record is a handful of complaints. Cf.822Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 187 (1997) (reviewing" 'a record of tens of thousands of pages' of evidence" developed through "three years of pre-enactment hearings, ... as well as additional expert submissions, sworn declarations and testimony, and industry documents" in support of complex must-carry provisions). If the number of children transfixed by even flickering pornographic television images in fact reached into the millions we, like the District Court, would have expected to be directed to more than a handful of complaints.No support for the restriction can be found in the near barren legislative record relevant to this provision. Section 505 was added to the Act by floor amendment, accompanied by only brief statements, and without committee hearing or debate. See 141 Congo Rec. 15586-15589 (1995). One of the measure's sponsors did indicate she considered time channeling to be superior to voluntary blocking, which "put[s] the burden of action on the subscriber, not the cable company." Id., at 15587 (statement of Sen. Feinstein). This sole conclusory statement, however, tells little about the relative efficacy of voluntary blocking versus time channeling, other than offering the unhelpful, self-evident generality that voluntary measures require voluntary action. The Court has declined to rely on similar evidence before. See Sable Communications, 492 U. S., at 129-130 ("[A]side from conclusory statements during the debates by proponents of the bill, ... the congressional record presented to us contains no evidence as to how effective or ineffective the ... regulations were or might prove to be" (footnote omitted)); Reno, 521 U. S., at 858, and n. 24, 875-876, n. 41 (same). This is not to suggest that a 10,000-page record must be compiled in every case or that the Government must delay in acting to address a real problem; but the Government must present more than anecdote and supposition. The question is whether an actual problem has been proved in this case. We agree that823the Government has failed to establish a pervasive, nationwide problem justifying its nationwide daytime speech ban.Nor did the District Court err in its second conclusion.The Government also failed to prove § 504 with adequate notice would be an ineffective alternative to § 505. Once again, the District Court invited the Government to produce its proof. See 945 F. Supp., at 781 ("If the § 504 blocking option is not being promoted, it cannot become a meaningful alternative to the provisions of § 505. At the time of the permanent injunction hearing, further evidence of the actual and predicted impact and efficacy of § 504 would be helpful to us"). Once again, the Government fell short. See 30 F. Supp. 2d, at 719 ("[The Government's argument that § 504 is ineffective] is premised on adequate notice to subscribers. It is not clear, however, from the record that notices of the provisions of § 504 have been adequate"). There is no evidence that a well-promoted voluntary blocking provision would not be capable at least of informing parents about signal bleed (if they are not yet aware of it) and about their rights to have the bleed blocked (if they consider it a problem and have not yet controlled it themselves).The Government finds at least two problems with the conclusion of the three-judge District Court. First, the Government takes issue with the District Court's reliance, without proof, on a "hypothetical, enhanced version of Section 504." Brief for Appellants 32. It was not the District Court's obligation, however, to predict the extent to which an improved notice scheme would improve § 504. It was for the Government, presented with a plausible, less restrictive alternative, to prove the alternative to be ineffective, and § 505 to be the least restrictive available means. Indeed, to the extent the District Court erred, it was only in attempting to implement the less restrictive alternative through judicial decree by requiring Playboy to provide for expanded notice in its cable service contracts. The appropriate remedy was not to repair the statute, it was to enjoin the speech restric-824tion. Given the existence of a less restrictive means, if the Legislature wished to improve its statute, perhaps in the process giving careful consideration to other alternatives, it then could do so.The Government also contends a publicized § 504 will be just as restrictive as § 505, on the theory that the cost of installing blocking devices will outstrip the revenues from distributing Playboy's programming and lead to its cancellation. See 30 F. Supp. 2d, at 713. This conclusion rests on the assumption that a sufficient percentage of households, informed of the potential for signal bleed, would consider it enough of a problem to order blocking devices-an assumption for which there is no support in the record. Id., at 719. It should be noted, furthermore, that Playboy is willing to incur the costs of an effective § 504. One might infer that Playboy believes an advertised § 504 will be ineffective for its object, or one might infer the company believes the signal bleed problem is not widespread. In the absence of proof, it is not for the Court to assume the former.It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act. If unresponsive operators are a concern, moreover, a notice statute could give cable operators ample incentive, through fines or other penalties for noncompliance, to respond to blocking requests in prompt and efficient fashion.Having adduced no evidence in the District Court showing that an adequately advertised § 504 would not be effective to aid desirous parents in keeping signal bleed out of their own households, the Government can now cite nothing in the record to support the point. The Government instead takes quite a different approach. After only an offhand suggestion that the success of a well-communicated § 504 is "highly825unlikely," the Government sets the point aside, arguing instead that society's independent interests will be unserved if parents fail to act on that information. Brief for Appellants 32-33 ("[U]nder ... an enhanced version of Section 504, parents who had strong feelings about the matter could see to it that their children did not view signal bleed-at least in their own homes"); id., at 33 ("Even an enhanced version of Section 504 would succeed in blocking signal bleed only if, and after, parents affirmatively decided to avail themselves of the means offered them to do so. There would certainly be parents-perhaps a large number of parents-who out of inertia, indifference, or distraction, simply would take no action to block signal bleed, even if fully informed of the problem and even if offered a relatively easy solution"); Reply Brief for Appellants 12 ("[Society's] interest would of course be served in instances ... in which parents request blocking under an enhanced Section 504. But in cases in which parents fail to make use of an enhanced Section 504 procedure out of distraction, inertia, or indifference, Section 505 would be the only means to protect society's independent interest").Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech. The Government's argument stems from the idea that parents do not know their children are viewing the material on a scale or frequency to cause concern, or if so, that parents do not want to take affirmative steps to block it and their decisions are to be superseded. The assumptions have not been established; and in any event the assumptions apply only in a regime where the option of blocking has not been explained. The whole point of a publicized § 504 would be to advise parents that indecent material may be shown and to afford them an opportunity to block it at all times, even when they are not at home and even after 10 p.m. Time channeling does not offer this assistance. The regulatory alternative of a publi-826cized § 504, which has the real possibility of promoting more open disclosure and the choice of an effective blocking system, would provide parents the information needed to engage in active supervision. The Government has not shown that this alternative, a regime of added communication and support, would be insufficient to secure its objective, or that any overriding harm justifies its intervention.There can be little doubt, of course, that under a voluntary blocking regime, even with adequate notice, some children will be exposed to signal bleed; and we need not discount the possibility that a graphic image could have a negative impact on a young child. It must be remembered, however, that children will be exposed to signal bleed under time channeling as well. Time channeling, unlike blocking, does not eliminate signal bleed around the clock. Just as adolescents may be unsupervised outside of their own households, it is hardly unknown for them to be unsupervised in front of the television set after 10 p.m. The record is silent as to the comparative effectiveness of the two alternatives.***Basic speech principles are at stake in this case. When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or latitude is not accorded to the Government merely because the law can somehow be described as a burden rather than outright suppression. We cannot be influenced, moreover, by the perception that the regulation in question is not a major one because the speech is not very important. The history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly. It follows that all content-based restrictions on speech must give us more than a moment's pause. If television broadcasts can expose children to the real risk of harmful exposure to indecent materials, even in their own home and without parental consent, there is a problem the827Government can address. It must do so, however, in a way consistent with First Amendment principles. Here the Government has not met the burden the First Amendment imposes.The Government has failed to show that § 505 is the least restrictive means for addressing a real problem; and the District Court did not err in holding the statute violative of the First Amendment. In light of our ruling, it is unnecessary to address the second question presented: whether the District Court was divested of jurisdiction to consider the Government's post judgment motions after the Government filed a notice of appeal in this Court. The judgment of the District Court is affirmed.It is so ordered

OCTOBER TERM, 1999SyllabusUNITED STATES ET AL. v. PLAYBOY ENTERTAINMENT GROUP, INC.APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARENo. 98-1682. Argued November 30, 1999-Decided May 22, 2000Section 505 of the Telecommunications Act of 1996 requires cable television operators providing channels "primarily dedicated to sexuallyoriented programming" either to "fully scramble or otherwise fully block" those channels or to limit their transmission to hours when children are unlikely to be viewing, set by administrative regulation as between 10 p.m. and 6 a.m. Even before § 505's enactment, cable operators used signal scrambling to limit access to certain programs to paying customers. Scrambling could be imprecise, however; and either or both audio and visual portions of the scrambled programs might be heard or seen, a phenomenon known as "signal bleed." The purpose of § 505 is to shield children from hearing or seeing images resulting from signal bleed. To comply with § 505, the majority of cable operators adopted the "time channeling" approach, so that, for two-thirds of the day, no viewers in their service areas could receive the programming in question. Appellee Playboy Entertainment Group, Inc., filed this suit challenging § 505's constitutionality. A three-judge District Court concluded that § 505's content-based restriction on speech violates the First Amendment because the Government might further its interests in less restrictive ways. One plausible, less restrictive alternative could be found in § 504 of the Act, which requires a cable operator, "[u]pon request by a cable service subscriber ... without charge, [to] fully scramble or otherwise fully block" any channel the subscriber does not wish to receive. As long as subscribers knew about this opportunity, the court reasoned, § 504 would provide as much protection against unwanted programming as would § 505.Held: Because the Government failed to prove § 505 is the least restrictive means for addressing a real problem, the District Court did not err in holding the statute violative of the First Amendment. Pp.811-827.(a) Two points should be understood: (1) Many adults would find the material at issue highly offensive, and considering that the material comes unwanted into homes where children might see or hear it against parental wishes or consent, there are legitimate reasons for regulating it; and (2) Playboy's programming has First Amendment protection.804SyllabusSection 505 is a content-based regulation. It also singles out particular programmers for regulation. It is of no moment that the statute does not impose a complete prohibition. Since § 505 is content based, it can stand only if it satisfies strict scrutiny. E. g., Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126. It must be narrowly tailored to promote a compelling Government interest, and if a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative. Cable television, like broadcast media, presents unique problems, but even where speech is indecent and enters the home, the objective of shielding children does not suffice to support a blanket ban if the protection can be obtained by a less restrictive alternative. There is, moreover, a key difference between cable television and the broadcasting media: Cable systems have the capacity to block unwanted channels on a household-by-household basis. Targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests. Pp. 811-815.(b) No one disputes that § 504 is narrowly tailored to the Government's goal of supporting parents who want sexually explicit channels blocked. The question here is whether § 504 can be effective. Despite empirical evidence that § 504 generated few requests for household-byhousehold blocking during a period when it was the sole federal blocking statute in effect, the District Court correctly concluded that § 504, if publicized in an adequate manner, could serve as an effective, less restrictive means of reaching the Government's goals. When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions. E. g., Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173, 183. Of three explanations for the lack of individual blocking requests under § 504-(1) individual blocking might not be an effective alternative, due to technologicalor other limitations; (2) although an adequately advertised blocking provision might have been effective, § 504 as written does not require sufficient notice to make it so; and (3) the actual signal bleed problem might be far less of a concern than the Government at first had supposed-the Government had to show that the first was the right answer. According to the District Court, however, the first and third possibilities were "equally consistent" with the record before it, and the record was not clear as to whether enough notice had been issued to give § 504 a fighting chance. Unless the District Court's findings are clearly erroneous, the tie goes to free expression. With regard to signal bleed itself, the District Court's thorough discussion exposes a central weakness in the Government's proof: There is little hard evidence of how widespread805Full Text of Opinion

1979_78-1088

MR JUSTICE REHNQUIST delivered the opinion of the Court.The Freedom of Information Act (FOIA) vests jurisdiction in federal district courts to enjoin an "agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B). We hold today that, even if a document requested under the FOIA is wrongfully in the possession of a party not an "agency," the agency which received the request does not "improperly withhold" those materials by its refusal to institute a retrieval action. When an agency has demonstrated that it has not "withheld" requested records in violation of the standards established by Congress, the federal courts have no authority to order the production of such records under the FOIA,IThis litigation arises out of FOIA requests seeking access to various transcriptions of petitioner Kissinger's telephone conversations. The questions presented by the petition necessitate a thorough review of the facts.AHenry Kissinger served in the Nixon and Ford administrations for eight years. He assumed the position of Assistant Page 445 U. S. 140 to the President for National Security Affairs in January, 1969. In September, 1973, Kissinger was appointed to the office of Secretary of State, but retained his National Security Affairs advisory position until November 3, 1975. After his resignation from the latter position, Kissinger continued to serve as Secretary of State until January 20, 1977. Throughout this period of Government service, Kissinger's secretaries generally monitored his telephone conversations and recorded their contents either by shorthand or on tape. The stenographic notes or tapes were used to prepare detailed summaries, and sometimes verbatim transcripts, of Kissinger's conversations. [Footnote 1] Since Kissinger's secretaries generally monitored all of his conversations, the summaries discussed official business as well as personal matters. The summaries and transcripts prepared from the electronic or stenographic recording of his telephone conversations throughout his entire tenure in Government service were stored in his office at the State Department in personal files.On October 29, 1976, while still Secretary of State, Kissinger arranged to move the telephone notes from his office in the State Department to the New York estate of Nelson Rockefeller. Before removing the notes, Kissinger did not consult the State Department's Foreign Affairs Document and Reference Center (FADRC), the center responsible for implementing the State Department's record maintenance and disposal program. Nor did he consult the National Archives and Records Service (NARS), a branch of the General Services Administration (GSA) which is responsible for records preservation throughout the Federal Government. Kissinger had obtained an opinion from the Legal Adviser of the Department of State, however, advising him that the telephone summaries were not agency records, but were his personal Page 445 U. S. 141 papers which he would be free to take when he left office. [Footnote 2] After Kissinger effected this physical transfer of the notes, he entered into two agreements with the Library of Congress deeding his private papers. In the first agreement, dated November 12, 1976, Kissinger deeded to the United States, in care of the Library of Congress, one collection of papers. Kissinger's telephone notes were not included in this collection. The agreement established terms obligating Kissinger to comply with certain restrictions on the inclusion of official documents in the collection and obligating the Library to respect restrictions on access. The agreement required that official materials in the collection would consist of "copies of government papers of which there is an original or record copy in government files." It also provided that all such materials must have been "approved for inclusion in the Collection" by "authorized officials."Public access to the collection, under the terms of the deed, will not begin until 25 years after the transfer or 5 years after Kissinger's death, whichever is later. Until that time, access is restricted to (1) employees of the Library of Congress who have been jointly approved by the Library of Congress and Mr. Kissinger; (2) persons who have received the written permission of Mr. Kissinger; and (3) after Kissinger's death, persons who have received the written permission of a committee to be named in his will. Kissinger and all of his research assistants who have appropriate security clearance retain unrestricted access to the collection.After this agreement was executed, the Department of State formulated procedures for the review of the documents and their transfer to the Library of Congress. Employees reviewed the collection and retained (a) original or record copies Page 445 U. S. 142 of documents belonging to the agency, and(b) any materials containing classified information. In the donation process, Kissinger was also required to sign the Department's Standard Separation Statement affirming that he had"surrendered to responsible officials . . . documents or material containing classified or administratively controlled information furnished . . . during the course of [Government] employment or developed as a consequence thereof, including any diaries, memorandums of conversations, or other documents of a personal nature. . . ."On December 24, 1976, by a second deed, Kissinger donated a second collection consisting of his telephone notes. This second agreement with the Library of Congress incorporated by reference all of the terms and conditions of the first agreement. It provided in addition, however, that public access to the transcripts would be permitted only with the consent, or upon the death, of the other parties to the telephone conversations in question.On December 28, 1976, the transcripts were transported directly to the Library from the Rockefeller estate. Thus, the transcripts were not reviewed by the Department of State Document and Reference Center with the first collection of donated papers before they were delivered into the possession of the Library of Congress. Several weeks after they were moved to the Library, however, one of Kissinger's personal aides did extract portions of the transcripts for inclusion in the files of the State Department and the National Security Council. Pursuant to the instructions of the State Department Legal Adviser, the aide included in the extracts, "any significant policy decisions or actions not otherwise reflected in the Department's records."BThree separate FOIA requests form the basis of this litigation. All three requests were filed while Kissinger was Secretary of State, but only one request was filed prior to the Page 445 U. S. 143 removal of the telephone notes from the premises of the State Department. This first request was filed by William Safire, a New York Times columnist, on January 14, 1976. Safire requested the Department of State to produce any transcripts of Kissinger's telephone conversations between January 21, 1969, and February 12, 1971, in which (1) Safire's name appeared or (2) Kissinger discussed the subject of information "leaks" with certain named White House officials. The Department denied Safire's FOIA request by letter of February 11, 1976. The Department letter reasoned that the requested notes had been made while Kissinger was National Security Adviser, and therefore were not agency records subject to FOIA disclosure. [Footnote 3]The second FOIA request was filed on December 28 and 29, 1976, by the Military Audit Project (MAP) after Kissinger publicly announced the gift of his telephone notes to the United States and their placement in the Library of Congress. The MAP request, filed with the Department of State, sought records of all Kissinger's conversations made while Secretary of State and National Security Adviser. On January 18, 1977, the Legal Adviser of the Department of State denied the request on two grounds. First, he found that the notes were not agency records. Second, the deposit of the notes with the Library of Congress prior to the request terminated the Department's custody and control. The denial was affirmed on administrative appeal.The third FOIA request was filed on January 13, 1977, by the Reporters Committee for Freedom of the Press (RCFP), the American Historical Association, the American Political Science Association, and a number of other journalists (collectively referred to as the RCFP requesters). This request also sought production of the telephone notes made by Kissinger both while he was National Security Adviser and Page 445 U. S. 144 Secretary of State. The request was denied for the same reasons given to the MAP requesters.The United States has taken some action to seek recovery of the notes for record processing. On January 4, 1977, the Government Archivist wrote to Kissinger, requesting that he be permitted to inspect the telephone notes so that he could determine whether they were Department records, and to determine whether Kissinger had authority to remove them from Department custody. The State Department Legal Adviser, however, analyzed the Archivist's request and issued a memorandum concluding that, so long as extracts of the official business contained in the notes were filed as agency records, Kissinger had complied with the Department's regulations. The Legal Adviser also concluded that the inspection procedures suggested by the Archivist would compromise the Department's policy of respecting the privacy of such secretarial notes and would discourage the creation of historical materials in the first instance. On January 18, 1977, Kissinger replied to the Archivist, declining to permit access.The Archivist renewed his request for an inspection on February 11, 1977, by which time Kissinger was no longer Secretary of State. With the request, he enclosed a memorandum of law prepared by the General Counsel of the GSA concluding that the materials in question might well be records, rather than personal files, and that the Archivist was entitled to inspect them under the Federal Records and Records Disposal Acts, 44 U.S.C. §§ 2901-2909, 3101-3107; 44 U.S.C. §§ 3301-3314 (1976 ed. and Supp. II). Kissinger did not respond to the Archivist's second request.CProceedings in the United States District Court for the District of Columbia commenced February 8, 1977. The RCFP requesters and Safire instituted an action under the FOIA, seeking enforcement of their FOIA requests. On March 8, 1977, MAP filed a similar suit. Both suits named Page 445 U. S. 145 Kissinger, the Library of Congress, the Secretary of State and the Department of State as defendants. The plaintiffs sought a judgment declaring that the summaries were agency records that had been unlawfully removed and were being improperly withheld. Plaintiffs requested as ultimate relief that the court require the Library to return the transcripts to the Department with directions to process them for disclosure under the FOIA.Cross-motions for summary judgment were filed by all plaintiffs and by Kissinger. The District Judge ruled in plaintiffs' favor as to transcripts produced while Kissinger was Secretary of State, but denied relief as to transcripts of conversations produced while Kissinger was Special Assistant to the President. The court first found that the transcripts of telephone conversations were "agency records" subject to disclosure under the FOIA. The court also found that Kissinger had wrongfully removed these records by not obtaining the prior approval of the Administrator of General Services. The court recognized that the FOIA did not directly provide for relief, since the records were in the custody of the Library of Congress, which is not an "agency" under the Act. Nevertheless, the court held that the FOIA permitted the court to invoke its equitable powers "to order the return of wrongfully removed agency documents where a statutory retrieval action appears unlikely."An order was entered requiring the Library to return the documents to the Department of State; requiring the Department of State to determine which of the summaries are exempt from disclosure under the FOIA, and to provide the required materials to the plaintiffs. The court denied the production of summaries made during Kissinger's tenure as National Security Adviser on the basis of a mistaken assumption that plaintiffs had withdrawn their request for these summaries.Both Kissinger and the private parties appealed from the lower court judgment. The Court of Appeals, without discussion, Page 445 U. S. 146 affirmed the trial court judgment ordering production of the summaries made while Kissinger was Secretary of State. The Court of Appeals also held that the summaries made during Kissinger's service as National Security Adviser need not be produced. The court found that this request had not been withdrawn, and reasoned that three considerations supported nonproduction: (1) the FOIA does not cover those Presidential advisers "who are so close to him as to be within the White House"; (2) the relocation of the transcripts to the State Department did not bring them within its disclosure responsibilities under the FOIA; and (3) the fact that portions of the transcripts may reflect the affairs of the NSC, an agency to which the FOIA does apply, provided no basis for disclosure in the absence of an FOIA request directed to that agency.Kissinger filed a petition for certiorari requesting this Court to review the Court of Appeals' determination that the State Department had improperly withheld agency records, thereby permitting their production from the Library of Congress. The RCFP requesters filed a cross-petition seeking review of that court's judgment denying production of the conversations transcribed while Kissinger served as National Security Adviser. We granted both petitions, 441 U.S. 904, and we now affirm in part and reverse in part.IIWe first address the issue presented by Kissinger -- whether the District Court possessed the authority to order the transfer of that portion of the deeded collection, including the transcripts of all conversations Kissinger made while Secretary of State, from the Library of Congress to the Department of State at the behest of the named plaintiffs. The lower courts premised this exercise of jurisdiction on their findings that the papers were "agency records" and that they had been wrongfully removed from State Department custody in violation Page 445 U. S. 147 of the Federal Records Disposal Act, 44 U.S.C. § 3303. We need not, and do not, decide whether the telephone notes are agency records, or were wrongfully removed, for even assuming an affirmative answer to each of these questions, the FOIA plaintiffs were not entitled to relief.The question must be, of course, whether Congress has conferred jurisdiction on the federal courts to impose this remedy. Two statutory schemes are relevant to this inquiry. First, if Congress contemplated a private right of action under the Federal Records Act and the Federal Records Disposal Act, this would, in itself, justify the remedy imposed if Kissinger in fact wrongfully removed the documents. In the alternative, the lower court order could be sustained if authorized by the FOIA.AThe Federal Records Act of 1950, 44 U.S.C. § 2901 et seq., authorizes the "head of each Federal agency" to establish a "records management program" and to define the extent to which documents are "appropriate for preservation" as agency records. The records management program requires that adequate documentation of agency policies and procedures be retained. The Records Disposal Act, a complementary records management Act, provides the exclusive means for record disposal. 44 U.S.C. § 3314.Under the Records Disposal Act, once a document achieves the status of a "record" as defined by the Act, it may not be alienated or disposed of without the consent of the Administrator of General Services, who has delegated his authority in such matters to the Archivist of the United States. 44 U.S.C. §§ 3303, 3303a, 3308-3314 (1976 ed. and Supp. II); GSA, Delegations of Authority Manual, ADM P. 5450.39A. Thus, if Kissinger's telephone notes were "records" within the meaning of the Federal Records Act, a question we do not reach, then Kissinger's transfer might well violate the Act, since he did not seek the approval of the Archivist prior to Page 445 U. S. 148 transferring custody to himself and then to the Library of Congress. We assume such a wrongful removal arguendo for the purposes of this opinion.But the Federal Records Act establishes only one remedy for the improper removal of a "record" from the agency. The head of the agency is required under 44 U.S.C. § 3106 to notify the Attorney General if he determines or "has reason to believe" that records have been improperly removed from the agency. The Administrator of General Services is obligated to assist in such actions. 44 U.S.C. § 2905. At the behest of these administrators, the Attorney General may bring suit to recover the records.The Archivist did request return of the telephone notes from Kissinger on the basis of his belief that the documents may have been wrongfully removed under the Act. Despite Kissinger's refusal to comply with the Archivist's request, no suit has been instituted against Kissinger to retrieve the records under 44 U.S.C. § 3106.Plaintiff requesters effectively seek to enforce these requirements of the Acts by seeking the return of the records to State Department custody. No provision of either Act, however, expressly confers a right of action on private parties. Nor do we believe that such a private right of action can be implied.This Court has spent too many pages identifying the factors relevant to uncovering congressional intent to imply a private cause of action to belabor the topic here. [Footnote 4] Our most recent pronouncement on the subject, Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11 (1979), readily disposes of the question. First, the language of the Records Acts merely "proscribes certain conduct," and does not "create or alter any civil liabilities." Id. at 444 U. S. 19. The Records Act also expressly provides administrative remedies for violations of the duties Page 445 U. S. 149 it imposes, implicating our conclusion in Transamerica Mortgage that it is"an elemental canon of statutory construction that, where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it."Ibid. Finally, the legislative history does not detract from the inference to be drawn from congressional silence, but rather confirms that such silence is purposeful.The legislative history of the Acts reveals that their purpose was not to benefit private parties, but solely to benefit the agencies themselves and the Federal Government as a whole. The Senate Report to the Federal Records Act of 1950 reveals this focus. S.Rep. No. 2140, 81st Cong., 2d Sess., 4 (1950). The Report states:"It is well to emphasize that records come into existence, or should do so, not in order to fill filing cabinets or occupy floor space, or even to satisfy the archival needs of this and future generations, but first of all to serve the administrative and executive purposes of the organization that creates them. There is danger of this simple, self-evident fact being lost for lack of emphasis. The measure of effective records management should be its usefulness to the executives who are responsible for accomplishing the substantive purposes of the organization. . . . [The] first interest is in the establishment of a useful system of documentation that will enable [the executive] to have the information he needs available when he needs it."Congress expressly recognized the need for devising adequate statutory safeguards against the unauthorized removal of agency records, and opted in favor of a system of administrative standards and enforcement. See U.S. Commission on Organization of the Executive Branch of the Government, Task Force Report on Records Management 27 (1949). Thus, regardless of whether Kissinger has violated the Records and Records Disposal Acts, Congress has not vested federal Page 445 U. S. 150 courts with jurisdiction to adjudicate that question upon suit by a private party. That responsibility is vested in the administrative authorities. [Footnote 5]BThe plaintiff requesters contend that, even though the Federal Records and Records Disposal Acts do not contemplate a private right of action, the FOIA nevertheless supplies what was missing from those Acts -- congressional intent to permit private actions to recover records wrongfully removed from Government custody. We are, however, unable to read the FOIA as supplying that congressional intent.The FOIA represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment. That statutory scheme authorizes federal courts to ensure private access to requested materials when three requirements have been met. Under 5 U.S.C. § 552(a)(4)(b), federal jurisdiction is dependent upon a showing that an agency has (1) "improperly"; (2) "withheld"; (3) "agency records." Judicial authority to devise remedies and enjoin agencies can only be invoked, under the jurisdictional grant conferred by § 552, if the agency has contravened all three components of this obligation. We find it unnecessary to decide whether the telephone notes were "agency records," since we conclude that a covered agency -- here the State Department -- has not "withheld" those documents from the plaintiffs. We also need not decide the full contours of a prohibited "withholding." We do decide, however, that Congress did not mean that an agency improperly withholds a document which has been removed from the possession of the agency prior to the filing of the FOIA request. In such a case, the agency has neither Page 445 U. S. 151 the custody nor control necessary to enable it to withhold. In looking for congressional intent, we quite naturally start with the usual meaning of the word "withhold" itself. The requesters would have us read the "hold" out of "withhold." The act described by this word presupposes the actor's possession or control of the item withheld. A refusal to resort to legal remedies to obtain possession is simply not conduct subsumed by the verb "withhold."The Act and its legislative history do not purport to define the word. An examination of the structure and purposes of the Act, however, indicates that Congress used the word in its usual sense. An agency's failure to sue a third party to obtain possession is not a withholding under the Act.Several sources suggest directly that agency possession or control is prerequisite to triggering any duties under the FOIA. In the debates, the Act was described as ensuring "access to the information possessed by [Government] servants." (Emphasis added.) 112 Cong.Rec. 13652 (1966), reprinted in Freedom of Information Act Source Book, S. Doc. No. 93-82, p. 69 (1974) (remarks of Rep. Monagan) (hereinafter Source Book I).Following FOIA's enactment in 1966, the Attorney General issued guidelines for the use of all federal departments and agencies in complying with the new statute. The guidelines state that FOIA"refers, of course, only to records in being and in the possession or control of an agency. . . . [It] imposes no obligation to compile or procure a record in response to a request."Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 23-24 (June 1967), Source Book I, pp. 222-223.Most courts which have considered the question have concluded that the FOIA is only directed at requiring agencies to disclose those "agency records" for which they have chosen Page 445 U. S. 152 to retain possession or control. [Footnote 6] See also NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 437 U. S. 221 (1978), describing the Act as reaching "records and material in the possession of federal agencies. . . ."The conclusion that possession or control is a prerequisite to FOIA disclosure duties is reinforced by an examination of the purposes of the Act. The Act does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it, in fact, has created and retained. [Footnote 7] It has been settled by decision of this Court that only the Federal Records Act, and not the FOIA, requires an agency to actually create records, even though the agency's failure to do so deprives the public of information which might have otherwise been available to it. NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 421 U. S. 161-162 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U. S. 168, 421 U. S. 192 (1975).If the agency is not required to create or to retain records under the FOIA, it is somewhat difficult to determine why the agency is nevertheless required to retrieve documents which have escaped its possession, but which it has not endeavored to recover. If the document is of so little interest to the agency that it does not believe the retrieval effort to be justified, the effect of this judgment on an FOIA request seems little different from the effect of an agency determination Page 445 U. S. 153 that a record should never be created, or should be discarded. [Footnote 8]The procedural provisions of the Act, in particular, reflect the nature of the obligation which Congress intended to impose on agencies in the production of agency records. First, Congress has provided that agencies normally must decide within 10 days whether to comply with an FOIA request unless they can establish "unusual circumstances" as defined in the Act. 5 U.S.C. §§ 552(a)(6)(A), (b). The "unusual circumstances" specified by the Act include"the need to search for and collect the requested records from field facilities and other establishments that are separate from the office processing the request."This exception for searching and collecting certainly does not suggest that Congress expected an agency to commence lawsuits in order to obtain possession of documents requested, particularly when it is seen that where an extension is allowable, the period of the extension is only for 10 days. Either Congress was operating under the assumption that lawsuits could be waged and won in 10 days or it was operating under the assumption that agencies would not be obligated to file lawsuits in order to comply with FOIA requests.A similarly strong expression of congressional expectations emerges in 5 U.S.C. § 552(a)(4)(A), providing for recovery of certain costs incurred in complying with FOIA requests. This section was included in the Act in order to reduce the burdens imposed on the agencies. The agency is authorized to establish fees for the "direct costs" of "document search and duplication." The costs allowed reflect the congressional judgment as to the nature of the costs which would be incurred. Congress identified these costs, and thus the agency burdens, as consisting of "search" and "duplication." During Page 445 U. S. 154 the enactment of the 1974 amendments to the FOIA, it was emphasized that agencies generally are not obligated to provide extensive services in fulfilling FOIA requests. S.Rep. No. 93-854, p. 12 (1974), reprinted in House Committee on Government Operations and Senate Committee on the Judiciary, Freedom of Information Act and Amendments of 1974: Source Book, 94th Cong., 1st Sess., 164 (Joint Comm.Print 1975) (hereinafter Source Book II). When agencies do provide additional services in conducting a search, they are clearly authorized to allocate that cost to the requester. Ibid. It is doubtful that Congress intended that a "search" include legal efforts to retrieve wrongfully removed documents, since such an intent would authorize agency assessment to the private requester of its litigation costs in such an endeavor.It is therefore clear that Congress never intended, when it enacted the FOIA, to displace the statutory scheme embodied in the Federal Records Act and the Federal Records Disposal Act providing for administrative remedies to safeguard against wrongful removal of agency records, as well as to retrieve wrongfully removed records. This result is buttressed by our decisions in Renegotiation Board v. Bannercraft Clothing Co., 415 U. S. 1 (1974), and NLRB v. Robbins Tire & Rubber Co., supra, both demonstrating reluctance to construe the FOIA as silently departing from prior longstanding practice. Bannercraft, supra, of course held that Congress intended federal district courts to retain traditional equitable jurisdiction in adjudicating FOIA actions. But historic equitable practice has long recognized that an individual does not improperly withhold a document sought pursuant to a subpoena by his refusal to sue a third party to obtain or recover possession. Amey v. Long, 9 East 473, 482, 103 Eng.Rep. 653, 657 (K.B. 1808).CThis construction of "withholding" readily disposes of the RCFP and MAP requests. Both of these requests were filed after Kissinger's telephone notes had been deeded to the Library Page 445 U. S. 155 of Congress. [Footnote 9] The Government, through the Archivist, has requested return of the documents from Kissinger. The request has been refused. The facts make it apparent that Kissinger, and the Library of Congress as his donee, are holding the documents under a claim of right. Under these circumstances, the State Department cannot be said to have had possession or control of the documents at the time the requests were received. It did not, therefore, withhold any agency records, an indispensable prerequisite to liability in a suit under the FOIA.IIIThe Safire request raises a separate question. At the time when Safire submitted his request for certain notes of Kissinger's telephone conversations, all the notes were still located in Kissinger's office at the State Department. For this reason, we do not rest our resolution of his claim on the grounds that there was no withholding by the State Department. As outlined above, the Act only prohibits the withholding of "agency records." We conclude that the Safire request sought disclosure of documents which were not "agency records" within the meaning of the FOIA.Safire's request sought only a limited category of documents. He requested the Department to produce all transcripts of telephone conversations made by Kissinger from his White House office between January 21, 1969, and February Page 445 U. S. 156 12, 1971, in which (1) Safire's name appeared; or (2) in which Kissinger discussed the subject of information "leaks" with General Alexander Haig, Attorney General John Mitchell, President Richard Nixon, J. Edgar Hoover, or any other official of the FBI.The FOIA does render the "Executive Office of the President" an agency subject to the Act. 5 U.S.C. § 552(e). The legislative history is unambiguous, however, in explaining that the "Executive Office" does not include the Office of the President. The Conference Report for the 1974 FOIA Amendments indicates that "the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President" are not included within the term "agency" under the FOIA. H.R.Conf.Rep. No. 93-1380, p. 15 (1974), reprinted in Source Book II, p. 232. Safire's request was limited to a period of time in which Kissinger was serving as Assistant to the President. Thus, these telephone notes were not "agency records" when they were made.The RCFP requesters have argued that, since some of the telephone notes made while Kissinger was adviser to the President may have related to the National Security Council, they may have been National Security Council records, and therefore subject to the Act. See H.R. Rep No. 93-876, p. 8 (1974), Source Book II, p. 128, indicating that the National Security Council is an executive agency to which the FOIA applies. We need not decide when records which, in the words of the RCFP requesters, merely "relate to" the affairs of an FOIA agency become records of that agency. To the extent Safire sought discussions concerning information leaks which threatened the internal secrecy of White House policymaking, he sought conversations in which Kissinger had acted in his capacity as a Presidential adviser only.Nor does his request for conversations in which his name appeared require a different conclusion. Safire never identified Page 445 U. S. 157 the request as implicating any National Security Council records. The request did not mention the National Security Council or any subject relating to the NSC. To the contrary, he requested to see transcripts Kissinger made from his White House office. Moreover, after the State Department denied the request on the grounds that these were White House records, Safire's appeal argued these were State Department records, again never suggesting they were NSC records. The FOIA requires the requester to adequately identify the records which are sought. 5 U.S.C. § 552(a)(3)(A). Safire's request did not describe the records as relating to the NSC or in any way put the agency on notice that it should refer the request to the NSC. See 5 U.S.C. § 552(a)(6)(b)(iii). Therefore, we also need not address the issue of when an agency violates the Act by refusing to produce records of another agency, or failing to refer a request to the appropriate agency.The RCFP requesters nevertheless contend that, if the transcripts of telephone conversations made while adviser to the President were not their "agency records," they acquired that status under the Act when they were removed from White House files and physically taken to Kissinger's office at the Department of State. We simply decline to hold that the physical location of the notes of telephone conversations renders them "agency records." The papers were not in the control of the State Department at any time. They were not generated in the State Department. They never entered the State Department's files, and they were not used by the Department for any purpose. If mere physical location of papers and materials could confer status as an "agency record," Kissinger's personal books, speeches, and all other memorabilia stored in his office would have been agency records subject to disclosure under the FOIA. It requires little discussion or analysis to conclude that the lower courts correctly resolved this question in favor of Kissinger. See also Forsham v. Harris, post, p. 445 U. S. 169. Page 445 U. S. 158Accordingly, we reverse the order of the Court of Appeals compelling production of the telephone manuscripts made by Kissinger while Secretary of State and affirm the order denying the requests for transcripts produced while Kissinger served as National Security Adviser.It is so ordered

U.S. Supreme CourtKissinger v. Reporters Committee, 445 U.S. 136 (1980)Kissinger v. Reporters Committee for Freedom of the PressNo. 78-1088Argued October 31, 1979Decided March 3, 1980*445 U.S. 136SyllabusHenry Kissinger served as an Assistant to the President for National Security Affairs from 1969 to 1975 and as Secretary of State from 1973 to 1977. Throughout these periods, his secretaries monitored his telephone conversations and recorded their contents either by shorthand or on tape. The stenographic notes or tapes were used to prepare summaries and sometimes verbatim transcripts of the conversations (hereafter notes or telephone notes). In 1976, after the notes had been moved from Kissinger's office in the State Department to a private estate in New York, he donated them to the Library of Congress, subject to an agreement restricting public access to them for a specified period, and they were transported to the Library. Three requests for the notes were made to the State Department under the Freedom of Information Act (FOIA): (1) a request by a newspaper columnist (Safire), at a time when the notes were still located in Kissinger's State Department office, for any notes covering certain dates in which Safire's name appeared or in which Kissinger discussed information "leaks" with certain White House officials; (2) a request by the Military Audit Project, after the notes had been transferred to the Library of Congress, for all notes made while Kissinger was Secretary of State; and (3) a request at about the same time by the Reporters Committee for Freedom of the Press and others for notes made both while Kissinger was Presidential Assistant and while he was Secretary of State. The State Department denied the first request on the ground that the requested notes had been made while Kissinger was Presidential Assistant, and therefore were not agency records subject to FOIA disclosure. The second and third requests were denied on the grounds both that the requested notes were not agency records and that their deposit with the Library of Congress prior to the requests terminated the State Department's custody and control. During this period when he was no longer Secretary of State, Kissinger refused the Government Archivist's Page 445 U. S. 137 requests for return of the notes. Suits were filed by the various FOIA requesters against Kissinger, the Library of Congress, the Secretary of State, and the State Department, seeking enforcement of the FOIA requests and a declaratory judgment that the telephone notes were agency records that had been unlawfully removed and were being improperly withheld. The District Court ruled in the plaintiffs' favor as to the notes made while Kissinger was Secretary of State, but denied relief as to the notes made while he was Presidential Assistant, finding that the former notes were "agency records" subject to disclosure under the FOIA, and that Kissinger had wrongfully removed them from the State Department in violation of the Federal Records Disposal Act. An order was entered requiring the Library of Congress to return the Secretary of State notes to the State Department and requiring the Department to determine which of the notes are exempt from disclosure under the FOIA and to provide the required materials to the plaintiffs. The Court of Appeals affirmed.Held:1. The District Court had no authority to order transfer of the notes, including those made while Kissinger was Secretary of State, from the Library of Congress to the State Department at the behest of the named plaintiffs. Pp. 445 U. S. 146-155.(a) No provision of either the Federal Records Act of 1950, which establishes a records management program for federal agencies, or the complementary Records Disposal Act, which provides the exclusive means for record disposal, expressly confers a right of action on private parties, nor can such a right of action be implied. The language of these Acts merely "proscribes certain conduct," and does not "create or alter civil liabilities," Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 444 U. S. 19, and the Records Act also expressly provides administrative remedies for violations of the Act. Moreover, the legislative history of the Acts confirms that congressional silence as to a private right of action was purposeful, indicating that their purpose was not to benefit private parties, but solely to benefit the agencies themselves and the Federal Government as a whole. Thus, regardless of whether Kissinger had violated these Acts, Congress has not vested federal courts with jurisdiction to adjudicate that question upon suit by a private party, such responsibility being vested in the administrative authorities. Pp. 445 U. S. 147-150.(b) Nor does the FOIA furnish the congressional intent to permit private actions to recover records wrongfully removed from Government custody. Under this Act, federal jurisdiction is dependent upon a showing that an agency has (1) "improperly" (2) "withheld" (3) "agency Page 445 U. S. 138 records." Here, the State Department, a covered agency, has not "withheld" agency records within the meaning of the FOIA, since Congress did not mean that an agency improperly withholds a document that has been removed from the agency's possession prior to the filing of the FOIA request, the agency in such case having neither the custody nor control necessary to enable it to withhold. And an agency's failure to sue a third party to obtain possession is not a withholding under the Act. This conclusion that possession or control is a prerequisite to FOIA disclosure is reinforced by an examination of the Act's purposes, from which it is apparent that Congress never intended, when it enacted the FOIA, to displace the statutory scheme embodied in the Federal Records and Records Disposal Acts providing for administrative remedies to safeguard against wrongful removal of agency records as well as to retrieve wrongfully removed records. Pp. 445 U. S. 150-154.(c) Under the circumstances of this case, where Kissinger had refused the Archivist's requests for return of the documents and he and the Library of Congress as his donee are holding the documents in question under a claim of right, the State Department cannot be said to have had possession or control of the documents at the time the requests were received, and therefore it did not withhold any agency records, an indispensable prerequisite to liability in a suit under the FOIA. Pp. 154-155.2. Safire's request sought disclosure of documents that were not "agency records" within the meaning of the FOIA. While the FOIA makes the "Executive Office of the President" an agency subject to the Act, the legislative history makes it clear that the "Executive Office" does not include the Office of the President. Thus, since Safire's request sought notes made by Kissinger while acting in his capacity as Presidential Assistant, the requested notes were not "agency records" when they were made. Pp. 445 U. S. 155-157.191 U.S.App.D.C. 213, 589 F.2d 1116, affirmed in part and reversed in part.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and POWELL, JJ., joined. BRENNAN, J., post, p. 445 U. S. 158, and STEVENS, J., post, p. 445 U. S. 161, filed opinions concurring in part and dissenting in part. MARSHALL, J., took no part in the consideration or decision of the cases. BLACKMUN, J., took no part in the decision of the cases. Page 445 U. S. 139

1986_85-129

JUSTICE O'CONNOR delivered the opinion of the Court.The Missouri Supreme Court concluded that the Federal Unemployment Tax Act, 26 U.S.C. § 3304(a)(12), does not prohibit a State from disqualifying unemployment compensation claimants who leave their jobs because of pregnancy, when the State imposes the same disqualification on all claimants who leave their jobs for a reason not causally connected to their work or their employer. 688 S.W.2d 344 (1985). We granted certiorari, 475 U. S. 1118 (1986), because the court's decision conflicts with that of the Court of Appeals for the Fourth Circuit in Brown v. Porcher, 660 F.2d 1001 (1981), cert. denied, 459 U. S. 1150 (1983), on a question of practical significance in the administration of state unemployment compensation laws.IIn August, 1980, after having been employed by the J. C. Penney Company for approximately three years, petitioner requested a leave of absence on account of her pregnancy. Page 479 U. S. 513 Pursuant to its established policy, the J. C. Penney Company granted petitioner a "leave without guarantee of reinstatement," meaning that petitioner would be rehired only if a position was available when petitioner was ready to return to work. Petitioner's child was born on November 5, 1980. On December 1, 1980, when petitioner notified J. C. Penney that she wished to return to work, she was told that there were no positions open.Petitioner then filed a claim for unemployment benefits. The claim was denied by the Division of Employment Security (Division) pursuant to Mo.Rev.Stat. § 288.050.1(1) (Supp. 1984), which disqualifies a claimant who "has left his work voluntarily without good cause attributable to his work or to his employer." A deputy for the Division determined that petitioner had "quit because of pregnancy," App. to Pet. for Cert. A53, and therefore had left work "voluntarily and without good cause attributable to [her] work or to [her] employer." Id. at A52. Petitioner appealed the decision to the Division's appeals tribunal, which, after a full evidentiary hearing, entered findings of fact and conclusions of law affirming the deputy's decision. The Labor and Industrial Relations Commission denied petitioner's petition for review.Petitioner then sought review in the Circuit Court of Jackson County, Missouri. The court concluded that § 288.050.1(1) was inconsistent with 26 U.S.C. § 3304(a)(12) as construed in Brown v. Porcher, supra, and therefore could not be enforced. Following Brown, the Circuit Court held that § 3304(a)(12) "banned the use of pregnancy or its termination as an excuse for denying benefits to otherwise eligible women," App. to Pet. for Cert. A44, and accordingly reversed the Commission's decision and remanded for entry of an award. The Missouri Court of Appeals affirmed. Although the Court of Appeals expressed "reservations concerning the soundness of the ruling in Brown," id. at A39, it Page 479 U. S. 514 felt constrained to follow the Fourth Circuit's construction of § 3304(a)(12).The Missouri Supreme Court reversed, with three judges dissenting. The court held that previous state appellate decisions had correctly interpreted Mo.Rev.Stat. § 288.050.1(1) (Supp.1984) as disqualifying all claimants who, like petitioner, leave work "for reasons that, while perhaps legitimate and necessary from a personal standpoint, were not causally connected to the claimant's work or employer." 688 S.W.2d at 346. Rejecting the notion that it was bound by Brown v. Porcher, supra, the court determined that § 288.050.1(1) was consistent with the federal statute. The court held that the plain language of § 3304(a)(12) only prohibits state laws from singling out pregnancy for unfavorable treatment. The Missouri scheme does not conflict with this requirement, the court found, because the state law does not expressly refer to pregnancy; rather, benefits are denied only when claimants leave work for reasons not attributable to the employer or connected with the work. The court noted that the Department of Labor, the agency charged with enforcing the statute, consistently has viewed § 3304(a)(12) as prohibiting discrimination, rather than mandating preferential treatment. We now affirm.IIThe Federal Unemployment Tax Act (Act), 26 U.S.C. § 3301 et seq., enacted originally as Title IX of the Social Security Act in 1935, 49 Stat. 639, envisions a cooperative federal-state program of benefits to unemployed workers. See St. Martin Evangelical Lutheran Church v. South Dakota, 451 U. S. 772, 451 U. S. 775 (1981). The Act establishes certain minimum federal standards that a State must satisfy in order for a State to participate in the program. See 26 U.S.C. § 3304(a). The standard at issue in this case, § 3304(a)(12), mandates that "no person shall be denied compensation under such State law solely on the basis of pregnancy or termination of pregnancy." Page 479 U. S. 515Apart from the minimum standards reflected in § 3304(a), the Act leaves to state discretion the rules governing the administration of unemployment compensation programs. See Steward Machine Co. v. Davis, 301 U. S. 548 (1937). State programs, therefore, vary in their treatment of the distribution of unemployment benefits, although all require a claimant to satisfy some version of a three-part test. First, all States require claimants to earn a specified amount of wages or to work a specified number of weeks in covered employment during a l-year base period in order to be entitled to receive benefits. Second, all States require claimants to be "eligible" for benefits, that is, they must be able to work and available for work. Third, claimants who satisfy these requirements may be "disqualified" for reasons set forth in state law. The most common reasons for disqualification under state unemployment compensation laws are voluntarily leaving the job without good cause, being discharged for misconduct, and refusing suitable work. See Brief for United States as Amicus Curiae 2-3; Note, Denial of Unemployment Benefits to Otherwise Eligible Women on the Basis of Pregnancy: Section 3304(a)(12) of the Federal Unemployment Tax Act, 82 Mich.L.Rev. 1925, 1928-1929 (1984).The treatment of pregnancy-related terminations is a matter of considerable disparity among the States. Most States regard leave on account of pregnancy as a voluntary termination for good cause. Some of these States have specific statutory provisions enumerating pregnancy-motivated termination as good cause for leaving a job, while others, by judicial or administrative decision, treat pregnancy as encompassed within larger categories of good cause such as illness or compelling personal reasons. [Footnote 1] A few States, however, Page 479 U. S. 516 like Missouri, have chosen to define "leaving for good cause" narrowly. [Footnote 2] In these States, all persons who leave their jobs are disqualified from receiving benefits unless they leave for reasons directly attributable to the work or to the employer.Petitioner does not dispute that the Missouri scheme treats pregnant women the same as all other persons who leave for reasons not causally connected to their work or their employer, including those suffering from other types of temporary disabilities. Tr. of Oral Arg. 8. See Fifer v. Missouri Division of Employment Security, 665 S.W.2d 81 (Mo.App.1984); Duffy v. Labor and Industrial Relations Comm'n, 556 S.W.2d 195 (Mo.App.1977). She contends, however, that § 3304(a)(12) is not simply an antidiscrimination statute, but rather that it mandates preferential treatment for women who leave work because of pregnancy. According to petitioner, § 3304(a)(12) affirmatively requires States to provide unemployment benefits to women who leave work because of pregnancy when they are next available and able to work, regardless of the State's treatment of other similarly situated claimants. See Brief for Petitioner 19-25.Contrary to petitioner's assertions, the plain import of the language of § 3304(a)(12) is that Congress intended only to prohibit States from singling out pregnancy for unfavorable treatment. The text of the statute provides that compensation shall not be denied under state law "solely on the basis of pregnancy." The focus of this language is on the basis for the State's decision, not the claimant's reason for leaving her job. Thus, a State could not decide to deny benefits to pregnant women while at the same time allowing benefits to persons who are in other respects similarly situated: the "sole basis" for such a decision would be on account of pregnancy. Page 479 U. S. 517 On the other hand, if a State adopts a neutral rule that incidentally disqualifies pregnant or formerly pregnant claimants as part of a larger group, the neutral application of that rule cannot readily be characterized as a decision made "solely on the basis of pregnancy." For example, under Missouri law, all persons who leave work for reasons not causally connected to the work or the employer are disqualified from receiving benefits. To apply this law, it is not necessary to know that petitioner left because of pregnancy: all that is relevant is that she stopped work for a reason bearing no causal connection to her work or her employer. Because the State's decision could have been made without ever knowing that petitioner had been pregnant, pregnancy was not the "sole basis" for the decision under a natural reading of § 3304(a)(12)'s language.We have, on other occasions, construed language similar to that in § 3304(a)(12) as prohibiting disadvantageous treatment, rather than as mandating preferential treatment. In Monroe v. Standard Oil Co., 452 U. S. 549 (1981), for example, the Court considered 38 U.S.C. § 2021(b)(3), a provision of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, which provides that a person "shall not be denied retention in employment . . . because of any obligation" as a member of the Nation's Reserve Forces. The Monroe Court concluded that the intent of the provision was to afford reservists "the same treatment afforded their coworkers without military obligations," 452 U.S. at 452 U. S. 560; it did not create an "employer responsibility to provide preferential treatment." Id. at 452 U. S. 562. Similarly, in Southeastern Community College v. Davis, 442 U. S. 397 (1979), we considered § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which provides that an "otherwise qualified handicapped individual" shall not be excluded from a federally funded program "solely by reason of his handicap." We concluded that the statutory language was only intended to "eliminate discrimination against otherwise qualified individuals," and generally did Page 479 U. S. 518 not mandate "affirmative efforts to overcome the disabilities caused by handicaps." 442 U.S. at 442 U. S. 410.Even petitioner concedes that § 3304(a)(12) does not prohibit States from denying benefits to pregnant or formerly pregnant women who fail to satisfy neutral eligibility requirements such as ability to work and availability for work. See Brief for Petitioner 24. See also S.Rep. No. 94-1265, p. 21 (1976) ("Pregnant individuals would . . . continue to be required to meet generally applicable criteria of availability for work and ability to work"); H.R.Rep. No. 94-755, p. 50 (1975). Nevertheless, she contends that the statute prohibits the application to pregnant women of neutral disqualification provisions. Reply Brief for Petitioner 8-9. But the statute's plain language will not support the distinction petitioner attempts to draw. The statute does not extend only to disqualification rules. It applies, by its own terms, to any decision to deny compensation. In both instances, the scope of the statutory mandate is the same: the State cannot single out pregnancy for disadvantageous treatment, but it is not compelled to afford preferential treatment.The legislative history cited by petitioner does not support her view that § 3304(a)(12) mandates preferential treatment for women on account of pregnancy. Petitioner contends that § 3304(a)(12), as originally drafted, was only an antidiscrimination statute, but that the statute in its final form reaches more broadly. The original version of § 3304(a)(12) provided:"[N]o person shall be denied compensation under such State law solely on the basis of pregnancy and determinations under any provision of such State law relating to voluntary termination of employment, availability for work, active search for work, or refusal to accept work shall not be made in a manner which discriminates on the basis of pregnancy."S. 2079, 94th Cong., 1st Sess., § 8(a) (1975); H.R. 8366, 94th Cong., 1st Sess., § 8(a) (1975) (emphasis added). Page 479 U. S. 519According to petitioner, the deletion of the emphasized language, particularly the reference to "discrimination," manifests congressional intent to transform the scope of the statute. But petitioner can point to nothing in the legislative history that would support the view that Congress intended such a dramatic change. It is difficult to see how the deletion of language after the conjunctive "and" could expand the scope of the statute, when what was to become the final version of § 3304(a)(12) already was present, essentially in its entirety, in the first clause of the original bill. Indeed, however the first phrase is interpreted -- either to ban discrimination or to mandate preference -- the additional antidiscrimination language would have been superfluous. We conclude that Congress intended simply to eliminate a lengthy and redundant phrase, without intending to change the meaning of the provision. This explains Congress' silence on the question without violating either logic or language.Petitioner's reliance upon other portions of the legislative history also is unavailing. As petitioner notes, the House Report on the bill containing the language now found in § 3304(a)(12) refers to "nineteen states" that had "special disqualification provisions pertaining to pregnancy." H.R.Rep. No. 94-755, at 7. The Report goes on to observe that"[s]everal of these provisions hold pregnant women unable to work and unavailable for work; the remainder disqualify a claimant because she left work on account of her condition or because her unemployment is a result of pregnancy."Ibid. Although the Report does not specify which 19 States had "special disqualification provisions pertaining to pregnancy," the parties agree that Congress most probably was referring to the 19 States listed in a program letter issued by the Department of Labor a week before the Committee Report was filed. See Unemployment Insurance Program Letter No. 33-75 (Dec. 8, 1975). In that letter, the agency called for the repeal of state laws which "still include special disqualifications for pregnancy or automatically consider unavailable Page 479 U. S. 520 for work any pregnant claimant." Id. at 2. In an attached summary, the letter discussed the statutory provisions of 19 States relating to pregnancy.Neither Missouri nor any State with a rule like Missouri's is included in the list of 19 States having special disqualification provisions pertaining to pregnancy. The summary includes only state provisions that disqualify women from receiving unemployment compensation for a defined period around the date of childbirth (the kind of provision at issue in Turner v. Department of Employment Security of Utah, 423 U. S. 44 (1975)); provisions that specifically disqualify women who leave work because of pregnancy; and miscellaneous provisions that otherwise single out pregnancy for disadvantageous treatment. Petitioner argues that the Department omitted States with neutral disqualification provisions because "their policies were not apparent from their statutes." Brief for Petitioner 24. But Missouri does not have a "policy" specifically relating to pregnancy: it neutrally disqualifies workers who leave their jobs for reasons unrelated to their employment. The focus of the House Report clearly was on "discriminatory disqualifications because of pregnancy," H.R.Rep. No. 94-755, at 50 (emphasis added); there is no hint in the House Report of any disagreement with state provisions that neutrally disqualify workers who leave their jobs for reasons unrelated to their employment.The Senate Report also focuses exclusively on state rules that single out pregnant women for disadvantageous treatment. In Turner v. Department of Employment Security, supra, this Court struck down on due process grounds a Utah statute providing that a woman was disqualified for 12 weeks before the expected date of childbirth and for 6 weeks after childbirth, even if she left work for reasons unrelated to pregnancy. The Senate Report used the provision at issue in Turner as representative of the kind of rule that § 3304(a)(12) was intended to prohibit: Page 479 U. S. 521"In a number of States, an individual whose unemployment is related to pregnancy is barred from receiving any unemployment benefits. In 1975, the Supreme Court found a provision of this type in the Utah unemployment compensation statute to be unconstitutional. . . . A number of other States have similar provisions, although most appear to involve somewhat shorter periods of disqualification."S.Rep. No. 94-1265 at 19, 21 (emphasis added).In short, petitioner can point to nothing in the Committee Reports, or elsewhere in the statute's legislative history, that evidences congressional intent to mandate preferential treatment for women on account of pregnancy. There is no hint that Congress disapproved of, much less intended to prohibit, a neutral rule such as Missouri's. Indeed, the legislative history shows that Congress was focused only on the issue addressed by the plain language of § 3304(a)(12): prohibiting rules that single out pregnant women or formerly pregnant women for disadvantageous treatment.Finally, the Department of Labor's interpretation of § 3304(a)(12) supports the holding of the Missouri Supreme Court. Shortly after the enactment of § 3304(a)(12), the agency distributed instructions to the States regarding the implementation of its terms. Petitioner emphasizes that the instructions state, in part:"A number of State laws deny benefits for causes related to pregnancy. These provisions are inequitable in that benefits are denied regardless of whether or not the individual is able and available for work and otherwise eligible."United States Department of Labor, Employment and Training Administration, Unemployment Insurance Service, Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976 -- P.L. 94-556, p. 62 (undated 1976). If there is any ambiguity in these sentences, the balance of the communication clearly establishes that the agency viewed § 3304(a)(12) as an antidiscrimination provision: Page 479 U. S. 522"The new provision requires that the entitlement to benefits of pregnant claimants be determined on the same basis and under the same provisions applicable to all other claimants. It does not mean that pregnant claimants are entitled to benefits without meeting the requirements of the law for the receipt of benefits. It requires only that a pregnant claimant not be treated differently under the law from any other unemployed individual, and that benefits be paid or denied not on the basis of pregnancy, but on the basis of whether she meets the statute's conditions for receipt of benefits."Ibid.The agency reiterated this view in a later communication to the States, stating that § 3304(a)(12)"does not speak to treating pregnant claimants more favorably. It only requires that they not be disqualified solely on the basis of pregnancy or its termination."United States Department of Labor, Employment and Training Administration, Unemployment Insurance Service, Supplement No. 1 -- Questions and Answers Supplementing Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976 -- P.L. 94-566, p. 26 (Dec. 7, 1976). Since then, the agency has adhered to the same view. See Brief for United States as Amicus Curiae 27-28. Thus, the agency's interpretation of the statute, like its legislative history, confirms what is clear from the statute's plain language: that § 3304(a)(12) prohibits discrimination, but does not mandate preferential treatment.Because § 3304(a)(12) does not require States to afford preferential treatment to women on account of pregnancy, the judgment of the Missouri Supreme Court is affirmed.It is so ordered

U.S. Supreme CourtWimberly v. Labor & Indus. Rel. Comm'n, 479 U.S. 511 (1987)Wimberly v. Labor and Industrial Relations Commission of MissouriNo. 85-129Argued December 9, 1986Decided January 21, 1987479 U.S. 511SyllabusPetitioner, who had been on pregnancy leave from her employment pursuant to the employer's policy that she would be rehired only if a position was available when she was ready to return to work, was told when she notified the employer that she wanted to return to work that there were no positions open. She then filed a claim for unemployment benefits with the Missouri Division of Employment Security, which denied the claim pursuant to a Missouri statute that disqualifies a claimant who "has left his work voluntarily without good cause attributable to his work or to his employer." After the denial was upheld on administrative appeal, petitioner sought review in a Missouri Circuit Court, which held that the Missouri statute was inconsistent with the Federal Unemployment Tax Act, 26 U.S.C. § 3304(a)(12). The federal statute provides that no State, such as Missouri, participating in the federal-state unemployment compensation program shall deny any compensation "solely on the basis of pregnancy or termination of pregnancy." The Missouri Court of Appeals affirmed, but the Missouri Supreme Court reversed.Held: The Missouri statute is consistent with the federal statute. The plain import of § 3304(a)(12)'s language is that Congress intended only to prohibit States from singling out pregnancy for unfavorable treatment, and not to mandate preferential treatment. This is confirmed by both the legislative history and the Labor Department's interpretation of the statute. The focus of the statutory language is on the State's treatment of pregnancy, not the claimant's reason for leaving her job. To apply the Missouri statute, under which all persons who leave work for reasons not causally connected to the work or the employer are disqualified from receiving benefits, it is not necessary to know that petitioner left because of pregnancy. All that is relevant is that she stopped work for a reason having no causal connection to her work or her employer. Under the State's unemployment compensation scheme, pregnancy was not the "sole basis" for the decision under a natural reading of § 3304(a)(12)'s language. Pp. 479 U. S. 514-522.688 S.W.2d 344, affirmed.O'CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except BLACKMUN, J., who took no part in the decision of the case. Page 479 U. S. 512

1987_86-6060

JUSTICE STEVENS delivered the opinion of the Court.Petitioner and an accomplice robbed a country store in South Carolina in 1981. After petitioner left the store, a fight occurred in which the accomplice and the storekeeper's mother were both killed. Petitioner was convicted of murder and armed robbery, and sentenced to death. His conviction and sentence were affirmed by the South Carolina Supreme Court in 1982. State v. Yates, 280 S.C. 29, 310 S.E.2d 805, cert. denied, 462 U.S. 1124 (1983).At his trial, petitioner testified that the victim had not even entered the store before he left, and that he had not intended to kill or to harm anyone. The jury, however, was instructed "that malice is implied or presumed from the use of a deadly weapon." [Footnote 1] A few months after petitioner's conviction was affirmed, the South Carolina Supreme Court held that it was error to give such an instruction. See State v. Elmore, 279 S.C. 417, 308 S.E.2d 781 (1983). Thereafter, petitioner sought a writ of habeas corpus from the South Carolina Supreme Court, arguing that the burden-shifting instruction given at his trial was unconstitutional under the state court's reasoning in Elmore and under our decision in Sandstrom v. Montana, 442 U. S. 510 (1979). While the application for habeas corpus was pending, we decided another Page 484 U. S. 213 case involving a burden-shifting instruction, Francis v. Franklin, 471 U. S. 307 (1985), and petitioner promptly called that decision to the attention of the State Supreme Court. The court denied the writ without opinion.Petitioner then sought a writ of certiorari in this Court. We summarily vacated the judgment of the South Carolina Supreme Court and remanded the case "for further consideration in light of Francis v. Franklin." Yates v. Aiken, 474 U.S. 896 (1985). On remand, the state court determined that the jury instruction at petitioner's trial "suffered from the same infirmities present in Elmore and addressed in Francis v. Franklin." 290 S.C. 231, 233, 349 S.E.2d 84, 85 (1986). Nevertheless, the court held that petitioner was not entitled to relief. As an explanation for its holding, the court stated that its decision in Elmore should not be applied retroactively to invalidate a conviction that was final when Elmore was decided. The opinion did not consider whether the decision in Francis v. Franklin might apply retroactively, and also did not discuss our decision in Sandstrom v. Montana, on which petitioner had relied.In dissent, Justice Finney reasoned that Elmore and Francis v. Franklin should be applied retroactively, because an instruction that shifts the burden of proof on an element of the offense -- particularly in a capital case -- substantially impairs the truthfinding function of the jury. Moreover, he reasoned, given our decision in Sandstrom v. Montana in 1979, the case did not represent a significant change in the law. [Footnote 2] Page 484 U. S. 214We granted certiorari because we were concerned that the South Carolina Supreme Court had not fully complied with our mandate. 480 U.S. 945 (1987). We now reverse.IOur order remanding the case for further consideration in the light of Francis v. Franklin was predicated entirely on the fact that petitioner's challenge to the jury instruction asserted a substantial federal question. Our opinion in Francis explained why a challenge of this kind is supported by the Federal Constitution:"The Due Process Clause of the Fourteenth Amendment""protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."In re Winship, [397 U.S. 358, 397 U. S. 364 (1970)]. This "bedrock, axiomatic and elementary' [constitutional] principle," id. at 397 U. S. 363, prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. Sandstrom v. Montana, supra, at 442 U. S. 520-524; Patterson v. New York, 432 U. S. 197, 432 U. S. 210, 432 U. S. 215 (1977); Mullaney v. Wilbur, 421 U. S. 684, 421 U. S. 698-701 (1975); see also Morissette v. United States, 342 U. S. 246, 342 U. S. 274-275 (1952). The prohibition protects the "fundamental value determination of our society," given voice in Justice Harlan's concurrence in Winship that "it is far worse to convict an innocent man than to let a guilty man go free." 397 U.S. at 397 U. S. 372. See Speiser v. Randall, 357 U. S. 513, 357 U. S. 525-526 (1958).471 U.S. at 471 U. S. 313.The portion of the state court's opinion concluding that the instruction in petitioner's case was infirm for the reasons "addressed Page 484 U. S. 215 in Francis" was responsive to our mandate, but the discussion of the question whether the decision in Elmore should be applied retroactively was not. Our mandate contemplated that the state court would consider whether, as a matter of federal law, petitioner's conviction could stand in the light of Francis. Since the state court did not decide that question, we shall do so.IIThe South Carolina Attorney General submits that we should adopt Justice Harlan's theory that a newly announced constitutional rule should not be applied retroactively to cases pending on collateral review unless the rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Mackey v. United States, 401 U. S. 667, 401 U. S. 692 (1971) (Harlan, J., concurring in part and dissenting in part), or enunciates a procedural rule that is "implicit in the concept of ordered liberty," id. at 401 U. S. 693. Under this theory, the Attorney General argues, petitioner would not be entitled to the benefit of our ruling in Franklin.We have already endorsed Justice Harlan's retroactivity analysis for cases pending on direct appeal, see Griffith v. Kentucky, 479 U. S. 314, 479 U. S. 322 (1987); United States v. Johnson, 457 U. S. 537 (1982), and we have noted, as Justice Harlan did, Mackey, supra, at 401 U. S. 682-687; Desist v. United States, 394 U. S. 244, 394 U. S. 260 (1969) (Harlan, J., dissenting), the important distinction between direct review and collateral review. Compare Allen v. Hardy, 478 U. S. 255 (1986) (holding that Batson v. Kentucky, 476 U. S. 79 (1986) does not apply retroactively to cases on collateral review), with Griffith, supra, at 479 U. S. 322-323 (holding that Batson does apply retroactively to cases pending on direct review); see, e.g., Pennsylvania v. Finley, 481 U. S. 551 (1987) (right to appointed counsel on direct appeal not applicable in collateral proceedings). To decide this case, however, it is not necessary Page 484 U. S. 216 to determine whether we should go further and adopt Justice Harlan's reasoning as to the retroactivity of cases announcing new constitutional rules to cases pending on collateral review.Although Justice Harlan believed that most collateral attacks on final judgments should be resolved by reference to the state of the law at the time of the petitioner's conviction, he emphasized the proposition that many "new" holdings are merely applications of principles that were well settled at the time of conviction. As he explained in Desist:"The theory that the habeas petitioner is entitled to the law prevailing at the time of his conviction is, however, one which is more complex than the Court has seemingly recognized. First, it is necessary to determine whether a particular decision has really announced a 'new' rule at all, or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law. . . . One need not be a rigid partisan of Blackstone to recognize that many, though not all, of this Court's constitutional decisions are grounded upon fundamental principles whose content does not change dramatically from year to year, but whose meanings are altered slowly and subtly as generation succeeds generation. In such a context, it appears very difficult to argue against the application of the 'new' rule in all habeas cases, since one could never say with any assurance that this Court would have ruled differently at the time the petitioner's conviction became final."394 U.S. at 394 U. S. 263-264.This reasoning, which we previously have endorsed, [Footnote 3] is controlling in this case, because our decision in Francis was Page 484 U. S. 217 merely an application of the principle that governed our decision in Sandstrom v. Montana, which had been decided before petitioner's trial took place. We explicitly so held in Francis itself:"The question before the Court in this case is almost identical to that before the Court in Sandstrom: whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the 'critical question of . . . state of mind,' 442 U.S. at 442 U. S. 521, by creating a mandatory presumption of intent upon proof by the State of other elements of the offense."471 U.S. at 313."Sandstrom v. Montana made clear that the Due Process Clause of the Fourteenth Amendment prohibits the State from making use of jury instructions that have the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of intent in a criminal prosecution. 442 U.S. at 442 U. S. 521. Today we reaffirm the rule of Sandstrom and the wellspring due process principle from which it was drawn. The Court of Appeals faithfully and correctly applied this rule, and the court's judgment is therefore affirmed."Id. at 471 U. S. 326-327.IIIRespondents also argue that South Carolina has the authority to establish the scope of its own habeas corpus proceedings, and to refuse to apply a new rule of federal constitutional law retroactively in such a proceeding. We reject this argument for two reasons. First, as we have just explained, Page 484 U. S. 218 Francis did not announce a new rule. Second, we do not read the South Carolina Supreme Court's opinion as having placed any limit on the issues that it will entertain in collateral proceedings. Since it has considered the merits of the federal claim, it has a duty to grant the relief that federal law requires.The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtYates v. Aiken, 484 U.S. 211 (1988)Yates v. AikenNo. 86-6060Argued December 2, 1987Decided January 12, 1988484 U.S. 211SyllabusPetitioner was tried in state court on charges of murder and armed robbery stemming from a 1981 store robbery during which his accomplice and the storekeeper's mother were killed in a fight after petitioner left the store. Although petitioner testified that the mother had not even entered the store before he left, and that he had not intended to kill or harm anyone, the jury was instructed "that malice is implied or presumed from the use of a deadly weapon." After his conviction and death sentence were affirmed by the South Carolina Supreme Court, petitioner sought a writ of habeas corpus from that court, arguing, inter alia, that the burden-shifting instruction given at trial was unconstitutional under Sandstrom v. Montana, 442 U. S. 510. While the habeas corpus application was pending, petitioner also called to the state court's attention this Court's subsequent decision in Francis v. Franklin, 471 U. S. 307. After this Court summarily vacated the state court's summary denial of the writ and remanded the case "for further consideration in light of Francis," the state court, although acknowledging that the jury instruction suffered from the same infirmities addressed in Francis, denied relief on state law grounds without considering whether Francis might apply retroactively, and without discussing Sandstrom.Held: As a matter of federal law, petitioner's conviction cannot stand in light of Francis. Pp. 484 U. S. 215-218.(a) Sandstrom, which had been decided before petitioner's trial took place, established that the Due Process Clause of the Fourteenth Amendment prohibits jury instructions that have the effect of relieving the State of its burden of proof on the critical question of intent in a criminal prosecution. Francis was merely an application of that governing principle. Accordingly, respondents' argument that a newly announced constitutional rule should not generally be applied retroactively to cases pending on collateral review cannot operate to deny petitioner the benefit of Francis. That argument simply does not apply where the "new" holding is merely an application of a rule that was well settled at the time of conviction. Pp. 484 U. S. 215-217.(b) The State's contention that it has the authority to establish the scope of its own habeas corpus proceedings and to refuse therein to apply a new rule of federal constitutional law retroactively is rejected. since Francis did not announce a new rule and since the state court's opinion Page 484 U. S. 212 does not place any limit on the issues it will entertain in collateral proceedings. Having considered the merits of the federal claim, that court has the duty to grant the relief that federal law requires. Pp. 484 U. S. 217-218.290 S.C. 231, 349 S.E.2d 84, reversed and remanded.STEVENS, J., delivered the opinion for a unanimous Court.

2000_00-949

Per CuriamPER CURIAM.IOn December 8, 2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-Dade County. It also ordered the inclusion in the certified vote totals of 215 votes identified in Palm Beach County and 168 votes identified in Miami-Dade County for Vice President Albert Gore, Jr., and Senator Joseph Lieberman, Democratic candidates for President and Vice President. The State Supreme Court noted that petitioner George W. Bush asserted that the net gain for Vice President Gore in Palm Beach County was 176 votes, and directed the Circuit Court to resolve that dispute on remand. Gore v. Harris, 772 So. 2d 1243, 1248, n. 6. The court further held that relief would require manual recounts in all Florida counties where so-called "undervotes" had not been subject to manual tabulation. The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican candidates for President and Vice President, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari. Post, p. 1046.The proceedings leading to the present controversy are discussed in some detail in our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p. 70 (per curiam) (Bush I). On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that petitioner Bush had received 2,909,135 votes, and respondent Gore had received 2,907,351 votes, a margin ofMr. Butterworth, pro se, Paul F. Hancock, Deputy Attorney General, Jason Vail, Assistant Attorney General, and Kimberly J. Tucker.Briefs of amici curiae were filed for the National Bar Association by David Earl Honig; for Robert Harris et al. by Bruce J. Terris, Carolyn Smith Pravlik, Kathleen L. Millian, Sarah A. Adams, and Roger J. Bernstein; and for Michael F. Wasserman, pro se.1011,784 for Governor Bush. Because Governor Bush's margin of victory was less than "one-half of a percent ... of the votes cast," an automatic machine recount was conducted under § 102.141(4) of the Florida Election Code, the results of which showed Governor Bush still winning the race but by a diminished margin. Vice President Gore then sought manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade Counties, pursuant to Florida's election protest provisions. Fla. Stat. Ann. § 102.166 (Supp. 2001). A dispute arose concerning the deadline for local county canvassing boards to submit their returns to the Secretary of State (Secretary). The Secretary declined to waive the November 14 deadline imposed by statute. §§ 102.111, 102.112. The Florida Supreme Court, however, set the deadline at November 26. We granted certiorari and vacated the Florida Supreme Court's decision, finding considerable uncertainty as to the grounds on which it was based. Bush I, ante, at 78. On December 11, the Florida Supreme Court issued a decision on remand reinstating that date. Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273, 1290.On November 26, the Florida Elections Canvassing Commission certified the results of the election and declared Governor Bush the winner of Florida's 25 electoral votes. On November 27, Vice President Gore, pursuant to Florida's contest provisions, filed a complaint in Leon County Circuit Court contesting the certification. Fla. Stat. Ann. § 102.168 (Supp. 2001). He sought relief pursuant to § 102.168(3)(c), which provides that "[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election" shall be grounds for a contest. The Circuit Court denied relief, stating that Vice President Gore failed to meet his burden of proof. He appealed to the First District Court of Appeal, which certified the matter to the Florida Supreme Court.Accepting jurisdiction, the Florida Supreme Court affirmed in part and reversed in part. Gore v. Harris, 772102Per CuriamSo. 2d 1243 (2000). The court held that the Circuit Court had been correct to reject Vice President Gore's challenge to the results certified in Nassau County and his challenge to the Palm Beach County Canvassing Board's determination that 3,300 ballots cast in that county were not, in the statutory phrase, "legal votes."The Supreme Court held that Vice President Gore had satisfied his burden of proof under § 102.168(3)(c) with respect to his challenge to Miami-Dade County's failure to tabulate, by manual count, 9,000 ballots on which the machines had failed to detect a vote for President ("undervotes"). Id., at 1256. Noting the closeness of the election, the court explained that "[o]n this record, there can be no question that there are legal votes within the 9,000 uncounted votes sufficient to place the results of this election in doubt." Id., at 1261. A "legal vote," as determined by the Supreme Court, is "one in which there is a 'clear indication of the intent of the voter.'" Id., at 1257. The court therefore ordered a hand recount of the 9,000 ballots in Miami-Dade County. Observing that the contest provisions vest broad discretion in the circuit judge to "provide any relief appropriate under such circumstances," § 102.168(8), the Supreme Court further held that the Circuit Court could order "the Supervisor of Elections and the Canvassing Boards, as well as the necessary public officials, in all counties that have not conducted a manual recount or tabulation of the undervotes ... to do so forthwith, said tabulation to take place in the individual counties where the ballots are located." Id., at 1262.The Supreme Court also determined that Palm Beach County and Miami-Dade County, in their earlier manual recounts, had identified a net gain of 215 and 168 legal votes, respectively, for Vice President Gore. Id., at 1260. Rejecting the Circuit Court's conclusion that Palm Beach County lacked the authority to include the 215 net votes sub-103mitted past the November 26 deadline, the Supreme Court explained that the deadline was not intended to exclude votes identified after that date through ongoing manual recounts. As to Miami-Dade County, the court concluded that although the 168 votes identified were the result of a partial recount, they were "legal votes [that] could change the outcome of the election." Ibid. The Supreme Court therefore directed the Circuit Court to include those totals in the certified results, subject to resolution of the actual vote total from the Miami-Dade partial recount.The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, § 1, cl. 2, of the United States Constitution and failing to comply with 3 U. S. C. § 5, and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause.II AThe closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot. See Ho, More Than 2M Ballots Uncounted, AP Online (Nov. 28, 2000); Kelley, Balloting Problems Not Rare But Only in a Very Close Election Do Mistakes and Mismarking Make a Difference, Omaha World-Herald (Nov. 15,2000). In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.104Per CuriamThis case has shown that punchcard balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting.BThe individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U. S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (" '[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated''') (quotingThe right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that105of another. See, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) ("[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment"). It must be remembered that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 377 U. S. 533, 555 (1964).There is no difference between the two sides of the present controversy on these basic propositions. Respondents say that the very purpose of vindicating the right to vote justifies the recount procedures now at issue. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to register the perforations. In some cases a piece of the card-a chad-is hanging, say, by two corners. In other cases there is no separation at all, just an indentation.The Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right. Florida's basic command for the count of legally cast votes is to consider the "intent of106Per Curiamthe voter." 772 So. 2d, at 1262. This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary.The law does not refrain from searching for the intent of the actor in a multitude of circumstances; and in some cases the general command to ascertain intent is not susceptible to much further refinement. In this instance, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered as a vote during the machine count. The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment.The want of those rules here has led to unequal evaluation of ballots in various respects. See id., at 1267 (Wells, C. J., dissenting) ("Should a county canvassing board count or not count a 'dimpled chad' where the voter is able to successfully dislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree"). As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. 3 Tr. 497, 499 (Dec. 3, 2000). And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that consid-107ered a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment.An early case in our one-person, one-vote jurisprudence arose when a State accorded arbitrary and disparate treatment to voters in its different counties. Gray v. Sanders, 372 U. S. 368 (1963). The Court found a constitutional violation. We relied on these principles in the context of the Presidential selection process in Moore v. Ogilvie, 394 U. S. 814 (1969), where we invalidated a county-based procedure that diluted the influence of citizens in larger counties in the nominating process. There we observed that "[t]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government." Id., at 819.The State Supreme Court ratified this uneven treatment.It mandated that the recount totals from two counties, Miami-Dade and Palm Beach, be included in the certified total. The court also appeared to hold sub silentio that the recount totals from Broward County, which were not completed until after the original November 14 certification by the Secretary, were to be considered part of the new certified vote totals even though the county certification was not contested by Vice President Gore. Yet each of the counties used varying standards to determine what was a legal vote. Broward County used a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between the counties.In addition, the recounts in these three counties were not limited to so-called undervotes but extended to all of the ballots. The distinction has real consequences. A manual recount of all ballots identifies not only those ballots which show no vote but also those which contain more than one,108Per Curiamthe so-called overvotes. Neither category will be counted by the machine. This is not a trivial concern. At oral argument, respondents estimated there are as many as 110,000 overvotes statewide. As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernible by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent. Furthermore, the citizen who marks two candidates, only one of which is discernible by the machine, will have his vote counted even though it should have been read as an invalid ballot. The State Supreme Court's inclusion of vote counts based on these variant standards exemplifies concerns with the remedial processes that were under way.That brings the analysis to yet a further equal protection problem. The votes certified by the court included a partial total from one county, Miami-Dade. The Florida Supreme Court's decision thus gives no assurance that the recounts included in a final certification must be complete. Indeed, it is respondents' submission that it would be consistent with the rules of the recount procedures to include whatever partial counts are done by the time of final certification, and we interpret the Florida Supreme Court's decision to permit this. See 772 So. 2d, at 1261-1262, n. 21 (noting "practical difficulties" may control outcome of election, but certifying partial Miami-Dade total nonetheless). This accommodation no doubt results from the truncated contest period established by the Florida Supreme Court in Palm Beach County Canvassing Bd. v. Harris, at respondents' own urging. The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.109In addition to these difficulties the actual process by which the votes were to be counted under the Florida Supreme Court's decision raises further concerns. That order did not specify who would recount the ballots. The county canvassing boards were forced to pull together ad hoc teams of judges from various Circuits who had no previous training in handling and interpreting ballots. Furthermore, while others were permitted to observe, they were prohibited from objecting during the recount.The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.Given the Court's assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order directing the recount so it could hear this case and render an expedited decision. The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections. The State has not shown that its procedures include the necessary safeguards. The problem, for instance, of the estimated 110,000 overvotes has not been110Per Curiamaddressed, although Chief Justice Wells called attention to the concern in his dissenting opinion. See 772 So. 2d, at 1264, n. 26.Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. In addition, the Secretary has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out undervotes, a function for which the machines were not designed. If a recount of overvotes were also required, perhaps even a second screening would be necessary. Use of the equipment for this purpose, and any new software developed for it, would have to be evaluated for accuracy by the Secretary, as required by Fla. Stat. Ann. § 101.015 (Supp. 2001).The Supreme Court of Florida has said that the legislature intended the State's electors to "participat[e] fully in the federal electoral process," as provided in 3 U. S. C. § 5. 772 So. 2d, at 1289; see also Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220, 1237 (Fla. 2000). That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court's order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.111Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 134 (SOUTER, J., dissenting); post, at 145-146 (BREYER, J., dissenting). The only disagreement is as to the remedy. Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U. S. C. § 5, JUSTICE BREYER'S proposed remedy-remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18-contemplates action in violation of the Florida Election Code, and hence could not be part of an "appropriate" order authorized by Fla. Stat. Ann. § 102.168(8) (Supp. 2001).***None are more conscious of the vital limits on judicial authority than are the Members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.Pursuant to this Court's Rule 45.2, the Clerk is directed to issue the mandate in this case forthwith.It is so ordered

OCTOBER TERM, 2000SyllabusBUSH ET AL. v. GORE ET AL.CERTIORARI TO THE SUPREME COURT OF FLORIDANo. 00-949. Argued December 11, 2000-Decided December 12,2000On December 8, 2000, the Florida Supreme Court ordered, inter alia, that manual recounts of ballots for the recent Presidential election were required in all Florida counties where so-called "undervotes" had not been subject to manual tabulation, and that the manual recounts should begin at once. Noting the closeness of the election, the court explained that, on the record before it, there could be no question that there were uncounted "legal votes"-i. e., those in which there was a clear indication of the voter's intent-sufficient to place the results of the election in doubt. Petitioners, the Republican candidates for President and Vice President who had been certified as the winners in Florida, filed an emergency application for a stay of this mandate. On December 9, this Court granted the stay application, treated it as a petition for a writ of certiorari, and granted certiorari.Held: Because it is evident that any recount seeking to meet 3 U. S. C. § 5's December 12 "safe-harbor" date would be unconstitutional under the Equal Protection Clause, the Florida Supreme Court's judgment ordering manual recounts is reversed. The Clause's requirements apply to the manner in which the voting franchise is exercised. Having once granted the right to vote on equal terms, Florida may not, by later arbitrary and disparate treatment, value one person's vote over that of another. See, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665. The recount mechanisms implemented in response to the state court's decision do not satisfy the minimum requirement for nonarbitrary treatment of voters. The record shows that the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another. In addition, the recounts in three counties were not limited to so-called undervotes but extended to all of the ballots. Furthermore, the actual process by which the votes were to be counted raises further concerns because the court's order did not specify who would recount the ballots. Where, as here, a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. The State has not shown that its procedures include the necessary safeguards. Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance99with the requirements of equal protection and due process without substantial additional work. The court below has said that the legislature intended the State's electors to participate fully in the federal electoral process, as provided in 3 U. S. C. § 5, which requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is here, but there is no recount procedure in place under the state court's order that comports with minimal constitutional standards.772 So. 2d 1243, reversed and remanded.Theodore B. Olson argued the cause for petitioners. With him on the brief were Douglas R. Cox, Thomas G. Hungar, Benjamin L. Ginsberg, Michael A. Carvin, Barry Richard, Miguel A. Estrada, George J. Terwilliger III, Timothy E. Flanigan, William K. Kelley, John F. Manning, and Bradford R. Clark. Joseph P. Klock, Jr., argued the cause for Katherine Harris et al., respondents under this Court's Rule 12.6 in support of petitioners. With him on the brief were John W Little III, Alvin F. Lindsay III, Ricardo M. Martinez-Cid, and Bill L. Bryant, Jr. Briefs in support of petitioners were filed by William Kemper Jennings for Glenda Carr et al.; by Robert A. Destro for Stephen Cruce et al.; and by George S. LeMieux and Frederick J. Springer for John E. Thrasher, all respondents under this Court's Rule 12.6.David Boies argued the cause for respondents Gore et al.With him on the brief were Laurence H. Tribe, Andrew J. Pincus, Thomas C. Goldstein, Jonathan S. Massey, Kendall Coffey, and Peter J. Rubin. **Briefs of amici curiae urging reversal were filed for the State of Alabama by Bill Pryor, Attorney General, and Charles B. Campbell, Scott L. Rouse, and A. Vernon Barnett TV; Assistant Attorneys General; for the Florida House of Representatives et al. by Charles Fried, Einer Elhauge, and Roger J. Magnuson; for William H. Haynes et al. by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., David A. Cortman, Griffin B. Bell, Paul D. Clement, and Jeffrey S. Bucholtz.Briefs of amici curiae urging affirmance were filed for the Brennan Center for Justice at New York University School of Law by Burt Neuborne; and for Robert A. Butterworth, Attorney General of Florida, by100Full Text of Opinion

1971_71-308

MR. JUSTICE POWELL delivered the opinion of the Court.Decedent, Milliken C. Byrum, created in 1958 an irrevocable trust to which he transferred shares of stock in three closely held corporations. Prior to transfer, he owned at least 71% of the outstanding stock of each corporation. The beneficiaries were his children or, in the event of their death before the termination of the trust, their surviving children. The trust instrument specified that there be a corporate trustee. Byrum designated as sole trustee an independent corporation, Huntington National Bank. The trust agreement vested Page 408 U. S. 127 in the trustee broad and detailed powers with respect to the control and management of the trust property. These powers were exercisable in the trustee's sole discretion, subject to certain rights reserved by Byrum: (i) to vote the shares of unlisted stock held in the trust estate; (ii) to disapprove the sale or transfer of any trust assets, including the shares transferred to the trust; (iii) to approve investments and reinvestments; and (iv) to remove the trustee and "designate another corporate Trustee to serve as successor." Until the youngest living child reached age 21, the trustee was authorized in its "absolute and sole discretion" to pay the income and principal of the trust to or for the benefit of the beneficiaries, "with due regard to their individual needs for education, care, maintenance and support." After the youngest child reached 21, the trust was to be divided into a separate trust for each child, to terminate when the beneficiaries reached 35. The trustee was authorized in its discretion to pay income and principal from these trusts to the beneficiaries for emergency or other "worthy need," including education. [Footnote 1] Page 408 U. S. 128When he died in 1964, Byrum owned less than 50% of the common stock in two of the corporations and 59% in the third. The trust had retained the shares Page 408 U. S. 129 transferred to it, with the result that Byrum had continued to have the right to vote not less than 71% of the common stock in each of the three' corporations. [Footnote 2] Page 408 U. S. 130 There were minority stockholders, unrelated to Byrum, in each corporation.Following Byrum's death, the Commissioner of Internal Revenue determined that the transferred stock was properly included within Byrum's gross estate under § 2036(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 2036(a). That section provides for the inclusion in a decedent's gross estate of all property which the decedent has transferred by inter vivos transaction, if he has retained for his lifetime "(1) the possession or enjoyment of, or the right to the income from, the property" transferred, or "(2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income Page 408 U. S. 131 therefrom." [Footnote 3] The Commissioner determined that the stock transferred into the trust should be included in Byrum's gross estate because of the rights reserved by him in the trust agreement. It was asserted that his right to vote the transferred shares and to veto any sale thereof by the trustee, together with the ownership of other shares, enabled Byrum to retain the "enjoyment of . . . the property," and also allowed him to determine the flow of income to the trust, and thereby "designate the persons who shall . . . enjoy . . . the income."The executrix of Byrum's estate paid an additional tax of $13,202.45, and thereafter brought this refund action in District Court. The facts not being in dispute, the court ruled for the executrix on cross-motions for summary judgment. 311 F. Supp. 892 (SD Ohio 1970). The Court of Appeals affirmed, one judge dissenting. 440 F.2d 949 (CA6 1971). We granted the Government's petition for certiorari. 404 U.S. 937 (1971).IThe Government relies primarily on its claim, made under § 2036(a)(2), that Byrum retained the right to Page 408 U. S. 132 designate the persons who shall enjoy the income from the transferred property. The argument is a complicated one. By retaining voting control over the corporations whose stock was transferred, Byrum was in a position to select the corporate directors. He could retain this position by not selling the shares he owned and by vetoing any sale by the trustee of the transferred shares. These rights, it is said, gave him control over corporate dividend policy. By increasing, decreasing, or stopping dividends completely, it is argued that Byrum could "regulate the flow of income to the trust," and thereby shift or defer the beneficial enjoyment of trust income between the present beneficiaries and the remaindermen. The sum of this retained power is said to be tantamount to a grantor-trustee's power to accumulate income in the trust, which this Court has recognized constitutes the power to designate the persons who shall enjoy the income from transferred property. [Footnote 4]At the outset, we observe that this Court has never held that trust property must be included in a settlor's gross estate solely because the settlor retained the power Page 408 U. S. 133 to manage trust assets. On the contrary, since our decision in Reinecke v. Northern Trust Co., 278 U. S. 339 (1929), it has been recognized that a settlor's retention of broad powers of management does not necessarily subject an inter vivos trust to the federal estate tax. [Footnote 5] Although there was no statutory analogue to § 2036(a)(2) when Northern Trust was decided, several lower court decisions decided after the enactment of the predecessor of § 2036(a)(2) have upheld the settlor's right to exercise managerial powers without incurring estate tax liability. [Footnote 6] In Estate of King v. Commissioner, 37 T.C. 973 (1962), a settlor reserved the power to direct the trustee in the management and investment of trust assets. The Government argued that the settlor was thereby empowered to cause investments to be made in such a manner as to control significantly the flow of income into the trust. The Tax Court rejected this argument, and held for the taxpayer. Although the court recognized that the settlor had reserved "wide latitude in the exercise of his discretion as to the types of investments to be made," id. at 980, it did not find this control over the flow of income to be equivalent Page 408 U. S. 134 to the power to designate who shall enjoy the income from the transferred property.Essentially, the power retained by Byrum is the same managerial power retained by the settlors in Northern Trust and in King. Although neither case controls this one -- Northern Trust because it was not decided under § 2036(a)(2) or a predecessor; and King because it is a lower court opinion -- the existence of such precedents carries weight. [Footnote 7] The holding of Northern Trust, that the settlor of a trust may retain broad powers of management without adverse estate tax consequences, may have been relied upon in the drafting of hundreds of inter vivos trusts. [Footnote 8] The modification of this principle now sought by the Government could have a seriously adverse impact, especially upon settlors (and their estates) who happen to have been "controlling" stockholders Page 408 U. S. 135 of a closely held corporation. Courts properly have been reluctant to depart from an interpretation of tax law which has been generally accepted when the departure could have potentially far-reaching consequences. When a principle of taxation requires reexamination, Congress is better equipped than a court to define precisely the type of conduct which results in tax consequences. When courts readily undertake such tasks, taxpayers may not rely with assurance on what appear to be established rules lest they be subsequently overturned. Legislative enactments, on the other hand, although not always free from ambiguity, at least afford the taxpayers advance warning.The Government argues, however, that our opinion in United States v. O'Malley, 383 U. S. 627 (1966), compels the inclusion in Byrum's estate of the stock owned by the trust. In O'Malley, the settlor of an inter vivos trust named himself as one of the three trustees. The trust agreement authorized the trustees to pay income to the life beneficiary or to accumulate it as a part of the principal of the trust in their "sole discretion." The agreement further provided that net income retained by the trustees, and not distributed in any calendar year, "shall become a part of the principal of the Trust Estate."' Id. at 383 U. S. 629 n. 2. The Court characterized the effect of the trust as follows: "Here Fabrice [the settlor] was empowered, with the other trustees, to distribute the trust income to the income beneficiaries or to accumulate it and add it to the principal, thereby denying to the beneficiaries the privilege of immediate enjoyment and conditioning their eventual enjoyment upon surviving the termination of the trust."Id. at 383 U. S. 631. As the retention of this legal right by the settlor, acting as a trustee "in conjunction" with the other trustees, Page 408 U. S. 136 came squarely within the language and intent of the predecessor of § 2036(a)(2), the taxpayer conceded that the original assets transferred into the trust were includable in the decedent's gross estate. Id. at 383 U. S. 632. The issue before the Court was whether the accumulated income, which had been added to the principal pursuant to the reservation of right in that respect, was also includable in decedent's estate for tax purposes. The Court held that it was.In our view, and for the purposes of this case, O'Malley adds nothing to the statute itself. The facts in that case were clearly within the ambit of what is now § 2036(a). That section requires that the settlor must have "retained for his life . . . (2) the right . . . to designate the persons who shall possess or enjoy the property or the income therefrom." O'Malley was covered precisely by the statute for two reasons: (1) there, the settlor had reserved a legal right, set forth in the trust instrument; and (2) this right expressly authorized the settlor, "in conjunction" with others, to accumulate income, and thereby "to designate" the persons to enjoy it.It must be conceded that Byrum reserved no such "right" in the trust instrument or otherwise. The term "right," certainly when used in a tax statute, must be given its normal and customary meaning. It connotes an ascertainable and legally enforceable power, such as that involved in O'Malley. [Footnote 9] Here, the right ascribed to Byrum was the power to use his majority position and influence over the corporate directors to "regulate the flow of dividends" to the trust. That "right" was Page 408 U. S. 137 neither ascertainable nor legally enforceable, and hence was not a right in any normal sense of that term. [Footnote 10]Byrum did retain the legal right to vote shares held by the trust and to veto investments and reinvestments. But the corporate trustee alone, not Byrum, had the right to pay out or withhold income, and thereby to designate who among the beneficiaries enjoyed such income. Whatever power Byrum may have possessed with respect to the flow of income into the trust was derived not from an enforceable legal right specified in the trust instrument, but from the fact that he could elect a majority of the directors of the three corporations. The power to elect the directors conferred no legal right to command them to pay or not to pay dividends. A majority shareholder has a fiduciary duty not to misuse his power by promoting his personal interests at the expense of corporate interests. [Footnote 11] Moreover, Page 408 U. S. 138 the directors also have a fiduciary duty to promote the interests of the corporation. [Footnote 12] However great Byrum's influence may have been with the corporate directors, their responsibilities were to all stockholders, and were enforceable according to legal standards entirely unrelated to the needs of the trust or to Byrum's desires with respect thereto.The Government seeks to equate the de facto position of a controlling stockholder with the legally enforceable "right" specified by the statute. Retention of corporate control (through the right to vote the shares) is said to be "tantamount to the power to accumulate income" in the trust which resulted in estate tax consequences in O'Malley. The Government goes on to assert that,"[t]hrough exercise of that retained power, [Byrum] could increase or decrease corporate dividends . . . and thereby shift or defer the beneficial enjoyment of trust income. [Footnote 13]"This approach seems to us Page 408 U. S. 139 not only to depart from the specific statutory language, [Footnote 14] but also to misconceive the realities of corporate life.There is no reason to suppose that the three corporations controlled by Byrum were other than typical small businesses. The customary vicissitudes of such enterprises -- bad years; product obsolescence; new competition; disastrous litigation; new, inhibiting Government regulations; even bankruptcy -- prevent any certainty or predictability as to earnings or dividends. There is no assurance that a small corporation will have a flow of net earnings or that income earned will in fact be available for dividends. Thus, Byrum's alleged de facto "power to Page 408 U. S. 140 control the flow of dividends" to the trust was subject to business and economic variables over which he had little or no control.Even where there are corporate earnings, the legal power to declare dividends is vested solely in the corporate board. In making decisions with respect to dividends, the board must consider a number of factors. It must balance the expectation of stockholders to reasonable dividends when earned against corporate needs for retention of earnings. The first responsibility of the board is to safeguard corporate financial viability for the long term. This means, among other things, the retention of sufficient earnings to assure adequate working capital, as well as resources for retirement of debt, for replacement and modernization of plant and equipment, and for growth and expansion. The nature of a corporation's business, as well as the policies and long-range plans of management, are also relevant to dividend payment decisions. [Footnote 15] Directors of a closely held, small corporation must bear in mind the relatively limited access of such an enterprise to capital markets. This may require a more conservative policy with respect to dividends than would be expected of an established corporation with securities listed on national exchanges. [Footnote 16] Page 408 U. S. 141Nor do small corporations have the flexibility or the opportunity available to national concerns in the utilization of retained earnings. When earnings are substantial, a decision not to pay dividends may result only in the accumulation of surplus, rather than growth through internal or external expansion. The accumulated earnings may result in the imposition of a penalty tax. [Footnote 17]These various economic considerations are ignored at the directors' peril. Although vested with broad discretion in determining whether, when, and what amount of dividends shall be paid, that discretion is subject to legal restraints. If, in obedience to the will of the majority stockholder, corporate directors disregard the interests of shareholders by accumulating earnings to an unreasonable extent, they are vulnerable to a derivative suit. [Footnote 18] They are similarly vulnerable if they make an unlawful payment of dividends in the absence of net earnings or available surplus, [Footnote 19] or if they fail to exercise Page 408 U. S. 142 the requisite degree of care in discharging their duty to act only in the best interest of the corporation and its stockholders.Byrum was similarly inhibited by a fiduciary duty from abusing his position as majority shareholder for personal or family advantage to the detriment of the corporation or other stockholders. There were a substantial number of minority stockholders in these corporations who were unrelated to Byrum. [Footnote 20] Had Byrum and the directors violated their duties, the minority shareholders would have had a cause of action under Ohio law. [Footnote 21] The Huntington National Bank, as trustee, was one of the minority stockholders, and it had both the right and the duty to hold Byrum responsible for any wrongful or negligent action as a controlling stockholder or as a director of the corporations. [Footnote 22] Although Byrum had reserved the right to remove the trustee, he would have been imprudent to do this when confronted by the Page 408 U. S. 143 trustee's complaint against his conduct. A successor trustee would succeed to the rights of the one removed.We conclude that Byrum did not have an unconstrained de facto power to regulate the flow of dividends to the trust, much less the "right" to designate who was to enjoy the income from trust property. His ability to affect, but not control, trust income was a qualitatively different power from that of the settlor in O'Malley, who had a specific and enforceable right to control the income paid to the beneficiaries. [Footnote 23] Even had Byrum managed to flood the trust with income, he had no way of compelling the trustee to pay it out, rather than accumulate it. Nor could he prevent the trustee from making payments from other trust assets, [Footnote 24] although admittedly there were few of these at the time of Byrum's death. We cannot assume, however, that no other assets would come into the trust from reinvestments or other gifts. [Footnote 25] Page 408 U. S. 144We find no merit to the Government's contention that Byrum's de facto "control," subject as it was to the economic and legal constraints set forth above, was tantamount to the right to designate the persons who shall enjoy trust income, specified by § 2036(a)(2). [Footnote 26] Page 408 U. S. 145IIThe Government asserts an alternative ground for including the shares transferred to the trust within Byrum's gross estate. It argues that, by retaining control, Byrum guaranteed himself continued employment and remuneration, as well as the right to determine whether and when the corporations would be liquidated or merged. Byrum is thus said to have retained "the . . . enjoyment of . . . the property," making it includable within his gross estate under § 2036(a)(1). The Government concedes that the retention of the voting rights of an "unimportant minority interest" would not require inclusion of the transferred shares under § 2036(a)(1). It argues, however,"where the cumulative effect of the retained powers and the rights flowing from the shares not placed in trust leaves the grantor in control of a close corporation, and assures that control for his lifetime, he has retained the 'enjoyment' of the transferred stock. [Footnote 27]"Brief for United States 23.It is well settled that the terms "enjoy" and "enjoyment," as used in various estate tax statutes, "are not terms of art, but connote substantial present economic benefit, rather than technical vesting of title or estates." Commissioner v. Estate of Holmes, 326 U. S. 480, 326 U. S. 486 Page 408 U. S. 146 (1946). [Footnote 28] For example, in Reinecke v. Northern Trust Co., 278 U. S. 339 (1929), in which the critical inquiry was whether the decedent had created a trust "intended . . . to take effect in possession or enjoyment at or after his death,'" [Footnote 29] id. at 278 U. S. 348, the Court held that reserved powers of management of trust assets, similar to Byrum's power over the three corporations, did not subject an inter vivos trust to the federal estate tax. In determining whether the settlor had retained the enjoyment of the transferred property, the Court said: "Nor did the reserved powers of management of the trusts save to decedent any control over the economic benefit or the enjoyment of the property. He would equally have reserved all these powers and others had he made himself the trustee, but the transfer would not, for that reason, have been incomplete. The shifting of the economic interest in the trust property which was the subject of the tax was thus complete as soon as the trust was made. His power to recall the property and of control over it for his own benefit then ceased, and, as the trust were not made in contemplation Page 408 U. S. 147 of death, the reserved powers do not serve to distinguish them from any other gift inter vivos not subject to the tax."278 U.S. at 278 U. S. 346-347.The cases cited by the Government reveal that the terms "possession" and "enjoyment," used in § 2036(a)(1), were used to deal with situations in which the owner of property divested himself of title but retained an income interest or, in the case of real property, the lifetime use of the property. Mr. Justice Black's opinion for the Court in Commissioner v. Estate of Church, 335 U. S. 632 (1949), traces the history of the concept. In none of the cases cited by the Government has a court held that a person has retained possession or enjoyment of the property if he has transferred title irrevocably, made complete delivery of the property and relinquished the right to income where the property is income-producing. [Footnote 30]The Government cites only one case, Estate of Holland v. Commissioner, 1 T.C. 564 (1943), [Footnote 31] in which a decedent had retained the right to vote transferred shares of stock and in which the stock was included Page 408 U. S. 148 within the decedent's gross estate. In that case, it was not the mere power to vote the stock, giving the decedent control of the corporation, which caused the Tax Court to include the shares. The court held that,"'on an inclusive view of the whole arrangement, this withholding of the income until decedent's death, coupled with the retention of the certificates under the pledge and the reservation of the right to vote the stock and to designate the company officers,'"subjects the stock to inclusion within the gross estate. Id. at 565. The settlor in Holland retained a considerably greater interest than Byrum retained, including an income interest. [Footnote 32]As the Government concedes, the mere retention of the "right to vote" shares does not constitute the type of "enjoyment" in the property itself contemplated by § 2036(a)(1). In addition to being against the weight of precedent, the Government's argument that Byrum retained "enjoyment" within the meaning of § 2036(a)(1) is conceptually unsound. This argument implies, as it must under the express language of § 2036(a), that Byrum "retained for his life . . . (1) the possession or enjoyment" of the "property" transferred to the trust or the "income" therefrom. The only property he transferred was corporate stock. He did not transfer "control" (in the sense used by the Government) as the trust never owned as much as 50% of the stock of any corporation. Byrum never divested himself of control, as he was able to vote a majority of the shares by virtue of what he owned and the right to vote those placed in Page 408 U. S. 149 the trust. Indeed, at the time of his death, he still owned a majority of the shares in the largest of the corporations, and probably would have exercised control of the other two by virtue of being a large stockholder in each. [Footnote 33] The statutory language plainly contemplates retention of an attribute of the property transferred -- such as a right to income, use of the property itself, or a power of appointment with respect either to income or principal. [Footnote 34]Even if Byrum had transferred a majority of the stock, but had retained voting control, he would not have retained "substantial present economic benefit," 326 U.S. at 326 U. S. 486. The Government points to the retention of two "benefits." The first of these, the power to liquidate or Page 408 U. S. 150 merge, is not a present benefit; rather, it is a speculative and contingent benefit which may or may not be realized. Nor is the probability of continued employment and compensation the substantial "enjoyment of . . . [the transferred] property" within the meaning of the statute. The dominant stockholder in a closely held corporation, if he is active and productive, is likely to hold a senior position and to enjoy the advantage of a significant voice in his own compensation. These are inevitable facts of the free enterprise system, but the influence and capability of a controlling stockholder to favor himself are not without constraints. Where there are minority stockholders, as in this case, directors may be held accountable if their employment, compensation, and retention of officers violate their duty to act reasonably in the best interest of the corporation and all of its stockholders. [Footnote 35] Moreover, this duty is policed, albeit indirectly, by the Internal Revenue Service, which disallows the deduction of unreasonable compensation paid to a corporate executive as a business expense. [Footnote 36] We conclude that Byrum's retention of voting control was not the retention of the enjoyment of the transferred property within the meaning of the statute. Page 408 U. S. 151For the reasons set forth above, we hold that this case was correctly decided by the Court of Appeals, and accordingly the judgment isAffirmed

U.S. Supreme CourtUnited State v. Byrum, 408 U.S. 125 (1972)United State v. ByrumNo. 71-308Argued March 1, 1972Decided June 26, 1972408 U.S. 125SyllabusDecedent transferred to an irrevocable trust for the benefit of his children (and if they died before the trust ended, their surviving children) stock in three unlisted corporations that he controlled, retaining the right to vote the transferred stock, to veto the transfer by the trustee (a bank) of any of the stock, and to remove the trustee and appoint another corporate trustee as successor. The right to vote the transferred stock, together with the vote of the stock decedent owned at the time of his death, gave him a majority vote in each of the corporations. The Commissioner of Internal Revenue determined that the transferred stock was includable in decedent's gross estate under § 2036(a) of the Internal Revenue Code of 1954, which requires the inclusion in a decedent's gross estate of the value of any property he has transferred by inter vivos gift, if he retained for his lifetime"(1) the . . . enjoyment of . . . the property transferred, or (2) the right, either alone or in conjunction with any person, to designate the persons who shall . . . enjoy . . . the income therefrom."The Commissioner claimed that decedent's right to vote the transferred shares and to veto any sale by the trustee, together with the ownership of other shares, made the transferred shares includable under § 2036(a)(2), because decedent retained control over corporate dividend policy and, by regulating the flow of income to the trust, could shift or defer the beneficial enjoyment of trust income between the present beneficiaries and remaindermen, and under § 2036(a)(1) because, by reason of decedent's retained control over the corporations, he had the right to continue to benefit economically from the transferred shares during his lifetime.Held: 1. Decedent did not retain the "right," within the meaning of § 2036(a)(2), to designate who was to enjoy the trust income. Pp. 408 U. S. 131-144.(a) A settlor's retention of broad management powers did not necessarily subject an inter vivos trust to the federal estate tax. Pp. 408 U. S. 131-135. Page 408 U. S. 126(b) In view of legal and business constraints applicable to the payment of dividends, especially where there are minority stockholders, decedent's right to vote a majority of the shares in these corporations did not give him a de facto position tantamount to the power to accumulate income in the trust. Pp. 408 U. S. 135-144.2. Decedent's voting control of the stock did not constitute retention of the enjoyment of the transferred stock within the meaning of § 2036(a)(1), since the decedent had transferred irrevocably the title to the stock and right to the income therefrom. Pp. 408 U. S. 145-150.440 F.2d 949, affirmed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and DOUGLAS, STEWART, MARSHALL, and REHNQUIST, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 408 U. S. 151.

1996_96-272

2. Although the Ninth Circuit adopted the correct legal standard, it erred in directing entry of a nominal award based on its own appraisal of the evidence, rather than remanding the case to the ALJ for further findings of fact. Since the ALJ is the factfinder under the Act, see §§ 21(b)(3), (c), it is the ALJ's duty, not the Court of Appeals's, to consider whether a future decline in Rambo's earning capacity is sufficiently likely to justify nominal compensation. The ALJ failed to do so. Pp. 138-141.81 F.3d 840, vacated and remanded.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, KENNEDY, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined, post, p. 141.Robert E. Babcock argued the cause and filed a brief for petitioner.Malcolm L. Stewart argued the cause for the federal respondent. With him on the brief were Acting Solicitor General Dellinger, Deputy Solicitor General Kneedler, J. Davitt McAteer, Allen H. Feldman, Nathaniel 1. Spiller, and Scott Glabman. Thomas J. Pierry III argued the cause for respondent Rambo. With him on the brief was ThomasJUSTICE SOUTER delivered the opinion of the Court.This case under the Longshore and Harbor Workers' Compensation Act is before us a second time, now raising the question whether the Act bars nominal compensation to a worker who is presently able to earn at least as much as before he was injured. We hold nominal compensation proper when there is a significant possibility that the worker's wage-earning capacity will fall below the level of his preinjury wages sometime in the future.*Briefs of amici curiae urging reversal were filed for the National Association of Waterfront Employers et al. by Charles T. Carroll, Jr., F. Edwin Froelich, and Franklin W Losey; and for the National Steel and Shipbuilding Co. by Alvin G. Kalmanson and Roy D. Axelrod.124IRespondent John Rambo injured his back and leg in 1980 while doing longshore work for petitioner Metropolitan Stevedore Company. Rambo claimed against Metropolitan for compensation under the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq., and the parties stipulated that Rambo had sustained a 22lf2% permanent partial disability, which would normally reflect a $120.24 decline in his preinjury $534.38 weekly wage. This, in turn, was reduced to an award of $80.16 per week under § 8(c)(21) of the Act, 33 U. S. C. § 908(c)(21), providing for compensation at the rate of 66%% of the difference between an employee's preinjury wages and postinjury wage-earning capacity. An Administrative Law Judge (ALJ) entered an order incorporating this stipulated award. App. 51; Metropolitan Stevedore Co. v. Rambo (Rambo I), 515 U. S. 291, 293 (1995).Rambo was later trained as a longshore crane operator and got full-time work with his new skills, with occasional stints as a heavy-truck operator to earn extra pay. His resulting annual earnings between 1985 and 1990 were about three times what he had made before his injury. As a consequence, Metropolitan moved in 1989 to modify Rambo's earlier disability award, see § 22, 33 U. S. C. § 922, and a hearing was held before an ALJ. While there was no evidence that Rambo's physical condition had improved, the ALJ ordered the disability payments discontinued based on the tripling of Rambo's preinjury earnings:"After taking into consideration the increase in wages due to the rate of inflation and any increase in salary for the particular job, it is evident that [Rambo] no longer has a wage-earning capacity loss. Although [Rambo] testified that he might lose his job at some future time, the evidence shows that [Rambo] would not be at any125greater risk of losing his job than anyone else. Moreover, no evidence has been offered to show that [Rambo's] age, education, and vocational training are such that he would be at greater risk of losing his present job or in seeking new employment in the event that he should be required to do so. Likewise, the evidence does not show that [Rambo's] employer is a beneficent one. On the contrary, the evidence shows that [Rambo] is not only able to work full time as a crane operator, but that he is able to work as a heavy lift truck operator when the time is available within which to do so." App.55.See also Rambo I, supra, at 293-294.The Benefits Review Board affirmed the modification order, App. 57, 61, but the Court of Appeals for the Ninth Circuit reversed on the ground that § 22 authorizes modification of an award only for changed physical conditions, Rambo v. Director, owep, 28 F.3d 86 (1994). We in turn reversed in Rambo I, holding that "[t]he fundamental purpose of the Act is to compensate employees (or their beneficiaries) for wage-earning capacity lost because of injury; where that wage-earning capacity has been reduced, restored, or improved, the basis for compensation changes and the statutory scheme allows for modification." 515 U. S., at 298. Since the essence of wage-earning capacity is economic, not physical, id., at 296-298, that capacity may be affected "even without any change in the employee's physical condition," id., at 30l.On remand, the Court of Appeals again reversed the order discontinuing compensation payments. It recognized that when a worker suffers a significant physical impairment without experiencing a present loss of earnings, there may be serious tension between the statutory mandate to account for future effects of disability in determining a claimant's wage-earning capacity (and thus entitlement to compensa-126tion), see § 8(h), 33 U. S. C. § 908(h), and the statutory prohibition against issuing any new order to pay benefits more than one year after compensation ends or an order is entered denying an award, see § 22, 33 U. S. C. § 922. The Court of Appeals reconciled the two provisions by reading the statute to authorize a present nominal award subject to later modification if conditions should change. Rambo v. Director, OWCp, 81 F.3d 840, 844 (1996). The court reversed the order ending Rambo's benefits as unsupported by substantial evidence, due to "overemphasi[s on] Rambo's current status and fail[ure] to consider the effect of Rambo's permanent partial disability on his future earnings," ibid., and it remanded for entry of a nominal award reflecting Rambo's permanent partial disability, id., at 845.1 We granted certiorari. 519 U. S. 1002 (1996). While we agree that nominal compensation may be awarded under certain circumstances despite the worker's present ability to earn more than his preinjury wage, we vacate the judgment of the Court of Appeals directing entry of such an award and remand for factfinding by the ALJ.IIThe LHWCA authorizes compensation not for physical injury as such, but for economic harm to the injured worker from decreased ability to earn wages. See Rambo I, supra, at 297-298. The Act speaks of this economic harm as "disability," defined as the "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment," § 2(10), 33 U. S. C. § 902(10). Such incapacity is conclusively presumed for certain enumerated or "scheduled" injuries, which are compensated at 66%% of the worker's preinjury wages over specified periods of time. See §§ 8(c)(1)-8(c)(20), 8(c)(22), 33 U. S. C. §§ 908(c)(1)-908(c)(20), 908(c)(22); Potomac Elec. Power Co. v. Director, Office of Workers' Compensation Pro-IJudge Reinhardt dissented in part on other grounds. 81 F. 3d, at 845.127grams, 449 U. S. 268, 269 (1980). For other, so-called "unscheduled" injuries resulting in less than total disability, the Act sets compensation at "66% per centum of the difference between the average weekly [preinjury] wages of the employee and the employee's wage-earning capacity thereafter." § 8(c)(21), 33 U. S. C. § 908(c)(21) (permanent partial disability); see also §8(e), 33 U. S. C. §908(e) (temporary partial disability). For figuring this difference, § 8(h) explains that the claimant's postinjury "wage-earning capacity" is to be determined"by his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity: Provided, however, That if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the deputy commissioner may, in the interest of justice, fix such wageearning capacity as shall be reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future." § 8(h), 33 U. S. C. § 908(h).See also § 10, 33 U. S. C. § 910 (method for determining preinjury wages). See generally Rambo I, 515 U. S., at 297-298.We may summarize these provisions and their implications this way. Disability is a measure of earning capacity lost as a result of work-related injury. By distinguishing between the diminished capacity and the injury itself, and by defining capacity in relation both to the injured worker's old job and to other employment, the statute makes it clear that disability is the product of injury and opportunities in the job market. Capacity, and thus disability, is not necessarily reflected in actual wages earned after injury, see id., at 300-301; Potomac Elec. Power, supra, at 272, n. 5, and when128it is not, the factfinder under the Act must make a determination of disability that is "reasonable" and "in the interest of justice," and one that takes account of the disability's future effects, § 8(h).In some cases a disparity between the worker's actual postinjury wages and his job-market capacity will be obvious, along with the reasons for it. If a disabled worker with some present capacity chooses not to work at all, or to work at less than his capacity, a windfall is avoided by determining present disability and awarding a benefit accordingly. See, e. g., Penrod Drilling Co. v. Johnson, 905 F.2d 84, 87-88 (CA5 1990). At the other extreme, a worker with some present disability may nonetheless be fortunate enough to receive not merely the market wages appropriate for his diminished capacity, but full preinjury wages (say, because an employer is generous, for whatever reason). See, e. g., Travelers Ins. Co. v. McLellan, 288 F.2d 250, 251 (CA2 1961); see also Edwards v. Director, OWCp, 999 F.2d 1374, 1375-1376 (CA9 1993) (holding that wages from short-lived employment do not represent actual earning capacity on open market). Once again, the present disability may still be calculated and a corresponding award made.A problem in applying the provisions applicable when there is a disparity between current wages and wageearning capacity arises in a case like this one, however. The worker now receives appropriate market wages as high or higher than those before his injury, thus experiencing no decline in present capacity. And yet (we assume for now) there is some particular likelihood that in the future the combination of injury and market conditions may leave him with a lower capacity. The question is whether such a person is presently disabled within the meaning of the statute, and if so, what provision should be made for the potential effects of disability in the future.There are two reasons to treat such a person as presently disabled under the statute. The first follows from the provi-129sion of law that on its face bars an injured worker from waiting for adverse economic effects to occur in the future before bringing his disability claim, which generally must be filed within a year of injury. § 13(a), 33 U. s. C. § 913(a); Pillsbury v. United Engineering Co., 342 U. S. 197 (1952). He is also barred from seeking a new, modified award after one year from the date of any denial or termination of benefits. § 22, 33 U. S. C. § 922. Because an injured worker who has a basis to anticipate wage loss in the future resulting from a combination of his injury and job-market opportunities must nonetheless claim promptly, it is likely that Congress intended "disability" to include the injury-related potential for future wage 10ss.2 And because a losing claimant loses for all time after one year from the denial or termination of benefits, it is equally likely that Congress intended such a claimant to obtain some award of benefits in anticipation of the future potential loss.2 A different conclusion might, perhaps, be drawn from our observation 46 years ago in Pillsbury, 342 U. S., at 198-199, that the agency allowed claims to be filed within one year of injury but before recovery for present disability could be had. If that practice were assumed to be authorized by the Act, an injured worker who anticipated future loss of earning capacity could file a claim within the I-year period permitted by § 13(a) yet defer litigation of the claim indefinitely until a capacity loss manifested itself, thereby undercutting our inference from the limitations provision that present disability must be conceived as including the potential for future decline in capacity. But it seems unlikely that when Congress enacted § 13(a) it intended workers to be able to file claims before they could establish all the elements entitling them to compensation. Moreover, while the practical effect of permitting protective filings and indefinitely deferring adjudication is in one respect the same as awarding nominal compensation when there is a significant possibility of future capacity loss, in that both approaches hold open the possibility of compensating a worker when the potential future economic effects of his injury actually appear, the former approach, unlike the latter, has the defect of putting off the adjudication of every element of the worker's claim, including such matters as the work-related nature of the injury, until long after the evidence grows stale. We therefore think that the inference we draw from the limitations provision is the better one.130This conclusion is confirmed by the provision of § 8(h) that in cases of disparity between actual wages and earning capacity, the natural effects of disability that will occur in the future must be given "due regard" as one of the "factors or circumstances in the case which may affect [a claimant's] capacity to earn wages in his disabled condition." Although this mandate is phrased in general terms, its practical effect is limited to the class of cases at issue here, where the worker is presently able to earn at least as much as before his injury. In all other cases, when injury depresses the claimant's wage-earning capacity under the conditions prevailing at the time of an award, so that the present effects of his disability are unquestionably compensable immediately, the Act already makes provision for the future effects of disability by means of § 22, which liberally permits modification of awards in response to changed conditions that occur within one year of the last payment of compensation (or a denial or termination of benefits). 33 U. S. C. § 922. Rambo I held that this provision allows modification whenever a changed combination of training and economic (let alone physical) circumstances reduces, restores, or improves wage-earning capacity. 515 U. S., at 296-297.3 Since ongoing awards may be modified if future possibilities become present realities, there is no need to account for such possibilities in calculating a worker's immediately compensable disability; the Act plainly takes a wait-and-see approach to future contingencies here.4 The first award in this case was3 As we noted in Rambo I, however, not every fluctuation in actual wages is a ground for modification, but only those shifts reflecting a change in the worker's underlying capacity, see 515 U. S., at 300-301, such as a change in physical condition, skill level, or the availability of suitable jobs. "There may be cases raising difficult questions as to what constitutes a change in wage-earning capacity, but we need not address them here." Ibid.4 In liberally permitting modification, the Act resembles virtually all other workers' compensation schemes. See 3 A. Larson & L. Larson, Law of Workmen's Compensation § 81.10, p. 15-1045 (1996). "[I]t is one of the131a standard illustration of the proper practice of basing capacity determinations and compensation awards on present reality. If Rambo's initial award had already been discounted to reflect the odds of his obtaining less strenuous but higher paying work in the future, Rambo I could hardly have held that the Act permitted reduction of that initial award again when Rambo actually received training as a crane operator and found work using his new skills. The first award simply reflected the degree of diminished capacity operative at the time it was made, and it was proper to revise it when conditions changed.Thus, if § 8(h)'s admonition to consider future effects when calculating capacity has any practical application, it must be because it may apply in a case such as this one, in which there is no present wage loss and would thus be no present award if compensation were to be based solely on present employment conditions. If the future were ignored and compensation altogether denied whenever present earning capacity had not (yet) declined, § 22 would bar modification in response to future changes in condition after one year.main advantages of the reopening device [in workers' compensation schemes] that it permits a commission to make the best estimate of disability it can at the time of the original award, although at that moment it may be impossible to predict the extent of future disability, without having to worry about being forever bound by the first appraisal." Id., § 81.31(a), at 15-1127 to 15-1132 (footnotes omitted).The need for finality in workers' compensation awards is further reduced because compensation is paid periodically over the life of the disability, rather than in a lump sum, see §§ 14(a), (b), 33 U. S. C. §§ 914(a), (b) (providing for periodic payment of compensation). Thus, modifying a worker's compensation award generally affects future payments only, rather than retroactively adjusting a prior lump-sum payment. "Under the typical award in the form of periodic payments ... , the objectives of [workers' compensation] legislation are best accomplished if the commission can increase, decrease, revive, or terminate payments to correspond to a claimant's changed condition," subject, under most such laws, to certain time limitations. 3 Larson, Law of Workmen's Compensation §81.10, at 15-1045; id., §81.21, at 15-1046 to 15-1047.132To implement the mandate of § 8(h) in this class of cases, then, "disability" must be read broadly enough to cover loss of capacity not just as a product of the worker's injury and present market conditions, but as a potential product of injury and market opportunities in the future. There must, in other words, be a cognizable category of disability that is potentially substantial, but presently nominal in character.There being, then, a need to account for potential future effects in a present determination of wage-earning capacity (and thus disability) when capacity does not immediately decline, the question is which of two basic methods to choose to do this. The first would be to make a one-time calculation of a periodic benefit following the approach of the common law of torts, which bases lump-sum awards for loss of future earnings on an estimate of "the difference ... between the value of the plaintiff's services as they will be in view of the harm and as they would have been had there been no harm." Restatement (Second) of Torts § 924, Comment d, p. 525 (1977). This predictive approach ordinarily requires consideration of every possible variable that could have an impact on ability to earn, including "[e]nvironmental factors such as the condition of the labor market, the chance of advancement or of being laid off, and the like." 4 F. Harper, F. James, & O. Gray, Law of Torts § 25.8, pp. 550-551 (2d ed. 1986) (footnote omitted). Prediction of future employment may well be the most troublesome step in this wide-ranging enquiry. As the tripling of Rambo's own earnings shows, a claimant's future ability to earn wages will vary as greatly as opportunity varies, and any estimate of wage-earning potential turns in part on the probabilities over time that suitable jobs within certain ranges of pay will actually be open. In these calculations, there is room for error.5 Cf. id., § 25.8, at 5535 As a simplified example of the sort of calculation that would be required under this approach, a factfinder might decide in the present case that Rambo has a 75% chance of keeping work as a crane operator with133(to determine lost wage-earning capacity, juries must often "use their judgment (in effect, ... speculate)"). That juries in tort cases must routinely engage in such difficult predictions (compounded further by discounting for present value) is the price paid by the common-law approach for the finality of a one-time lump-sum judgment.The second possible way to account for future developments would be to do in this situation just what the Act already does through the modification provision in the run of cases: to wait and see, that is, to base calculation of diminished wage-earning capacity, and thus compensation, on current realities and to permit modifications reflecting the actual effects of an employee's disability as manifested over time. This way, finality is exchanged for accuracy, both in compensating a worker for the actual economic effects of his injury, and in charging the employer and his insurer for that amount alone.Metropolitan denies that the second, wait-and-see alternative is even open, arguing that § 8(h) gives the factfinder only two choices: either deny compensation altogether because a claimant's actual wages have not diminished, or, if the ALJ concludes that the worker's current income does not fairly represent his present wage-earning capacity, calculate theannual earnings of $60,000, and a 25% chance of being laid off from that job and remaining unemployed with no income because his injuries would prevent him from performing more strenuous work, for a weighted average future wage-earning capacity of $45,000. (($60,000 x .75) + ($0 x .25) = $45,000.) Of course, even if the factfinder somehow got the probabilities and earnings for each possible future state right, the weighted average future capacity would rarely correspond to actual developments. In our hypothetical, Rambo's actual future capacity would be $15,000 a year more than his predicted capacity if he kept his job as a crane operator, and $45,000 less if he lost that job and found no other. Thus, if a compensation award were based on the weighted average, Rambo would necessarily end up either overcompensated or undercompensated, even though the Act might meet its objectives for the system as a whole.134extent of the worker's disability (and his consequent entitlement to compensation) in toto based on all relevant factors, including the future effects of the disability. See Brief for Petitioner 9. What we have already said, however, shows the unsoundness of Metropolitan's two options.The practical effect of denying any compensation to a disabled claimant on the ground that he is presently able to earn as much as (or more than) before his injury would run afoul of the Act's mandate to account for the future effects of disability in fashioning an award, since those effects would not be reflected in the current award and the i-year statute of limitations for modification after denial of compensation would foreclose responding to such effects on a wait-andsee basis as they might arise.6 On the other hand, trying to honor that mandate by basing a present award on a comprehensive prediction of an inherently uncertain future would, as we have seen, almost always result in present overcompensation or undercompensation. And it would be passing strange to credit Congress with the intent to guarantee fairness to employers and employees by a wait-and-see approach in most cases where future effects are imperfectly foreseeable, but to find no such intent in one class of cases, those in which wage-earning ability does not immediately decline.76 The one possible escape from this conclusion rests on an implausible reading of the Act. A claimant could, arguably, preserve a right to compensation in the future by reapplying within the I-year period and successively each year thereafter. See § 22, 33 U. S. C. § 922 (permitting modification "at any time prior to one year after the rejection of a claim"). But this would be a strange way to administer the Act, for its very premise is that a claimant would repeatedly file reapplications knowing his disability to be without present effect and (on Metropolitan's theory) himself without any good-faith claim to the present compensation sought.7 The legislative history to the 1938 amendments to the Act, which added § 8(h), indicates that Congress understood that the reference to future effects in the new subsection would interact with § 22 by allowing compensation for permanent partial disability for employees whose job opportunities are narrowed by injury but whose wages have not declined:135There is moreover an even more fundamental objection to Metropolitan's proposed options. They implicitly reject the very conclusion required to make sense of the combined provisions limiting claims and mandating consideration of future effects: that a disability whose substantial effects are only potential is nonetheless a present disability, albeit a presently nominal one. It is, indeed, this realization that points toward a way to employ the wait-and-see approach to provide for the future effects of disability when capacity does not immediately decline. It is simply "reasonable" and "in the interest of justice" (to use the language of §8(h)) to reflect merely nominal current disability with a correspondingly nominal award. Ordering nominal compensation holds open the possibility of a modified award if a future conjunction of injury, training, and employment opportunity should later depress the worker's ability to earn wages below the preinjury level, turning the potential disability into an actual one. It allows full scope to the mandate to consider the future effects of disability, it promotes accuracy, it preserves administrative simplicity by obviating cumbersome enquiries relating to the entire range of possible future states of affairs,s and it avoids imputing to Congress the unlikely intent"[Section 8(h)] provides for consideration of the effects of an injury ... upon the employee's future ability to earn .... Often an employee returns to work earning for the time being the same wages as he earned prior to injury, although still in a disabled condition and with his opportunity to secure gainful employment definitely limited .... It is clear that in such a case the employee's ability to compete in the labor market has been definitely affected; and, though at present the employee is paid his former full-time earnings, he suffers permanent partial disability which should be compensable under the ... Act .... "In a case such as that ... , an unscrupulous employer might with profit to himself continue the original wages ... until the ... right of review of the case (sec. 22) had run, ... thus defeat[ing] the beneficent provisions of the ... Act." H. R. Rep. No. 1945, 75th Cong., 3d Sess., 5-6 (1938); S. Rep. No. 1988, 75th Cong., 3d Sess., 1 (1938).8See Walters v. Metropolitan Ed. Enterprises, Inc., 519 U. S. 202, 208, 210-211 (1997) (weighing administrative simplicity in favor of permissible construction of statute).136to join a wait-and-see rule for most cases with a predict-thefuture method when the disability results in no current decline in what the worker can earn.Our view, as it turns out, coincides on this point with the position taken by the Director of the Office of Workers' Compensation Programs (OWCP), who is charged with the administration of the Act, and who also construes the Act as permitting nominal compensation as a mechanism for taking future effects of disability into account when present wageearning ability remains undiminished. See Brief for Director, Office of Workers' Compensation Programs 12-21, 24-31. The Secretary of Labor has delegated the bulk of her statutory authority to administer and enforce the Act, including rulemaking power, to the Director, see Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U. S. 122, 125-126 (1995); Ingalls Shipbuilding, Inc. v. Director, Office of Workers' Compensation Programs, 519 U. S. 248, 262-263 (1997), and the Director's reasonable interpretation of the Act brings at least some added persuasive force to our conclusion, see, e. g., Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944) (giving weight to agency's persuasive interpretation, even when agency lacks "power to control"); Robinson v. Shell Oil Co., 519 U. S. 337, 345-346 (1997).There is, of course, the question of how high the potential for disability need be to be recognized as nominal, but that is an issue not addressed by the parties, and it would be imprudent of us to address it now with any pretense of settling it for all time. Here it is enough to recall that in those cases where an injury immediately depresses ability to earn wages under present conditions, the payment of actual compensation holds open the option of modification under § 22 even for future changes in condition whose probability of occurrence may well be remote at the time of the original award. Consistent application of the Act's wait-and-see approach thus suggests that nominal compensation permitting137future modification should not be limited to instances where a decline in capacity can be shown to a high degree of statistical likelihood. Those courts to have dealt with the matter explicitly have required a showing that there is a significant possibility that a worker's wage-earning capacity will at some future point fall below his preinjury wages, see Hole v. Miami Shipyards Corp., 640 F.2d 769, 772 (CA5 1981); Randall v. Comfort Control, Inc., 725 F.2d 791, 800 (CADC 1984), and, in the absence of rulemaking by the agency specifying how substantial the possibility of future decline in capacity must be to justify a nominal award, we adopt this standard.99 The OWCP Director argues that when the employee has the burden of persuasion, the Administrative Procedure Act's (APA's) preponderance of the evidence standard (see infra, at 139) requires him to show that an injury-related future decline in wages is more likely than not to occur. Brief for Director, Office of Workers' Compensation Programs 22-23. The Director's position confuses the degree of certainty needed to find a fact or element under the preponderance standard with the fact or element to be so established, which in this case is the statistical odds that wageearning capacity will decline in the future. "The burden of showing something by a preponderance of the evidence ... simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact's existence." Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 622 (1993) (internal quotation marks omitted). In other words, the preponderance standard goes to how convincing the evidence in favor of a fact must be in comparison with the evidence against it before that fact may be found, but does not determine what facts must be proven as a substantive part of a claim or defense. See Greenwich Collieries v. Director, OWCp, 990 F.2d 730, 736 (CA3 1993) ("A preponderance of the evidence is ... [e]vidence which is ... more convincing than the evidence ... offered in opposition to it ... " (internal quotation marks omitted)), aff'd, 512 U. S. 267 (1994). Unlike other standards of proof such as reasonable doubt or clear and convincing evidence, the preponderance standard "allows both parties to share the risk of error in roughly equal fashion," Herman & MacLean v. Huddleston, 459 U. S. 375, 390 (1983) (internal quotation marks omitted), except that "when the evidence is evenly balanced, the [party with the burden of persuasion] must lose," Director, Of-138We therefore hold that a worker is entitled to nominal compensation when his work-related injury has not diminished his present wage-earning capacity under current circumstances, but there is a significant potential that the injury will cause diminished capacity under future conditions.IIIThe application of this legal standard to the case before us depends in part on how the burden of persuasion is allocated. Section 7(c) of the APA, 5 U. S. C. §556(d), which applies to adjudications under the Act, see Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U. S. 267, 270 (1994), places the burden of persuasion on the proponent of an order, id., at 272-281; when the evidence is evenlyfice of Workers' Compensation Programs v. Greenwich Collieries, 512 U. S. 267, 281 (1994). Thus, under the preponderance standard, proof that a future decline in capacity is more likely than not (in the sense that the evidence predicting such a decline is more convincing than the evidence predicting none) would be required only if the fact of such a decline, rather than some degree of probability of its occurrence, were a substantive element of a claim for nominal compensation, which the Director does not maintain.Even assuming that the Director's formally promulgated construction of the LHWCA would be entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), see Director, Office of Workers' Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U. S. 122, 134 (1995), we do not defer to the Director's interpretation here of the APA's provision for allocating the burden of persuasion under the preponderance of the evidence standard, for three reasons. (1) The APA is not a statute that the Director is charged with administering. Cf. Ardestani v. INS, 502 U. S. 129, 148 (1991) (Blackmun, J., dissenting); Chevron, supra, at 842; Professional Reactor Operator Soc. v. NRC, 939 F.2d 1047, 1051 (CADC 1991). (2) This interpretation does not appear to be embodied in any regulation or similar binding policy pronouncement to which such deference would apply. See Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 740-741 (1996); 1 K. Davis & R. Pierce, Administrative Law Treatise § 3.5, p. 120 (3d ed. 1994). (3) The interpretation is couched in a logical non sequitur, as just explained.139balanced, the proponent loses, see id., at 281. On the initial claim for nominal compensation under the Act, then, the employee has the burden of showing by a preponderance of the evidence that he has been injured and that the odds are significant that his wage-earning capacity will fall below his preinjury wages at some point in the future. But when an employer seeks modification of previously awarded compensation, the employer is the proponent of the order with the burden of establishing a change in conditions justifying modification. In a case like this, where the prior award was based on a finding of economic harm resulting from an actual decline in wage-earning capacity at the time the award was entered, the employer satisfies this burden by showing that as a result of a change in capacity the employee's wages have risen to a level at or above his preinjury earnings. Once the employer makes this showing, § 8(h) gives rise to the presumption that the employee's wage-earning capacity is equal to his current, higher wage and, in the face of this presumption, the burden shifts back to the claimant to show that the likelihood of a future decline in capacity is sufficient for an award of nominal compensation. We emphasize that the probability of a future decline is a matter of proof; it is not to be assumed pro forma as an administrative convenience in the run of cases.In this case, the first award of compensation was based on the parties' stipulation that Rambo suffered 22112% permanent partial disability as a result of his injury, whereby Rambo established that the injury impaired his ability to undertake at least some types of previously available gainful labor and thus prevented him from earning as much as he had before his accident. Metropolitan sought termination of the award based solely on evidence, which the ALJ found persuasive, that Rambo is now able to earn market wages as a crane operator significantly greater than his preinjury earnings. There is therefore substantial evidence in the record supporting the ALJ's decision to terminate actual (as140opposed to nominal) benefits, since under present conditions Rambo's capacity to earn wages is no longer depressed. But the ALJ failed to consider whether there is a significant possibility that Rambo's wage-earning capacity will decline again in the future.1o Because there is no evidence in the record of the modification proceedings showing that Rambo's physical condition has improved to the point of full recovery, the parties' earlier stipulation of permanent partial disability at least raises the possibility that Rambo's ability to earn will decline in the event he loses his current employment as a crane operator. The ALJ's order altogether terminating benefits must therefore be vacated for failure to consider whether a future decline in Rambo's earning capacity is sufficiently likely to justify nominal compensation. Since the ALJ is the factfinder under the Act, see §§ 21(b)(3), (c), 33 U. S. C. §§ 921(b)(3), (c), however, the Court of Appeals should have remanded to the agency for further findings of fact, see, e. g., Randall v. Comfort Control, Inc., 725 F. 2d, at 799-800 (remanding for consideration of nominal award), instead of directing entry of a nominal award based on its own appraisal of the evidence. We therefore vacate the Ninth Circuit's judgment insofar as it directs entry of an10 The dissent argues that the ALJ expressly found that Rambo's present wages adequately reflect his future prospects. Post, at 148-150. In our view, however, the language in the modification order relied on by the dissent addresses whether Rambo's current wages accurately reflect his earning capacity under present market conditions, see supra, at 128 (current wages do not always reflect current capacity); Edwards v. Director, owep, 999 F.2d 1374, 1375 (CA9 1993) (adopting OWCP Director's position that "earnings in post-injury employment must be sufficiently regular to establish true earning capacity"), not the distinct question whether there is a significant chance that his ability to earn will again decline in the future. See App. 53 (ALJ characterized his task as "consider[ing] wage-earning capacity in an open labor market under normal employment conditions"). The ALJ's failure to consider the latter question is not surprising, since prior to this case there was no governing authority from this Court or the Ninth Circuit approving nominal awards for possible future declines.141award of nominal compensation, and remand the case for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1996SyllabusMETROPOLITAN STEVEDORE CO. v. RAMBO ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 96-272. Argued March 17, 1997-Decided June 19, 1997Respondent Rambo, injured while doing longshore work for petitioner Metropolitan Stevedore Company, received a compensation award under the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), based on the parties' stipulation that he had sustained permanent partial disability. After Rambo acquired new skills as a longshorecrane operator and began making about three times his preinjury earnings, Metropolitan moved to modify his LHWCA award. Despite an absence of evidence that Rambo's physical condition had improved, the Administrative Law Judge (ALJ) ordered his benefits discontinued because of his increased earnings. The Benefits Review Board affirmed, but the Ninth Circuit reversed on the ground that LHWCA § 22 authorizes modification of an award only for changed physical conditions. This Court in turn reversed in Metropolitan Stevedore Co. v. Rambo, 515 U. S. 291, holding that the Act's fundamental purpose is economic, to compensate employees for wage-earning capacity lost because of injury; where that capacity has been reduced, restored, or improved, the basis for compensation changes and the statutory scheme allows for modification, id., at 296-298, even without any change in physical condition, id., at 301. On remand, the Ninth Circuit again reversed the order discontinuing compensation. It recognized that when a worker suffers a significant physical impairment without experiencing a present loss of earnings, there may be serious tension between § 8(h)'s mandate to account for disability's future effects in determining wage-earning capacity (and thus entitlement to compensation), and § 22's prohibition against issuing any new order to pay benefits more than one year after compensation ends or an award denial is entered. The court reconciled the two provisions by reading the Act to authorize a present nominal award subject to later modification if conditions should change. It held that the order discontinuing benefits was based on the ALJ's overemphasis on Rambo's current status and failure to consider his permanent partial disability's effect on his future earnings, and remanded the case for entry of a nominal award.Held:1. A worker is entitled to nominal compensation under the LHWCA when his work-related injury has not diminished his present wage-122earning capacity under current circumstances, but there is a significant potential that the injury will cause diminished capacity under future conditions. The Act refers to compensable economic harm as "disability," defining that term as the measure of earning capacity lost as a result of work-related injury, § 2(10). Section 8(c)(21) sets compensation for permanent partial disability due to unscheduled injuries at a percentage of the difference between the worker's average weekly preinjury wages and his wage-earning capacity thereafter, while § 8(h) explains that such capacity is to be determined by the worker's actual earnings if they fairly and reasonably represent that capacity; if not, the factfinder may, "in the interest of justice," fix such capacity as shall be "reasonable," having due regard for, inter alia, "the effect of disability as it may naturally extend into the future." A problem in applying these provisions arises in the situation here at issue, where a worker presently earning at least as much as before his injury, but having a basis to anticipate that a future combination of the injury and jobmarket conditions will leave him with a lower earning capacity, must nevertheless file his disability claim within a year of the injury under § 13(a). If the worker is awarded no compensation, § 22 will bar him from seeking a modification in response to future changes in condition after one year. To implement § 8(h)'s mandate in this class of cases, "disability" must be read broadly enough to cover loss of capacity not just as a product of the worker's injury and present job market conditions, but as a potential product of injury and market opportunities in the future. Thus, a potential disability is treated as a present disability, albeit a presently nominal one. It is "reasonable" and "in the interest of justice" (to use § 8(h)'s language) to reflect merely nominal current disability with a correspondingly nominal award. Ordering nominal compensation holds open the possibility of a modification upward under § 22 if in the future circumstances so warrant. This approach is consistent with the wait-and-see approach the Act adopts generally with respect to benefits modification questions, and is the best way to reconcile § 8(h)'s mandate to consider future effects with the requirements of §§ 13(a) and 22. The Court's view on this point coincides with, and is reinforced by, the position of the Director of the Office of Workers' Compensation Programs (OWCP), who is charged with administering the Act. It would be imprudent for the Court to attempt to resolve for all time the question of how high the potential for disability need be to be recognized as nominal, since that issue was not addressed by the parties. Those lower courts to have dealt with the matter have required a showing of a significant possibility of a future decline in wage-earning capacity, and, in the absence of rulemaking by the OWCP on the point, the Court adopts that standard. Pp. 126-138.123Full Text of Opinion

1958_27

MR. JUSTICE BRENNAN delivered the opinion of the Court.Commercially grown Florida and Texas oranges have for many years been colored with a red coal tar color. In 1939, Page 358 U. S. 155 the Food and Drug Administration, after testing and pursuant to § 406(b) of the Federal Food, Drug, and Cosmetic Act, [Footnote 1] certified this color, FD&C Red No. 32 (hereafter Red 32), to be harmless and suitable for use in food. However, the Secretary of Health, Education, and Welfare, on November 10, 1955, ordered Red 32 and two other coal tar colors to be removed from the certified list, after new tests in 1951-1953 cast doubt whether Red 32 was harmless, and after public hearings were held upon the matter on notice published in the Federal Register. The consequence of the Secretary's order was that, under § 402(c) of the Act, [Footnote 2] any food bearing or containing such colors would be deemed to be adulterated.The validity of the Secretary's order was attacked in petitions under § 701(f) of the Act [Footnote 3] filed in several Page 358 U. S. 156 Courts of Appeals [Footnote 4] by persons and organizations claiming to be adversely affected. The Court of Appeals for the Second Circuit sustained the order against a general attack. Certified Color Industry Committee v. Secretary of Health, Education and Welfare, 236 F.2d 866. In the instant case, [Footnote 5] however, the Court of Appeals for the Fifth Circuit, by a divided vote, set aside the order [Footnote 6] insofar as Page 358 U. S. 157 it removed the certification of Red 32 as harmless and suitable for use as external coloring on Florida and Texas oranges. 246 F.2d 850.The Secretary did not determine that Red 32, in the quantities used in color-added oranges, was harmful for human consumption, but, rather, determined, on the basis of the 1951-1953 tests, only that Red 32 and the other suspect coal tar colors were toxic, and therefore not "harmless and suitable for use in food." The Court of Appeals held that the 1939 finding that Red 32 was harmless "should not be supplanted" by a contrary finding"unless there is evidence that, in the amounts used, and in the manner of use, oranges colored with Red 32 are unsafe for human consumption."246 F.2d at 861-862. The word "harmless" was construed to be a term "of relation," preventing the Secretary from denying the continued use of Red 32 in the quantities used in color-added oranges in the absence of evidence that such quantities could not be consumed "without risk of injury or harm." Id. at 858. The Court of Appeals held further that, in light of its premise that "harmless" was a term of relation, and because two congressional Committees had found that the practice of adding the color to oranges was an economic necessity, it would be incumbent upon the Secretary to determine whether the use of the color was "required in the production" of food within the meaning of § 406(a), [Footnote 7] Page 358 U. S. 158 and, if so, promulgate a safe tolerance for Red 32 on oranges pursuant to that section. Until such a tolerance was promulgated, the court held that the Secretary was required to certify Red 32 as a safe color for use on oranges without one. Id. at 860-862. We granted certiorari to determine this controversial question of construction of this important statute designed for the protection of the public health. Folsom v. Florida Citrus Exchange, 356 U.S. 911.Senate and House Committees have reported that the practice of adding color is an economic necessity in the production of Florida and Texas oranges for market. [Footnote 8] When mature oranges are removed from the tree, their skins, for botanical reasons unnecessary to detail here, are frequently green in color. Since the consumer would be prone incorrectly to interpret this greenness as a sign of immaturity, oranges are put through a "degreening" process which involves exposure to ethylene gas. In the case of certain California oranges, this gas process is sufficient to turn a green orange into one of the desired orange color. But the degreening process does not produce the desired color in Florida and Texas oranges; a light yellow shade results. The more desired color is therefore produced by immersing the oranges in, or spraying them with, a solution containing Red 32. The evidence at the hearings held by the Secretary was that the process infuses Page 358 U. S. 159 the peel of an orange with 0.0017% to 0.0034% of Red 32. Other evidence indicated that oranges taken as a whole, and candied peel, marmalade, and orange juice, would contain less -- in many cases, much less -- of the coal tar color. It is conceded by the Secretary that there is no evidence that the level of ingestion of Red 32 involved in human consumption of color-added oranges is harmful.However, the evidence at the Secretary's hearing did indicate that Red 32 had a poisonous effect on animals. Feeding the color to rats in quantities as small as 0.1% of their diet was deleterious and often fatal, with liver damage and enlargement of the heart in evidence. In larger quantities, 1.0% and 2.0% of the diet, ingestion of Red 32 by rats caused death within twelve days and a week, respectively. The health of dogs taking 0.2% of the color in their diets deteriorated rapidly; that of those taking 0.04% somewhat more slowly, but definitely; and ill effects were indicated at a feeding level as low as 0.01% of the diet. No safe level of administration of Red 32 to the test animals was established. These and similar tests, involving the administration of Red 32 and the other coal tar colors involved to test animals generally as an item of diet, were the basis on which the Secretary's order rested.The Secretary argues that the legislative history and the consistent administrative interpretation of the Act establish that his authority to list or continue the listing of coal tar colors is confined to his authority under § 406(b) to certify "harmless" coal tar colors, those which are wholly innocuous and demonstrated to be without adverse physiological effect. The argument runs that a toxic coal tar color, such as the Court of Appeals agreed that Red 32 was, was to be prohibited completely without regard to whether it might possibly be used in safe amounts on a particular food product. The Secretary argues further that, since Congress made known its will Page 358 U. S. 160 specifically and precisely in § 406(b) that a toxic coal tar color, that is, one not "harmless," was not to be certified under any circumstances, the tolerance provisions of § 406(a) have no relevance to the validity of his order.We are of the opinion that the Court of Appeals erred, and that its judgment cannot stand.First. The provisions of §§ 402(c) and 406(b) dealing expressly with coal tar colors were innovations in the Federal Food, Drug, and Cosmetic Act of 1938; there were no counterpart provisions in the original 1906 food and drug legislation. By these provisions, Congress carefully distinguished the treatment to be given by the Secretary to toxic coal tar colors. The original Act dealt generally with poisonous and other deleterious substances in food, as are now treated under § 402(a), but it did not deal specifically with coal tar colors. Section 7 of the original Food and Drugs Act, 34 Stat. 769, provided that an article of food should be deemed adulterated "If it contain any added poisonous or other added deleterious ingredient which may render such article injurious to health. . . ." This Court held, in United States v. Lexington Mill & Elevator Co., 232 U. S. 399, following the "plain meaning" of the statutory language, that this placed the burden upon the Government of establishing that the added substance was such as might render the food to which it was added injurious to health. This rule applied without distinction where coal tar colors were involved. Congress was aware of the difficulties of this test which required that the questioned food product be evaluated as a whole, and of the existence in this area of an informal certification practice under the 1906 Act, under which not food products, but the coal tar colors themselves, were subjected to test to determine their poisonous or harmful character. Cf. S.Rep. No. 361, 74th Cong., 1st Sess., pp. 7-8. Of course, when litigation occurred, the Lexington Mill standard was applied. Page 358 U. S. 161 See W.B. Wood Manufacturing Co. v. United States, 286 F. 84, 86-87.It was against this background that the 1938 statute was proposed and enacted. It is obvious to us that an approach different from the rule in Lexington Mill was intended by Congress when, in § 402(c) [Footnote 9] and § 406(b), it addressed itself to the severable and narrow problem of coal tar colors. The language involved in Lexington Mill survived generally in the Act's broadest and most general test of food adulteration, § 402(a)(1). [Footnote 10] Section 402(c) provided a separate test: that a food should be deemed adulterated"If it bears or contains a coal tar color other than one from a batch that has been certified in accordance with regulations as provided by section 406. . . ."Plainly, Congress banned any addition to foods of coal tar colors not certified by the Secretary. The standard established for the Secretary was set forth in § 406(b):"The Secretary shall promulgate regulations providing for the listing of coal tar colors which are harmless and suitable for use in food and for the certification of batches of such colors. . . ."There appears in Senator Page 358 U. S. 162 Copeland's memorandum on the first of the bills which led to the 1938 Act, S. 1944, 73d Cong., 1st Sess., which contained new provisions on coal tar colors similar to the ones in the Act as finally passed, a clear indication that one of the purposes of these provisions was to do away, in this area, with the Lexington Mill approach. 77 Cong.Rec. 5721. This had the effect of making the certification system, in which analysis concentrated on the color substances themselves, rather than an examination of the effect of the use of the colors in the context of the food products involved, the conclusive test of adulteration. Thus it is that the test of certification laid down in § 406(b) concentrates on the color substance itself; it is to be listed only if it is harmless. The Secretary is to address himself to the harmless character of the substance first; once this is assured, the statutory plan is that it may be freely used in foods, subject to the provisions of the other sections of the Act. Clearly such a plan is a rational one to ascribe to Congress. It is true that the ultimate purpose here concerned of the adulteration provisions of the Act is to protect health, and that no one makes the color substances by themselves an item of diet. But it certainly was competent for Congress, in the light of what were recognized problems to health in the use of such added colors, to adopt a rule of caution in treating this recognized and definable problem area. This rule of caution is here one which relieves the Secretary from the burden of showing in each case that a food containing them raises a possibility of injury to health, and requires that the color stuffs, whose positive values are only visual and which are not naturally found in foods, not be added unless they could pass a higher standard.The significance of such an approach is demonstrated here. No safe level for ingestion of Red 32 has been established, either in respect of humans or of animals. No one contends that it is impossible that ill effects will be experienced Page 358 U. S. 163 in human beings if unrestricted use of the substance is permitted in articles of food. On the other hand, no instance of a harmful use of Red 32 in a particular food was established in the record. [Footnote 11] These questions present broad inquiries, difficult of proof, and doubtless apt to be more long drawn out in investigation than even the ones which the Secretary pursued. Yet it has been shown that the color, of itself, has poisonous properties. In the light of the overall purpose of the Act, cf. United States v. Dotterweich, 320 U. S. 277, 320 U. S. 280, and the specific terms here involved, it seems to us that Congress did not intend that a verdict of "not proven" on the questions mentioned should preclude the Government from preventing the use of substances like the one in question when they were shown to have poisonous effects by themselves.We are not persuaded by the respondents' argument, adopted by the Court of Appeals, that the words "harmless" and "poisonous" are relative words, referring not to the effect of a substance in vacuo, but to its effect taken in a particular way and in particular quantities, on an organic system. Of course this is so, but the question before us certainly does not depend on it. This is not a case like the examples put which remind us that pure water would be deleterious if taken at the rate of four gallons an hour or common table salt at several ounces. The color substances appear to have been administered at Page 358 U. S. 164 toxicologically significant levels; they played a relatively small part in the diets of the test animals, generally less, and frequently much less, than 1%. [Footnote 12] Obviously, if the color substances themselves are made an item of diet in the trifling percentages used on the test animals, their effect is poisonous. [Footnote 13] Congress may have intended "harmless" in a relative sense, but we think it was in relation to such laboratory tests as the ones the Secretary performed that Congress was speaking when it required that coal tar colors be "harmless." We do not believe that Congress required the Secretary first to attempt to analyze the uses being made of the colors in the market place, and then feed them experimentally only in the proportions in which they appeared in certain of the food products in which the colors were used. This appears to be the very procedure on which Congress turned its back in the 1938 Act.The respondents contend that, since the Secretary himself maintains various lists of certified colors, one containing colors harmless and suitable for all food, drug and cosmetic uses, another of colors harmless and suitable for general use in drugs and cosmetics, and a third of colors harmless and suitable for external use in drugs and cosmetics, 21 CFR §§ 9.3, 9.4, 9.5, he has recognized that "harmless," as used in the statute, does not bear the "absolute" meaning he is alleged to give it. From this, it is said to follow that the Secretary must, in forbidding the use of colors in foods, restrict his prohibition to specific food uses in which the color is shown to be capable of a deleterious Page 358 U. S. 165 effect. We do not draw this inference. Provisions similar to those dealing with the use of coal tar colors in foods are repeated in the portions of the Act dealing with drugs and with cosmetics. Section 501(a)(4), 52 Stat. 1049, 21 U.S.C. § 351(a)(4), proscribes the use of uncertified colors in drugs for the purpose of coloring, and refers to § 504, 52 Stat. 1052, 21 U.S.C. § 354, which authorizes the listing and certification of coal tar colors which are "harmless and suitable for use in drugs." Comparable provisions are found with respect to cosmetics in §§ 601(e) and 604, 52 Stat. 1054, 1055, 21 U.S.C. §§ 361(e). It is clear from these provisions that Congress contemplated that a color might be harmless in respect of drugs or cosmetics, but not of foods. And the fact that the Secretary has established a further category, distinguishing between colors intended for external and for general use, we do not think inconsistent with our interpretation of the Act. These distinctions can be established through tests run on the color substance as such, in the way in which the Secretary has conducted the tests in the matter before us. It is a far cry from saying that the Act permits a generic distinction capable of laboratory proof, between external and internal uses of a color, to say that it commands that the colors cannot be inquired of at all except in the specific contexts of their use in food, drug and cosmetic products.Second. But even if the Secretary's approach of viewing the harmlessness of coal tar colors in terms of the colors themselves, rather than in their specific applications, is correct, the respondents insist, as the court below indicated, that the Secretary should establish tolerances for the use of colors in food even though not found to be "harmless." The respondents point to § 406(a) of the Act which allows the Secretary to establish tolerances for poisonous substances added to food where the substance is "required in the production" of the food or "cannot be Page 358 U. S. 166 avoided by good manufacturing practice." They argue that this provision should be used by the Secretary to establish a maximum tolerance for the application of Red 32 to the skins of oranges, either because it applies by its own terms or it is applicable by analogy. [Footnote 14] The Secretary contends that he is without power to permit the use of harmful coal tar colors in specific foods through a system of tolerances. We believe he is correct.The Federal Food, Drug, and Cosmetic Act is a detailed and thorough piece of legislation. Its treatment of many public health and food problems is quite specific, and, of course, it is the duty of the courts, in construing it, to be mindful of its approach in terms of draftsmanship. Here again, in our construction of this explicit Act, we must be sensitive to what Congress has written, and recall that "It is for us to ascertain -- neither to add nor to subtract, neither to delete nor to distort." 62 Cases of Jam v. United States, 340 U. S. 593, 340 U. S. 596. Section 406(a), which provides for the system of tolerances, constitutes, by its terms, a definition of the term "unsafe," which appears in § 402(a)(2), a prohibition of foods which bear or contain "any added poisonous or added deleterious substance which is unsafe within the meaning of section 406." This is a prohibition entirely separate and distinct from the prohibitions of § 402(c) on foods containing or bearing uncertified coal tar colors. The existence of a tolerance is specifically stated in § 406(a) only to give sanction to what would otherwise amount to adulteration within the terms of § 402(a)(1). Accordingly, it is obvious from the language of the statute that the provisions Page 358 U. S. 167 authorizing the establishment of tolerances apply only to § 402(a)(1) and (2), and do not apply to § 402(c)'s flat prohibition against the use of uncertified colors. Respondents do not direct us to any substantial contrary indication in the legislative history. Nor can the tolerance provisions be applied to coal tar colors through some form of analogy. The command of the statute is plain: where a coal tar color is not harmless, it is not to be certified; if it is not certified, it is not to be used at all. In this regard also, an approach in terms of the toxicity of the coloring ingredient, rather than of the food product as a whole was chosen by Congress. It evidently took the view that, unless coal tar colors were harmless, the considerations of the benefits of visual appeal that might be urged in favor of their use should not prevail in the light of the considerations of the public health. In the case of other sorts of added poisons, though only where they were required in the production of the food concerned or could not under good manufacturing practice be avoided, a different congressional policy was expressed in the 1938 enactment. It is the duty of the Secretary to give effect to this distinction; he has done so with apparent substantial uniformity, and has done so here.Third. After the promulgation of the Secretary's order, Congress afforded temporary relief to those economically interested in the coloring or oranges with Red 32. Legislation was enacted in the summer of 1956 to afford a period of approximately three years (until March 1, 1959), during which use of the color would be allowed solely in application to the skins of oranges. [Footnote 15] The statute does Page 358 U. S. 168 not, in our view, affect the situation presented to the courts for judicial review; the Secretary's order remains to be tested under the permanent provisions of the Act, insofar as they will affect respondents after March 1, 1959. The statute accordingly operates as a legislatively ordained stay of the Secretary's order insofar as it affects the present respondents and those similarly situated. See H.R.Rep.No.1982, p. 3, and S.Rep.No. 2391, p. 3, 84th Cong., 2d Sess. In view of the very temporary nature of this legislative "stay," the automatic resumption of the status quo upon its expiration, and the effect of the order on the respondents, even during the legislative stay, we agree with the parties that the matter before us is not moot. The Secretary's order was the promulgation of a general rule, prospective in operation, and the facts of the respondents' business are such that, if the order is upheld, there will be a practical effect on them even during the span of the temporary legislation. Accordingly, the respondents remain persons adversely affected by the Secretary's order, and it is proper for us now to determine the legal situation in regard to them when the temporary legislation expires. Under the permanent provisions of §§ 402 and 406 the Secretary's order was lawful, and the respondents present no grounds on which they can legally object to its application to them. The judgment of the Court of Appeals, setting the Secretary's order aside in part, must beReversed

U.S. Supreme CourtFlemming v. Florida Citrus Exchange, 358 U.S. 153 (1958)Flemming v. Florida Citrus ExchangeNo. 27Argued November 17, 1958Decided December 15, 1958358 U.S. 153SyllabusUnder § 406(b) of the Federal Food, Drug, and Cosmetic Act, the Food and Drug Administration, in 1969, certified as "harmless and suitable for use in food" a coal tar color which has been used for many years in coloring oranges. After new tests in 1951-1953 had shown that the color had toxic effects on animals, and after public notice and hearings, the Secretary of Health, Education, and Welfare, in 1955, ordered the color removed from the certified list. Under §§ 301 and 402(c) of the Act, this had the effect of making it unlawful to ship in interstate commerce any food bearing or containing such color. The Secretary did not determine that the color was harmful for human consumption in the amounts used in coloring oranges, but only that the color itself was not "harmless and suitable for use in food" within the meaning of § 406(b), and he took the position that he had no authority to determine whether it was "required in the production" of food within the meaning of § 406(a) or to promulgate thereunder a safe tolerance for its use on oranges. In a review proceeding under § 701(f), the Court of Appeals set aside the order insofar as it removed the certification of that color as harmless and suitable for use as external coloring on oranges.Held: the Secretary's order was lawful, and it must be sustained. Pp. 358 U. S. 160-165.(a) In §§ 402(c) and 406(b), dealing specifically with coal tar colors, Congress carefully outlined the special treatment to be given to coal tar colors: the test of certification provided concentrates on the color substance itself; it is to be certified only if it is harmless. Pp. 358 U. S. 160-162.(b) This special method of dealing with coal tar colors relieves the Secretary from showing in such case that a food containing Page 358 U. S. 154 them raises a possibility of injury to health; and it makes no requirement that the colors be tested by experimental feeding in the proportions in which they are used in specific food products. Pp. 358 U. S. 162-164.(c) The evidence justified the Secretary's finding that the color here involved was poisonous. P. 164, n 13.(d) In forbidding the use of coal tar colors, in foods, the Secretary is not required to restrict his prohibition to specific food uses in whish the color is shown to have a deleterious effect. Pp. 358 U. S. 164-165.2. The Secretary is not authorized by § 406(a) to permit the use of harmful coal tar colors in specific foods through a system of tolerances, since that section does not apply to § 402(c)'s flat prohibition against the use of uncertified coal tar colors. Pp. 358 U. S. 165-176.3. That special legislation has permitted the use of the color here involved solely in application to the skin of oranges for a temporary period ending March 1, 1959, does not render this case moot, or prevent respondents from being persons "adversely affected" by the Secretary's order within the meaning of § 701(f). Pp. 358 U. S. 167-168.246 F.2d 850 reversed.

1956_295

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.Appellee was indicted under § 242(d) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 208, originally part of § 23 of the Internal Security Act of 1950, 64 Stat. 1010, on the charge that, as an alien against whom a final order of deportation had been outstanding Page 353 U. S. 195 for more than six months, he had willfully failed to give information to the Immigration and Naturalization Service as required by that section. Appellee moved to dismiss the indictment on the grounds, inter alia, that it failed to state an offense within the statute, and, in the alternative, if it did so, that the statute was unconstitutional. The District Court held that the statute, as construed by it, was not unconstitutional. 140 F. Supp. 815. Thereupon, the United States filed a motion for clarification of the court's opinion, and appellee filed a supplemental motion to dismiss the indictment, claiming that the statute, as construed by the district judge, did not authorize the Government to elicit the demanded information. The District Court, in a second opinion, dismissed the indictment for failure to state an offense. 140 F. Supp. at 820. The case was brought here, 352 U.S. 817, under the Criminal Appeals Act of 1907, as amended, 18 U.S.C. § 3731.The section, as amended, 68 Stat. 1232, 8 U.S.C. (Supp. II) § 1252(d), is as follows:"(d) Any alien, against whom a final order of deportation as defined in subsection (c) heretofore or hereafter issued has been outstanding for more than six months shall, pending eventual deportation, be subject to supervision under regulations prescribed by the Attorney General. Such regulations shall include provisions which will require any alien subject to supervision (1) to appear from time to time before an immigration officer for identification; (2) to submit, if necessary, to medical and psychiatric examination at the expense of the United States; (3) to give information under oath as to his nationality, circumstances, habits, associations, and activities, and such other information, whether or not related to the foregoing, as the Attorney General may deem fit and proper; and (4) to conform to such Page 353 U. S. 196 reasonable written restrictions on his conduct or activities as are prescribed by the Attorney General in his case. Any alien who shall willfully fail to comply with such regulations, or willfully fail to appear or to give information or submit to medical or psychiatric examination if required, or knowingly give false information in relation to the requirements of such regulations, or knowingly violate a reasonable restriction imposed upon his conduct or activity, shall be fined not more than $1,000 or imprisoned not more than one year, or both."The District Court construed § 242(d) as conferring upon the Attorney General "power to supervise the alien to make sure he is available for deportation, and no further power." Accordingly, it held that clause (3) of this subsection is to be restricted to require only"such information as is necessary to enable the Attorney General to be certain that the alien is holding himself in readiness to answer the call to be deported when it comes."140 F. Supp. at 819-820. The court found that the questions listed in the indictment, which are set forth in the margin, * were not relevant to appellee's availability for deportation. Page 353 U. S. 197 The interpretation that the District Court thus placed on § 242(d) was derived from a consideration of its relation to the entire statutory scheme of deportation of which it is a part. The court below was further guided by the principle that requires courts, when construing statutes, to avoid constitutional doubts."To hold that the statute intended to give an official the unlimited right to Page 353 U. S. 198 subject a man to criminal penalties for failure to answer absolutely any question the official may decide to ask would raise very serious constitutional questions."Id., 140 F. Supp. at 821.The Government does not support the questions put to the alien on the basis of the construction that the District Court placed upon § 242(d). This construction authorizes all questions reasonably appropriate to keep the Attorney General advised regarding the continued availability for departure of a deportable alien. The Government contends that the District Court misconceived the scope of the statute. It points to what it characterizes as "the eloquent breadth" of clause (3), whereby the alien is to give "such other information, whether or not related to the foregoing, as the Attorney General may deem fit and proper." This, says the Government, establishes a requirement "in the broadest possible statutory terms for the furnishing of information by the alien." And this view, it maintains, fits into the statutory scheme. In the circumstances defined by § 242(a), an alien may be detained pending determination of deportability, and § 242(c) authorizes such detention for six months after the alien has been found deportable. So, the Government argues, § 242(d), though it does not authorize detention after six months, is an attempt to accomplish in a modified form the ends that would justify detention in the earlier stages of the deportation process. Our decision in Carlson v. Landon, 342 U. S. 524, is heavily invoked. If, so the argument runs, detention of active alien Communists pending deportation hearings was sustainable under § 242(a), the national interest in avoiding recurrence of past Communist activity for which appellee is being deported should at least require him to answer questions regarding any present Communist relationships. For this view of the purpose of supervision, support is found in two other statutory provisions: Page 353 U. S. 199 § 242(e), making an alien's willful failure to leave the country a felony but providing for suspension of sentence and release of the alien upon judicial consideration, inter alia, of the effect of release upon the national security and the likelihood of resumption of conduct that serves as a basis for deportation, and the recital in § 2(13) of the Internal Security Act of 1950 that"numerous aliens who have been found to be deportable, many of whom are in the subversive, criminal, or immoral classes . . . , are free to roam the country at will without supervision or control."64 Stat. 987.The language of § 242(d)(3), if read in isolation and literally, appears to confer upon the Attorney General unbounded authority to require whatever information he deems desirable of aliens whose deportation has not been effected within six months after it has been commanded. The Government itself shrinks from standing on the breadth of these words. But once the tyranny of literalness is rejected, all relevant considerations for giving a rational content to the words become operative. A restrictive meaning for what appear to be plain words may be indicated by the Act as a whole, by the persuasive gloss of legislative history, or by the rule of constitutional adjudication, relied on by the District Court, that such a restrictive meaning must be given if a broader meaning would generate constitutional doubts.The preoccupation of the entire subsection of which clause (3) is a part is certainly with availability for deportation. Clause (1) requires the alien's periodic appearance for the purpose of identification, and clause (2), dealing with medical and psychiatric examination when necessary, clearly is directed to the same end, and the "reasonable written restrictions on [the alien's] conduct or activities" authorized by clause (4) have an implied scope to be gathered from the subject matter, i.e., the object of the statute as a whole. Moreover, this limitation Page 353 U. S. 200 of "reasonableness" imposed by clause (4) upon the Attorney General's power to restrict suggests that, if we are to harmonize the various provisions of the section, the same limitation must also be read into the Attorney General's seemingly limitless power to question under clause (3). For assuredly Congress did not authorize that official to elicit information that could not serve as a basis for confining an alien's activities. Nowhere in § 242(d) is there any suggestion of a power of broad supervision like unto that over a probationer. When Congress did want to deal with the far-flung interest of national security or the general undesirable conduct of aliens, it gave clear indication of this purpose, as in § 242(e). In providing for the release of aliens convicted of willful failure to depart, that subsection specifically requires courts to inquire into both the effect of the alien's release upon national security and the likelihood of his continued undesirable conduct.The legislative history likewise counsels confinement of the mere words to the general purpose of the legislative scheme of which clause (d) is a part, namely, the actual deportation of certain undesirable classes of aliens. Section 242(d), as it was reported by the House Judiciary Committee and passed by the House in 1949, was in its present state in all but one significant respect. It provided for indefinite detention of any alien who willfully failed to comply with the regulations, to appear, to give information, or to submit to medical examination, or who knowingly gave false information or violated a reasonable restriction upon his activity. H.R.Rep. No. 1192, 81st Cong., 1st Sess., pp. 2-3. The report of the House Committee, although in several places focusing only upon availability for deportation, does indicate concern over the threat to the national interest represented by undesirable but undeportable aliens. The Senate Judiciary Committee, while sharing the desire of the House Page 353 U. S. 201 to control the activities of such aliens, substituted for the House bill's detention provision the imposition of criminal penalties for failure to comply with the conditions of supervision. The report of the Senate Committee significantly states the reason for the change: "This provision in the bill, as it passed the House of Representatives, appears to present a constitutional question." S.Rep. No. 2239, 81st Cong., 2d Sess., p. 8. This history, although suggesting a desire to exercise continuing control over the activities as well as the availability of aliens whose deportation had been ordered but not effected, shows a strong congressional unwillingness to enact legislation that may subject the Attorney General's supervisory powers to constitutional challenge.Acceptance of the interpretation of § 242(d) urged by the Government would raise doubts as to the statute's validity. By construing the Act to confer power on the Attorney General and his agents to inquire into matters that go beyond assuring an alien's availability for deportation, we would, at the very least, open up the question of the extent to which an administrative officer may inhibit deportable aliens from renewing activities that subjected them to deportation. See 70 Harv.L.Rev. 718. This is not Carlson v. Landon, supra, where the question was whether an alien could be detained during the customarily brief period pending determination of deportability. Contrariwise, and as the Senate and House Committees recognized in passing on § 242(d), supervision of the undeportable alien may be a lifetime problem. In these circumstances, issues touching liberties that the Constitution safeguards, even for an alien "person," would fairly be raised on the Government's view of the statute.The path of constitutional concern in this situation is clear."When the validity of an act of the Congress is drawn in question, and even if a serious doubt of Page 353 U. S. 202 constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."Crowell v. Benson, 285 U. S. 22, 285 U. S. 62. See also cases cited in the concurring opinion of Mr. Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 297 U. S. 348, note 8.Section 242(d) is part of a legislative scheme designed to govern and to expedite the deportation of undesirable aliens, and clause (3) must be placed in the context of that scheme. As the District Court held and as our own examination of the Act confirms, it is a permissible, and therefore an appropriate, construction to limit the statute to authorizing all questions reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue. Accordingly, the judgment of the District Court isAffirmed

U.S. Supreme CourtUnited States v. Witkovich, 353 U.S. 194 (1957)United States v. WitkovichNo. 295Argued February 28, 1957Decided April 29, 1957353 U.S. 194SyllabusAppellee was indicted under § 242(d) of the Immigration and Nationality Act of 1952 on the charge that, as an alien against whom a final order of deportation had been outstanding for more than six months, he had willfully failed to give information requested by the Immigration and Naturalization Service under the purported authority of clause (3) of that Section. The information he was charged with failing to furnish concerned (1) present membership in and activities on behalf of the Communist Party and other organizations, and (2) associations with particular individuals.Held: construing clause (3) of § 242(d) in the context of the entire Section and of the scheme of the legislation as a whole, with due regard to the principle of so construing statutes as to avoid raising constitutional questions, the information an alien is required to furnish under clause (3) relates solely to his availability for deportation, and dismissal of the indictment for failure to state an offense is sustained. Pp. 353 U. S. 194-202.140 F. Supp. 815 affirmed.

1988_88-226

JUSTICE KENNEDY delivered the opinion of the Court.In the southeast portion of New York City's Central Park, about 10 blocks upward from the park's beginning point at 59th Street, there is an amphitheater and stage structure known as the Naumberg Acoustic Bandshell. The bandshell faces west across the remaining width of the park. In close proximity to the bandshell, and lying within the directional path of its sound, is a grassy open area called the Sheep Meadow. The city has designated the Sheep Meadow as a quiet area for passive recreations like reclining, walking, and reading. Just beyond the park, and also within the potential sound range of the bandshell, are the apartments and residences of Central Park West.This case arises from the city's attempt to regulate the volume of amplified music at the bandshell so the performances are satisfactory to the audience without intruding upon those who use the Sheep Meadow or live on Central Park West and in its vicinity.The city's regulation requires bandshell performers to use sound amplification equipment and a sound technician provided by the city. The challenge to this volume control technique comes from the sponsor of a rock concert. The trial court sustained the noise control measures, but the Court of Appeals for the Second Circuit reversed. We granted certiorari to resolve the important First Amendment issues presented by the case.IRock Against Racism, respondent in this case, is an unincorporated association which, in its own words, is "dedicated to the espousal and promotion of antiracist views." App. to Pet. for Cert. 3. Each year from 1979 through 1986, RAR has sponsored a program of speeches and rock music at the Page 491 U. S. 785 bandshell. RAR has furnished the sound equipment and sound technician used by the various performing groups at these annual events.Over the years, the city received numerous complaints about excessive sound amplification at respondent's concerts from park users and residents of areas adjacent to the park. On some occasions, RAR was less than cooperative when city officials asked that the volume be reduced; at one concert, police felt compelled to cut off the power to the sound system, an action that caused the audience to become unruly and hostile. App. 127-131, 140-141, 212-214, 345-347.Before the 1984 concert, city officials met with RAR representatives to discuss the problem of excessive noise. It was decided that the city would monitor sound levels at the edge of the concert-ground, and would revoke respondent's event permit if specific volume limits were exceeded. Sound levels at the concert did exceed acceptable levels for sustained periods of time, despite repeated warnings and requests that the volume be lowered. Two citations for excessive volume were issued to respondent during the concert. When the power was eventually shut off, the audience became abusive and disruptive.The following year, when respondent sought permission to hold its upcoming concert at the bandshell, the city declined to grant an event permit, citing its problems with noise and crowd control at RAR's previous concerts. The city suggested some other city-owned facilities as alternative sites for the concert. RAR declined the invitation, and filed suit in United States District Court against the city, its mayor, and various police and parks department officials, seeking an injunction directing issuance of an event permit. After respondent agreed to abide by all applicable regulations, the parties reached agreement and a permit was issued.The city then undertook to develop comprehensive New York City Parks Department Use Guidelines for the Naumberg Bandshell. A principal problem to be addressed by Page 491 U. S. 786 the guidelines was controlling the volume of amplified sound at bandshell events. A major concern was that, at some bandshell performances, the event sponsors had been unable to "provide the amplification levels required and crowds unhappy with the sound became disappointed or unruly.'" Brief for Petitioners 9. The city found that this problem had several causes, including inadequate sound equipment, sound technicians who were either unskilled at mixing sound outdoors or unfamiliar with the acoustics of the bandshell and its surroundings, and the like. Because some performers compensated for poor sound mix by raising volume, these factors tended to exacerbate the problem of excess noise. [Footnote 1] App. 30, 189, 218-219.The city considered various solutions to the sound amplification problem. The idea of a fixed decibel limit for all performers using the bandshell was rejected because the impact on listeners of a single decibel level is not constant, but varies in response to changes in air temperature, foliage, audience size, and like factors. Id. at 31, 220, 285-286. The city also rejected the possibility of employing a sound technician to operate the equipment provided by the various sponsors of bandshell events because the city's technician might have had difficulty satisfying the needs of sponsors while operating unfamiliar, and perhaps inadequate, sound equipment. Id. Page 491 U. S. 787 at 220. Instead, the city concluded that the most effective way to achieve adequate but not excessive sound amplification would be for the city to furnish high quality sound equipment and retain an independent, experienced sound technician for all performances at the bandshell. After an extensive search, the city hired a private sound company capable of meeting the needs of all the varied users of the bandshell.The Use Guidelines were promulgated on March 21, 1986. [Footnote 2] After learning that it would be expected to comply with the guidelines at its upcoming annual concert in May, 1986, respondent returned to the District Court and filed a motion for an injunction against the enforcement of certain aspects of the guidelines. The District Court preliminarily enjoined enforcement of the sound amplification rule on May 1, 1986. See 636 F. Supp. 178 (SDNY 1986). Under the protection of the injunction, and alone among users of the bandshell in the 1986 season, RAR was permitted to use its own sound equipment Page 491 U. S. 788 and technician, just as it had done in prior years. RAR's 1986 concert again generated complaints about excessive noise from park users and nearby residents. App. 127, 138.After the concert, respondent amended its complaint to seek damages and a declaratory judgment striking down the guidelines as facially invalid. After hearing five days of testimony about various aspects of the guidelines, the District Court issued its decision upholding the sound amplification guideline. [Footnote 3] The court found that the city had been "motivated by a desire to obtain top-flight sound equipment and experienced operators" in selecting an independent contractor to provide the equipment and technician for bandshell events, and that the performers who did use the city's sound system in the 1986 season, in performances "which ran the full cultural gamut from grand opera to salsa to reggae," were uniformly pleased with the quality of the sound provided. 658 F. Supp. 1346, 1352 (SDNY 1987).Although the city's sound technician controlled both sound volume and sound mix by virtue of his position at the mixing board, the court found that"[t]he City's practice for events at the Bandshell is to give the sponsor autonomy with respect to the sound mix: balancing treble with bass, highlighting a particular instrument or voice, and the like,"and that the city's sound technician "does all he can to accommodate the sponsor's desires in those regards." Ibid. Even with respect to volume control, the city's practice was to confer with the sponsor before making any decision to turn the volume down. Ibid. In some instances, as with a New York Grand Opera performance, the sound technician accommodated the performers' unique needs by integrating special microphones with the city's equipment. The Court specifically found that"[t]he City's implementation of the Bandshell guidelines provides for a sound amplification system capable of meeting Page 491 U. S. 789 RAR's technical needs and leaves control of the sound 'mix' in the hands of RAR."Id. at 1353. Applying this Court's three-part test for judging the constitutionality of government regulation of the time, place, or manner of protected speech, the court found the city's regulation valid.The Court of Appeals reversed. 848 F.2d 367 (CA2 1988). After recognizing that"[c]ontent-neutral time, place and manner regulations are permissible so long as they are narrowly tailored to serve a substantial government interest and do not unreasonably limit alternative avenues of expression,"the court added the proviso that"the method and extent of such regulation must be reasonable, that is, it must be the least intrusive upon the freedom of expression as is reasonably necessary to achieve a legitimate purpose of the regulation."Id. at 370 (citing United States v. O'Brien, 391 U. S. 367, 377 (1968)). Applying this test, the court determined that the city's guideline was valid only to the extent necessary to achieve the city's legitimate interest in controlling excessive volume, but found there were various alternative means of controlling volume without also intruding on respondent's ability to control the sound mix. For example, the city could have directed respondent's sound technician to keep the volume below specified levels. Alternatively, a volume-limiting device could have been installed; and as a "last resort," the court suggested, "the plug can be pulled on the sound to enforce the volume limit." 848 F.2d at 372, n. 6. In view of the potential availability of these seemingly less restrictive alternatives, the Court of Appeals concluded that the sound amplification guideline was invalid because the city had failed to prove that its regulation "was the least intrusive means of regulating the volume." Id. at 371.We granted certiorari, 488 U, S. 816 (1988), to clarify the legal standard applicable to governmental regulation of the time, place, or manner of protected speech. Because the Court of Appeals erred in requiring the city to prove that its regulation was the least intrusive means of furthering its legitimate Page 491 U. S. 790 governmental interests, and because the ordinance is valid on its face, we now reverse.IIMusic is one of the oldest forms of human expression. From Plato's discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state. See 2 Dialogues of Plato, Republic, bk. 3, pp. 231, 245-248 (B. Jowett transl., 4th ed.1953) ("Our poets must sing in another and a nobler strain"); Musical Freedom and Why Dictators Fear It, N.Y. Times, Aug. 23, 1981, section 2, p. 1, col. 5; Soviet Schizophrenia toward Stravinsky, N.Y. Times, June 26, 1982, section 1, p. 25, col. 2; Symphonic Voice from China Is Heard Again, N.Y. Times, Oct. 11, 1987, section 2, p. 27, col. 1. The Constitution prohibits any like attempts in our own legal order. Music, as a form of expression and communication, is protected under the First Amendment. In the case before us, the performances apparently consisted of remarks by speakers, as well as rock music, but the case has been presented as one in which the constitutional challenge is to the city's regulation of the musical aspects of the concert; and, based on the principle we have stated, the city's guideline must meet the demands of the First Amendment. The parties do not appear to dispute that proposition.We need not here discuss whether a municipality which owns a bandstand or stage facility may exercise, in some circumstances, a proprietary right to select performances and control their quality. See Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 420 U. S. 570-574 (1975) (REHNQUIST, J., dissenting). Though it did demonstrate its own interest in the effort to insure high quality performances by providing the equipment in question, the city justifies its guideline as a regulatory measure to limit and control noise. Here the bandshell was open, apparently, to all performers; and we decide Page 491 U. S. 791 the case as one in which the bandshell is a public forum for performances in which the government's right to regulate expression is subject to the protections of the First Amendment. United States v. Grace, 461 U. S. 171, 461 U. S. 177 (1983); see Frisby v. Schultz, 487 U. S. 474, 487 U. S. 481 (1988); Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 460 U. S. 45 (1983). Our cases make clear, however, that even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions"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."Clark v. Community for Creative NonViolence, 468 U. S. 288, 468 U. S. 293 (1984); see Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 452 U. S. 648 (1981) (quoting Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 771 (1976)). We consider these requirements in turn.AThe principal inquiry in determining content-neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. Community for Creative Non-Violence, supra, at 468 U. S. 295. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages, but not others. See Renton v. Playtime Theatres, Inc., 475 U. S. 41, 475 U. S. 47-48 (1986). Government regulation of expressive activity is content-neutral so long as it is "justified without reference to the content of the regulated speech." Community for Creative Non-Violence, supra, at 468 U. S. 293 (emphasis added); Heffron, supra, at 462 U. S. 648 (quoting Virginia Pharmacy Bd., supra, at Page 491 U. S. 792 425 U. S. 771); see Boos v. Barry, 485 U. S. 312, 485 U. S. 320-321 (1988) (opinion of O'CONNOR, J.).The principal justification for the sound amplification guideline is the city's desire to control noise levels at bandshell events, in order to retain the character of the Sheep Meadow and its more sedate activities, and to avoid undue intrusion into residential areas and other areas of the park. This justification for the guideline "ha[s] nothing to do with content," Boos v. Barry, supra, at 485 U. S. 320, and it satisfies the requirement that time, place, or manner regulations be content-neutral.The only other justification offered below was the city's interest in "ensur[ing] the quality of sound at Bandshell events." 658 F. Supp. at 1352; see 848 F.2d at 370, n. 3. Respondent urges that this justification is not content-neutral, because it is based upon the quality, and thus the content, of the speech being regulated. In respondent's view, the city is seeking to assert artistic control over performers at the bandshell by enforcing a bureaucratically determined, value-laden conception of good sound. That all performers who have used the city's sound equipment have been completely satisfied is of no moment, respondent argues, because"[t]he First Amendment does not permit and cannot tolerate state control of artistic expression merely because the State claims that [its] efforts will lead to 'top-quality' results."Brief for Respondent 19.While respondent's arguments that the government may not interfere with artistic judgment may have much force in other contexts, they are inapplicable to the facts of this case. The city has disclaimed in express terms any interest in imposing its own view of appropriate sound mix on performers. To the contrary, as the District Court found, the city requires its sound technician to defer to the wishes of event sponsors concerning sound mix. 658 F. Supp. at 1352-1353. On this record, the city's concern with sound quality extends only to the clearly content-neutral goals of ensuring adequate Page 491 U. S. 793 sound amplification and avoiding the volume problems associated with inadequate sound mix. [Footnote 4] Any governmental attempt to serve purely aesthetic goals by imposing subjective standards of acceptable sound mix on performers would raise serious First Amendment concerns, but this case provides us with no opportunity to address those questions. As related above, the District Court found that the city's equipment and its sound technician could meet all of the standards requested by the performers, including RAR.Respondent argues further that the guideline, even if not content-based in explicit terms, is nonetheless invalid on its face because it places unbridled discretion in the hands of city officials charged with enforcing it. See Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750, 486 U. S. 769-772 (1988) (4-to-3 decision); Heffron v. International Society for Krishna Consciousness, Inc., supra, at 452 U. S. 649; Freedman v. Maryland, 380 U. S. 51, 380 U. S. 56 (1965); Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97 (1940). According to respondent, there is nothing in the language of the guideline to prevent city officials from selecting wholly inadequate sound equipment or technicians, or even from varying the volume and quality of sound based on the message being conveyed by the performers.As a threshold matter, it is far from clear that respondent should be permitted to bring a facial challenge to this aspect of the regulation. Our cases permitting facial challenges to regulations that allegedly grant officials unconstrained authority to regulate speech have generally involved licensing schemes that "ves[t] unbridled discretion in a government official over whether to permit or deny expressive activity." Plain Dealer, supra, at 486 U. S. 755. The grant of discretion that respondent Page 491 U. S. 794 seeks to challenge here is of an entirely different, and lesser, order of magnitude, because respondent does not suggest that city officials enjoy unfettered discretion to deny bandshell permits altogether. Rather, respondent contends only that the city, by exercising what is concededly its right to regulate amplified sound, could choose to provide inadequate sound for performers based on the content of their speech. Since respondent does not claim that city officials enjoy unguided discretion to deny the right to speak altogether, it is open to question whether respondent's claim falls within the narrow class of permissible facial challenges to allegedly unconstrained grants of regulatory authority. Cf. 486 U.S. at 486 U. S. 787 (WHITE, J., dissenting) (arguing that facial challenges of this type are permissible only where "the local law at issue require[s] licenses -- not for a narrow category of expressive conduct that could be prohibited -- but for a sweeping range of First Amendment protected activity").We need not decide, however, whether the "extraordinary doctrine" that permits facial challenges to some regulations of expression, see id. at 486 U. S. 772 (WHITE, J., dissenting), should be extended to the circumstances of this case, for respondent's facial challenge fails on its merits. The city's guideline states that its goals are to "provide the best sound for all events" and to"insure appropriate sound quality balanced with respect for nearby residential neighbors and the mayorally decreed quiet zone of [the] Sheep Meadow."App. 375. While these standards are undoubtedly flexible, and the officials implementing them will exercise considerable discretion, perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity. See Grayned v. City of Rockford, 408 U. S. 104, 408 U. S. 110 (1972) ("Condemned to the use of words, we can never expect mathematical certainty in our language"); see also Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 79 (1949) (rejecting vagueness challenge to city ordinance forbidding "loud and raucous" sound amplification) (opinion of Reed, J.). By its own terms, the Page 491 U. S. 795 city's sound amplification guideline must be interpreted to forbid city officials purposely to select inadequate sound systems or to vary the sound quality or volume based on the message being delivered by performers. The guideline is not vulnerable to respondent's facial challenge. [Footnote 5]Even if the language of the guideline were not sufficient on its face to withstand challenge, our ultimate conclusion would be the same, for the city has interpreted the guideline in such a manner as to provide additional guidance to the officials charged with its enforcement. The District Court expressly found that the city's policy is to defer to the sponsor's desires concerning sound quality. 658 F. Supp. at 1352. With respect to sound volume, the city retains ultimate control, but city officials "mak[e] it a practice to confer with the sponsor if any questions of excessive sound arise, before taking any corrective action." Ibid. The city's goal of ensuring that "the sound amplification [is] sufficient to reach all listeners within the defined concert-ground," ibid., serves to limit further the discretion of the officials on the scene. Administrative interpretation and implementation of a regulation is, of course, highly relevant to our analysis, for,"[i]n evaluating a facial Page 491 U. S. 796 challenge to a state law, a federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered."Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U. S. 489, 455 U. S. 494, n. 5 (1982); see Plain Dealer, 486 U.S. at 486 U. S. 769-770, and n. 11; United States v. Grace, 461 U.S. at 461 U. S. 181, n. 10; Grayned v. City of Rockford, supra, at 408 U. S. 110; Poulos v. New Hampshire, 345 U. S. 395 (1953). Any inadequacy on the face of the guideline would have been more than remedied by the city's narrowing construction.BThe city's regulation is also "narrowly tailored to serve a significant governmental interest." Community for Creative Non-Violence, 468 U.S. at 468 U. S. 293. Despite respondent's protestations to the contrary, it can no longer be doubted that government "ha[s] a substantial interest in protecting its citizens from unwelcome noise." City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 466 U. S. 806 (1984) (citing Kovacs v. Cooper, supra); see Grayned, supra, at 408 U. S. 116. This interest is perhaps at its greatest when government seeks to protect "the wellbeing, tranquility, and privacy of the home,'" Frisby v. Schultz, 487 U.S. at 487 U. S. 484 (quoting Carey v. Brown, 447 U. S. 455, 447 U. S. 471 (1980)), but it is by no means limited to that context, for the government may act to protect even such traditional public forums as city streets and parks from excessive noise. Kovacs v. Cooper, 336 U.S. at 336 U. S. 86-87 (opinion of Reed, J.); id. at 336 U. S. 96-97 (Frankfurter, J., concurring); id. at 336 U. S. 97 (Jackson, J., concurring); see Community for Creative Non-Violence, supra, at 468 U. S. 296 (recognizing the government's "substantial interest in maintaining the parks . . . in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them").We think it also apparent that the city's interest in ensuring the sufficiency of sound amplification at bandshell events is a substantial one. The record indicates that inadequate Page 491 U. S. 797 sound amplification has had an adverse affect on the ability of some audiences to hear and enjoy performances at the bandshell. The city enjoys a substantial interest in ensuring the ability of its citizens to enjoy whatever benefits the city parks have to offer, from amplified music to silent meditation. See Community for Creative Non-Violence, supra, at 468 U. S. 296.The Court of Appeals recognized the city's substantial interest in limiting the sound emanating from the bandshell. See 848 F.2d at 370. The court concluded, however, that the city's sound amplification guideline was not narrowly tailored to further this interest, because "it has not [been] shown . . . that the requirement of the use of the city's sound system and technician was the least intrusive means of regulating the volume." Id. at 371 (emphasis added). In the court's judgment, there were several alternative methods of achieving the desired end that would have been less restrictive of respondent's First Amendment rights.The Court of Appeals erred in sifting through all the available or imagined alternative means of regulating sound volume in order to determine whether the city's solution was "the least intrusive means" of achieving the desired end. This"less-restrictive-alternative analysis . . . has never been a part of the inquiry into the validity of a time, place, and manner regulation."Regan v. Time, Inc., 468 U. S. 641, 468 U. S. 657 (1984) (opinion of WHITE, J.). Instead, our cases quite clearly hold that restrictions on the time, place, or manner of protected speech are not invalid "simply because there is some imaginable alternative that might be less burdensome on speech." United States v. Albertini, 472 U. S. 675, 472 U. S. 689 (1985).The Court of Appeals apparently drew its least-intrusive-means requirement from United States v. O'Brien, 391 U.S. at 391 U. S. 377, the case in which we established the standard for judging the validity of restrictions on expressive conduct. See 848 F.2d at 370. The court's reliance was misplaced, Page 491 U. S. 798 however, for we have held that the O'Brien test, "in the last analysis, is little, if any, different from the standard applied to time, place, or manner restrictions." Community for Creative Non-Violence, supra, at 468 U. S. 298. Indeed, in Community for Creative Non-Violence, we squarely rejected reasoning identical to that of the court below:"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. . . . We do not believe . . . that either United States v. O'Brien or the time, place, or manner decisions assign to the judiciary the authority to replace the [parks department] as the manager of the [city'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."468 U.S. 468 U. S. 299.Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so. [Footnote 6] Page 491 U. S. 799 Rather, the requirement of narrow tailoring is satisfied"so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation."United States v. Albertini, supra, at 472 U. S. 689; see also Community for Creative Non-Violence, supra, at 468 U. S. 297. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. [Footnote 7] See Frisby Page 491 U. S. 800 v. Schultz, 487 U.S. at 487 U. S. 485 ("A complete ban can be narrowly tailored, but only if each activity within the proscription's scope is an appropriately targeted evil"). So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative."The validity of [time, place, or manner] regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests"or the degree to which those interests should be promoted. United States v. Albertini, supra, at 472 U. S. 689; see Community for Creative Non-Violence, supra, at 468 U. S. 299.It is undeniable that the city's substantial interest in limiting sound volume is served in a direct and effective way by the requirement that the city's sound technician control the mixing board during performances. Absent this requirement, the city's interest would have been served less well, as is evidenced by the complaints about excessive volume generated by respondent's past concerts. The alternative regulatory methods hypothesized by the Court of Appeals reflect nothing more than a disagreement with the city over how much control of volume is appropriate or how that level of control is to be achieved. See Community for Creative Non-Violence, 468 U.S. at 468 U. S. 299. The Court of Appeals erred in failing to defer to the city's reasonable determination that its interest in controlling volume would be best served by requiring bandshell performers to utilize the city's sound technician.The city's second content-neutral justification for the guideline, that of ensuring "that the sound amplification [is] sufficient to reach all listeners within the defined concert-ground," Page 491 U. S. 801 658 F. Supp. at 1352, also supports the city's choice of regulatory methods. By providing competent sound technicians and adequate amplification equipment, the city eliminated the problems of inexperienced technicians and insufficient sound volume that had plagued some bandshell performers in the past. No doubt this concern is not applicable to respondent's concerts, which apparently were characterized by more-than-adequate sound amplification. But that fact is beside the point, for the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government's interests in an individual case. Here, the regulation's effectiveness must be judged by considering all the varied groups that use the bandshell, and it is valid so long as the city could reasonably have determined that its interests overall would be served less effectively without the sound amplification guideline than with it. United States v. Albertini, supra, at 472 U. S. 688-689; Community for Creative Non-Violence, supra, at 468 U. S. 296-297. Considering these proffered justifications together, therefore, it is apparent that the guideline directly furthers the city's legitimate governmental interests, and that those interests would have been less well served in the absence of the sound amplification guideline.Respondent nonetheless argues that the sound amplification guideline is not narrowly tailored because, by placing control of sound mix in the hands of the city's technician, the guideline sweeps far more broadly than is necessary to further the city's legitimate concern with sound volume. According to respondent, the guideline "targets . . . more than the exact source of the evil' it seeks to remedy." Frisby v. Schultz, supra, at 487 U. S. 485.If the city's regulatory scheme had a substantial deleterious effect on the ability of bandshell performers to achieve the quality of sound they desired, respondent's concerns would have considerable force. The District Court found, Page 491 U. S. 802 however, that, pursuant to city policy, the city's sound technician"give[s] the sponsor autonomy with respect to the sound mix . . . [and] does all that he can to accommodate the sponsor's desires in those regards."658 F. Supp. at 1352. The court squarely rejected respondent's claim that the city's "technician is not able properly to implement a sponsor's instructions as to sound quality or mix," finding that "[n]o evidence to that effect was offered at trial; as noted, the evidence is to the contrary." App. to Pet. for Cert. 89. In view of these findings, which were not disturbed by the Court of Appeals, we must conclude that the city's guideline has no material impact on any performer's ability to exercise complete artistic control over sound quality. Since the guideline allows the city to control volume without interfering with the performer's desired sound mix, it is not "substantially broader than necessary" to achieve the city's legitimate ends, City Council of Los Angeles v. Taxpayers Page 491 U. S. 803 for Vincent, 466 U.S. at 466 U. S. 808, and thus it satisfies the requirement of narrow tailoring.CThe final requirement, that the guideline leave open ample alternative channels of communication, is easily met. Indeed, in this respect the guideline is far less restrictive than regulations we have upheld in other cases, for it does not attempt to ban any particular manner or type of expression at a given place or time. Compare Frisby, supra, at 487 U. S. 482-484; Community for Creative Non-Violence, supra, at 468 U. S. 295; Renton v. Playtime Theatres, Inc., 475 U.S. at 475 U. S. 53-54. Rather, the guideline continues to permit expressive activity in the bandshell, and has no effect on the quantity or content of that expression beyond regulating the extent of amplification. That the city's limitations on volume may reduce to some degree the potential audience for respondent's speech is of no consequence, for there has been no showing that the remaining avenues of communication are inadequate. See Taxpayers for Vincent, supra, at 466 U. S. 803, and n. 23, 466 U. S. 812, and n. 30; Kovacs, 336 U.S. at 336 U. S. 88-89 (opinion of Reed, J.).IIIThe city's sound amplification guideline is narrowly tailored to serve the substantial and content-neutral governmental interests of avoiding excessive sound volume and providing sufficient amplification within the bandshell concert-ground, and the guideline leaves open ample channels of communication. Accordingly, it is valid under the First Amendment as a reasonable regulation of the place and manner of expression. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtWard v. Rock Against Racism, 491 U.S. 781 (1989)Ward v. Rock Against RacismNo. 88-226Argued February 27, 1989Decided June 22, 1989491 U.S. 781SyllabusRespondent Rock Against Racism (RAR), furnishing its own sound equipment and technicians, has sponsored yearly programs of rock music at the Naumberg Acoustic Bandshell in New York City's Central Park. The city received numerous complaints about excessive noise at RAR's concerts from users of the nearby Sheep Meadow, an area designated by the city for passive recreation, from other users of the park, and from residents of areas adjacent to the park. Moreover, when the city shut off the power after RAR ignored repeated requests to lower the volume at one of its concerts, the audience became abusive and disruptive. The city also experienced problems at bandshell events put on by other sponsors, who, due to their use of inadequate sound equipment or sound technicians unskilled at mixing sound for the bandshell area, were unable to provide sufficient amplification levels, resulting in disappointed or unruly audiences. Rejecting various other solutions to the excessive noise and inadequate amplification problems, the city adopted a Use Guideline for the bandshell which specified that the city would furnish high quality sound equipment and retain an independent, experienced sound technician for all performances. After the city implemented this guideline, RAR amended a preexisting District Court complaint against the city to seek damages and a declaratory judgment striking down the guideline as facially invalid under the First Amendment. The court upheld the guideline, finding, inter alia, that performers who had used the city's sound system and technician had been uniformly pleased; that, although the city's technician ultimately controlled both sound volume and mix, the city's practice was to give the sponsor autonomy as to mix and to confer with him before turning the volume down; and that the city's amplification system was sufficient for RAR's needs. Applying this Court's three-part test for judging the constitutionality of governmental regulation of the time, place, and manner of protected speech, the court found the guideline valid. The Court of Appeals reversed on the ground that such regulations' method and extent must be the least intrusive upon the freedom of expression as is reasonably necessary to achieve the regulations' purpose, finding that there were various less restrictive means by which the city could control excessive volume without also intruding on RAR's ability to control sound mix. Page 491 U. S. 782Held: The city's sound-amplification guideline is valid under the First Amendment as a reasonable regulation of the place and manner of protected speech. Pp. 491 U. S. 790-803.(a) The guideline is content-neutral, since it is justified without reference to the content of the regulated speech. The city's principal justification -- the desire to control noise in order to retain the sedate character of the Sheep Meadow and other areas of the park and to avoid intrusion into residential areas -- has nothing to do with content. The city's other justification, its interest in ensuring sound quality, does not render the guideline content-based as an attempt to impose subjective standards of acceptable sound mix on performers, since the city has expressly disavowed any such intent, and requires its technician to defer to the sponsor's wishes as to mix. On the record below, the city's sound quality concern extends only to the clearly content-neutral goals of ensuring adequate amplification and avoiding volume problems associated with inadequate mix. There is no merit to RAR's argument that the guideline is nonetheless invalid on its face because it places unbridled discretion in the hands of city enforcement officials. Even granting the doubtful proposition that this claim falls within the narrow class of permissible facial challenges to allegedly unconstrained grants of regulatory authority, the claim nevertheless fails, since the guideline's own terms in effect forbid officials purposely to select an inadequate system or to vary sound quality or volume based on the performer's message. Moreover, the city has applied a narrowing construction to the guideline by requiring officials to defer to sponsors on sound quality and confer with them as to volume problems, and by mandating that amplification be sufficient for the sound to reach all concert-ground listeners. Pp. 491 U. S. 791-796.(b) The guideline is narrowly tailored to serve significant governmental interests. That the city has a substantial interest in protecting citizens from unwelcome and excessive noise, even in a traditional public forum such as the park, cannot be doubted. Moreover, it has a substantial interest in ensuring the sufficiency of sound amplification at bandshell events in order to allow citizens to enjoy the benefits of the park, in light of the evidence that inadequate amplification had resulted in the inability of some audiences to hear performances. The Court of Appeals erred in requiring the city to prove that the guideline was the least intrusive means of furthering these legitimate interests, since a "less-restrictive-alternative analysis" has never been -- and is here, again, specifically rejected as -- a part of the inquiry into the validity of a time, place, or manner regulation. See Clark v. Community for Creative Non-Violence, 468 U. S. 288, 468 U. S. 293; Regan v. Time, Inc., 468 U. S. 641. The requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial governmental interest that would be Page 491 U. S. 783 achieved less effectively absent the regulation, and the means chosen are not substantially broader than necessary to achieve that interest. If these standards are met, courts should defer to the government's reasonable determination. Here, the city's substantial interest in limiting sound volume is served in a direct and effective way by the requirement that its technician control the mixing board. Absent this requirement, the city's interest would have been served less well, as is evidenced by the excessive noise complaints generated by RAR's past concerts. The city also could reasonably have determined that, overall, its interest in ensuring that sound amplification was sufficient to reach all concert-ground listeners would be served less effectively without the guideline than with it, since, by providing competent technicians and adequate equipment, the city eliminated inadequate amplification problems that plagued some performers in the past. Furthermore, in the absence of evidence that the guideline had a substantial deleterious effect on the ability of performers to achieve the quality of sound they desired, there is no merit to RAR's contention that the guideline is substantially broader than necessary to achieve the city's legitimate ends. Pp. 491 U. S. 796-802.(c) The guideline leaves open ample alternative channels of communication, since it does not attempt to ban any particular manner or type of expression at a given place and time. Rather, it continues to permit expressive activity in the bandshell, and has no effect on the quantity or content of that expression beyond regulating the extent of amplification. That the city's volume limitations may reduce to some degree the potential audience for RAR's speech is of no consequence, since there has been no showing that the remaining avenues of communication are inadequate. Pp. 491 U. S. 802-803.848 F.2d 367, reversed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., concurred in the result. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 491 U. S. 803. Page 491 U. S. 784

1983_82-1256

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether the Establishment Clause of the First Amendment prohibits a municipality Page 465 U. S. 671 from including a creche, or Nativity scene, in its annual Christmas display.IEach year, in cooperation with the downtown retail merchants' association, the city of Pawtucket, R.I., erects a Christmas display as part of its observance of the Christmas holiday season. The display is situated in a park owned by a nonprofit organization and located in the heart of the shopping district. The display is essentially like those to be found in hundreds of towns or cities across the Nation -- often on public grounds -- during the Christmas season. The Pawtucket display comprises many of the figures and decorations traditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that reads "SEASONS GREETINGS," and the creche at issue here. All components of this display are owned by the city.The creche, which has been included in the display for 40 or more years, consists of the traditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals, all ranging in height from 5" to 5'. In 1973, when the present creche was acquired, it cost the city $1,365; it now is valued at $200. The erection and dismantling of the creche costs the city about $20 per year; nominal expenses are incurred in lighting the creche. No money has been expended on its maintenance for the past 10 years.Respondents, Pawtucket residents and individual members of the Rhode Island affiliate of the American Civil Liberties Union, and the affiliate itself, brought this action in the United States District Court for Rhode Island, challenging the city's inclusion of the creche in the annual display. The District Court held that the city's inclusion of the creche in the display violates the Establishment Clause, 525 F. Supp. 1150, 1178 (1981), which is binding on the states through the Page 465 U. S. 672 Fourteenth Amendment. The District Court found that, by including the creche in the Christmas display, the city has "tried to endorse and promulgate religious beliefs," id. at 1173, and that "erection of the creche has the real and substantial effect of affiliating the City with the Christian beliefs that the creche represents." Id. at 1177. This "appearance of official sponsorship," it believed, "confers more than a remote and incidental benefit on Christianity." Id. at 1178. Last, although the court acknowledged the absence of administrative entanglement, it found that excessive entanglement has been fostered as a result of the political divisiveness of including the creche in the celebration. Id. at 1179-1180. The city was permanently enjoined from including the creche in the display.A divided panel of the Court of Appeals for the First Circuit affirmed. 691 F.2d 1029 (1982). We granted certiorari, 460 U.S. 1080 (1983), and we reverse.IIAThis Court has explained that the purpose of the Establishment and Free Exercise Clauses of the First Amendment is"to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other."Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 614 (1971). At the same time, however, the Court has recognized that"total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable."Ibid. In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible. Page 465 U. S. 673The Court has sometimes described the Religion Clauses as erecting a "wall" between church and state, see, e.g., Everson v. Board of Education, 330 U. S. 1, 330 U. S. 18 (1947). The concept of a "wall" of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. [Footnote 1] The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.No significant segment of our society, and no institution within it, can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government. "It has never been thought either possible or desirable to enforce a regime of total separation. . . ." Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756, 413 U. S. 760 (1973). Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. See, e.g., Zorach v. Clauson, 343 U. S. 306, 343 U. S. 314, 343 U. S. 315 (1952); Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203, 333 U. S. 211 (1948). Anything less would require the "callous indifference" we have said was never intended by the Establishment Clause. Zorach, supra, at 343 U. S. 314. Indeed, we have observed, such hostility would bring us into "war with our national tradition as embodied in the First Amendment's guaranty of the free exercise of religion." McCollum, supra, at 333 U. S. 211-212.BThe Court's interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees. A significant example Page 465 U. S. 674 of the contemporaneous understanding of that Clause is found in the events of the first week of the First Session of the First Congress in 1789. In the very week that Congress approved the Establishment Clause as part of the Bill of Rights for submission to the states, it enacted legislation providing for paid Chaplains for the House and Senate. In Marsh v. Chambers, 463 U. S. 783 (1983), we noted that 17 Members of that First Congress had been Delegates to the Constitutional Convention where freedom of speech, press, and religion and antagonism toward an established church were subjects of frequent discussion. We saw no conflict with the Establishment Clause when Nebraska employed members of the clergy as official legislative Chaplains to give opening prayers at sessions of the state legislature. Id. at 463 U. S. 791.The interpretation of the Establishment Clause by Congress in 1789 takes on special significance in light of the Court's emphasis that the First Congress"was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instrument,"Myers v. United States, 272 U. S. 52, 272 U. S. 174-175 (1926). It is clear that neither the 17 draftsmen of the Constitution who were Members of the First Congress, nor the Congress of 1789, saw any establishment problem in the employment of congressional Chaplains to offer daily prayers in the Congress, a practice that has continued for nearly two centuries. It would be difficult to identify a more striking example of the accommodation of religious belief intended by the Framers.CThere is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789. Seldom in our opinions was this more affirmatively expressed than in Justice Douglas' opinion for the Court validating a program allowing release of Page 465 U. S. 675 public school students from classes to attend off-campus religious exercises. Rejecting a claim that the program violated the Establishment Clause, the Court asserted pointedly:"We are a religious people whose institutions presuppose a Supreme Being."Zorach v. Clauson, supra, at 343 U. S. 313. See also Abington School District v. Schempp, 374 U. S. 203, 374 U. S. 213 (1963).Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders. Beginning in the early colonial period long before Independence, a day of Thanksgiving was celebrated as a religious holiday to give thanks for the bounties of Nature as gifts from God. President Washington and his successors proclaimed Thanksgiving, with all its religious overtones, a day of national celebration [Footnote 2] and Congress made it a National Holiday more than a century ago. Ch. 167, 16 Stat. 168. That holiday has not lost its theme of expressing thanks for Divine aid [Footnote 3] any more than has Christmas lost its religious significance. Page 465 U. S. 676Executive Orders and other official announcements of Presidents and of the Congress have proclaimed both Christmas and Thanksgiving National Holidays in religious terms. And, by Acts of Congress, it has long been the practice that federal employees are released from duties on these National Holidays, while being paid from the same public revenues that provide the compensation of the Chaplains of the Senate and the House and the military services. See J.Res. 5, 23 Stat. 516. Thus, it is clear that Government has long recognized -- indeed it has subsidized -- holidays with religious significance.Other examples of reference to our religious heritage are found in the statutorily prescribed national motto "In God We Trust," 36 U.S.C. § 186, which Congress and the President mandated for our currency, see 31 U.S.C. § 5112(d)(1) (1982 ed.), and in the language "One nation under God," as part of the Pledge of Allegiance to the American flag. That pledge is recited by many thousands of public school children -- and adults every year.Art galleries supported by public revenues display religious paintings of the 15th and 16th centuries, predominantly inspired by one religious faith. The National Gallery in Page 465 U. S. 677 Washington, maintained with Government support, for example, has long exhibited masterpieces with religious messages, notably the Last Supper, and paintings depicting the Birth of Christ, the Crucifixion, and the Resurrection, among many others with explicit Christian themes and messages. [Footnote 4] The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent -- not seasonal -- symbol of religion: Moses with the Ten Commandments. Congress has long provided chapels in the Capitol for religious worship and meditation.There are countless other illustrations of the Government's acknowledgment of our religious heritage and governmental sponsorship of graphic manifestations of that heritage. Congress has directed the President to proclaim a National Day of Prayer each year "on which [day] the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals." 36 U.S.C. § 169h. Our Presidents have repeatedly issued such Proclamations. [Footnote 5] Presidential Proclamations and messages have also issued to commemorate Jewish Heritage Week, Presidential Proclamation No. 4844, 3 CFR 30 (1982), and the Jewish High Holy Days, 17 Weekly Comp. of Pres.Doc. 1058 (1981). One cannot look at even this brief resume without finding that our history is pervaded by expressions of religious beliefs such as are found in Zorach. Equally pervasive is the evidence of accommodation of all faiths and all forms of religious expression, and hostility toward none. Through this accommodation, Page 465 U. S. 678 as Justice Douglas observed, governmental action has "follow[ed] the best of our traditions" and "respect[ed] the religious nature of our people." 343 U.S. at 3 343 U. S. 14.IIIThis history may help explain why the Court consistently has declined to take a rigid, absolutist view of the Establishment Clause. We have refused "to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history." Walz v. Tax Comm'n, 397 U. S. 664, 397 U. S. 671 (1970) (emphasis added). In our modern, complex society, whose traditions and constitutional underpinnings rest on and encourage diversity and pluralism in all areas, an absolutist approach in applying the Establishment Clause is simplistic, and has been uniformly rejected by the Court.Rather than mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith -- as an absolutist approach would dictate -- the Court has scrutinized challenged legislation or official conduct to determine whether, in reality, it establishes a religion or religious faith, or tends to do so. See Walz, supra, at 397 U. S. 669. Joseph Story wrote a century and a half ago:"The real object of the [First] Amendment was . . . to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government."3 J. Story, Commentaries on the Constitution of the United States 728 (1833).In each case, the inquiry calls for line-drawing; no fixed, per se rule can be framed. The Establishment Clause, like the Due Process Clauses, is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause "was to state an objective, not to write a statute." Walz, supra, at 397 U. S. 668. The line between permissible relationships and those barred by the Clause can no Page 465 U. S. 679 more be straight and unwavering than due process can be defined in a single stroke or phrase or test. The Clause erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." Lemon, 403 U.S. at 403 U. S. 614.In the line-drawing process, we have often found it useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. Lemon, supra. But we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area. See, e.g., Tilton v. Richardson, 403 U. S. 672, 403 U. S. 677-678 (1971); Nyquist, 413 U.S. at 413 U. S. 773. In two cases, the Court did not even apply the Lemon "test." We did not, for example, consider that analysis relevant in Marsh v. Chambers, 463 U. S. 783 (1983). Nor did we find Lemon useful in Larson v. Valente, 456 U. S. 228 (1982), where there was substantial evidence of overt discrimination against a particular church.In this case, the focus of our inquiry must be on the creche in the context of the Christmas season. See, e.g., Stone v. Graham, 449 U. S. 39 (1980) (per curiam); Abington School District v. Schempp, 374 U. S. 203 (1963). In Stone, for example, we invalidated a state statute requiring the posting of a copy of the Ten Commandments on public classroom walls. But the Court carefully pointed out that the Commandments were posted purely as a religious admonition, not"integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like."449 U.S. at 449 U. S. 42. Similarly, in Abington, although the Court struck down the practices in two States requiring daily Bible readings in public schools, it specifically noted that nothing in the Court's holding was intended to"indicat[e] that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently Page 465 U. S. 680 with the First Amendment."374 U.S. at 374 U. S. 225. Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause.The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations. See, e.g., Stone v. Graham, supra, at 449 U. S. 41; Epperson v. Arkansas, 393 U. S. 97, 393 U. S. 107-109 (1968); Abington School District v. Schempp, supra, at 374 U. S. 223-224; Engel v. Vitale, 370 U. S. 421, 370 U. S. 424-425 (1962). Even where the benefits to religion were substantial, as in Everson v. Board of Education, 330 U. S. 1 (1947); Board of Education v. Allen, 392 U. S. 236 (1968); Walz, supra; and Tilton, supra, we saw a secular purpose and no conflict with the Establishment Clause. Cf. Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982).The District Court inferred from the religious nature of the creche that the city has no secular purpose for the display. In so doing, it rejected the city's claim that its reasons for including the creche are essentially the same as its reasons for sponsoring the display as a whole. The District Court plainly erred by focusing almost exclusively on the creche. When viewed in the proper context of the Christmas Holiday season, it is apparent that, on this record, there is insufficient evidence to establish that the inclusion of the creche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message. In a pluralistic society, a variety of motives and purposes are implicated. The city, like the Congresses and Presidents, however, has principally taken note of a significant historical religious event long celebrated in the Western World. The creche in the display depicts the historical origins of this traditional event long recognized as a National Holiday. See Allen v. Hickel, 138 U.S.App.D.C. 31, 424 F.2d 944 Page 465 U. S. 681 (1970); Citizens Concerned for Separation of Church and State v. City and County of Denver, 526 F. Supp. 1310 (Colo.1981).The narrow question is whether there is a secular purpose for Pawtucket's display of the creche. The display is sponsored by the city to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes. [Footnote 6] The District Court's inference, drawn from the religious nature of the creche, that the city has no secular purpose was, on this record, clearly erroneous. [Footnote 7]The District Court found that the primary effect of including the creche is to confer a substantial and impermissible benefit on religion in general, and on the Christian faith in particular. Comparisons of the relative benefits to religion of different forms of governmental support are elusive and difficult to make. But to conclude that the primary effect of including the creche is to advance religion in violation of the Establishment Clause would require that we view it as more beneficial to and more an endorsement of religion, for example, than expenditure of large sums of public money for textbooks supplied throughout the country to students attending church-sponsored schools, Board of Education v. Allen, supra; [Footnote 8] expenditure of public funds for transportation of Page 465 U. S. 682 students to church-sponsored schools, Everson v. Board of Education, supra; [Footnote 9] federal grants for college buildings of church-sponsored institutions of higher education combining secular and religious education, Tilton v. Richardson, 403 U. S. 672 (1971); [Footnote 10] noncategorical grants to church-sponsored colleges and universities, Roemer v. Board of Public Works, 426 U. S. 736 (1976); and the tax exemptions for church properties sanctioned in Walz v. Tax Comm'n, 397 U. S. 664 (1970). It would also require that we view it as more of an endorsement of religion than the Sunday Closing Laws upheld in McGowan v. Maryland, 366 U. S. 420 (1961); [Footnote 11] the release time program for religious training in Zorach v. Clauson, 343 U. S. 306 (1952); and the legislative prayers upheld in Marsh v. Chambers, 463 U. S. 783 (1983).We are unable to discern a greater aid to religion deriving from inclusion of the creche than from these benefits and endorsements previously held not violative of the Establishment Clause. What was said about the legislative prayers in Marsh, supra, at 463 U. S. 792, and implied about the Sunday Closing Laws in McGowan is true of the city's inclusion of the creche: its "reason or effect merely happens to coincide or harmonize with the tenets of some . . . religions." See McGowan, supra, at 366 U. S. 442.This case differs significantly from Larkin v. Grendel's Den, Inc., supra, and McCollum, where religion was substantially Page 465 U. S. 683 aided. In Grendel's Den, important governmental power -- a licensing veto authority -- had been vested in churches. In McCollum, government had made religious instruction available in public school classrooms; the State had not only used the public school buildings for the teaching of religion, it had"afford[ed] sectarian groups an invaluable aid . . . [by] provid[ing] pupils for their religious classes through use of the State's compulsory public school machinery."333 U.S. at 333 U. S. 212. No comparable benefit to religion is discernible here.The dissent asserts some observers may perceive that the city has aligned itself with the Christian faith by including a Christian symbol in its display, and that this serves to advance religion. We can assume, arguendo, that the display advances religion in a sense; but our precedents plainly contemplate that, on occasion, some advancement of religion will result from governmental action. The Court has made it abundantly clear, however, that "not every law that confers an indirect,' `remote,' or `incidental' benefit upon [religion] is, for that reason alone, constitutionally invalid." Nyquist, 413 U.S. at 771; see also Widmar v. Vincent, 454 U. S. 263, 454 U. S. 273 (1981). Here, whatever benefit there is to one faith or religion or to all religions, is indirect, remote, and incidental; display of the creche is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as "Christ's Mass," or the exhibition of literally hundreds of religious paintings in governmentally supported museums.The District Court found that there had been no administrative entanglement between religion and state resulting from the city's ownership and use of the creche. 525 F. Supp. at 1179. But it went on to hold that some political divisiveness was engendered by this litigation. Coupled with its finding of an impermissible sectarian purpose and effect, this persuaded the court that there was "excessive entanglement." The Court of Appeals expressly declined to Page 465 U. S. 684 accept the District Court's finding that inclusion of the creche has caused political divisiveness along religious lines, and noted that this Court has never held that political divisiveness alone was sufficient to invalidate government conduct.Entanglement is a question of kind and degree. In this case, however, there is no reason to disturb the District Court's finding on the absence of administrative entanglement. There is no evidence of contact with church authorities concerning the content or design of the exhibit prior to or since Pawtucket's purchase of the creche. No expenditures for maintenance of the creche have been necessary; and since the city owns the creche, now valued at $200, the tangible material it contributes is de minimis. In many respects, the display requires far less ongoing, day-to-day interaction between church and state than religious paintings in public galleries. There is nothing here, of course, like the "comprehensive, discriminating, and continuing state surveillance" or the "enduring entanglement" present in Lemon, 403 U.S. at 403 U. S. 619-622.The Court of Appeals correctly observed that this Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct. And we decline to so hold today. This case does not involve a direct subsidy to church-sponsored schools or colleges, or other religious institutions, and hence no inquiry into potential political divisiveness is even called for, Mueller v. Allen, 463 U. S. 388, 463 U. S. 403-404, n. 11 (1983). In any event, apart from this litigation, there is no evidence of political friction or divisiveness over the creche in the 40-year history of Pawtucket's Christmas celebration. The District Court stated that the inclusion of the creche for the 40 years has been "marked by no apparent dissension," and that the display has had a "calm history." 525 F. Supp. at 1179. Curiously, it went on to hold that the political divisiveness engendered by this lawsuit was evidence of excessive entanglement. A litigant cannot, by the very act of commencing a lawsuit, however, create the appearance Page 465 U. S. 685 of divisiveness and then exploit it as evidence of entanglement.We are satisfied that the city has a secular purpose for including the creche, that the city has not impermissibly advanced religion, and that including the creche does not create excessive entanglement between religion and government.IVJUSTICE BRENNAN describes the creche as a "re-creation of an event that lies at the heart of Christian faith," post at 465 U. S. 711. The creche, like a painting, is passive; admittedly it is a reminder of the origins of Christmas. Even the traditional, purely secular displays extant at Christmas, with or without a creche, would inevitably recall the religious nature of the Holiday. The display engenders a friendly community spirit of goodwill in keeping with the season. The creche may well have special meaning to those whose faith includes the celebration of religious Masses, but none who sense the origins of the Christmas celebration would fail to be aware of its religious implications. That the display brings people into the central city, and serves commercial interests and benefits merchants and their employees, does not, as the dissent points out, determine the character of the display. That a prayer invoking Divine guidance in Congress is preceded and followed by debate and partisan conflict over taxes, budgets, national defense, and myriad mundane subjects, for example, has never been thought to demean or taint the sacredness of the invocation. [Footnote 12]Of course, the creche is identified with one religious faith, but no more so than the examples we have set out from prior cases in which we found no conflict with the Establishment Page 465 U. S. 686 Clause. See, e.g., McGowan v. Maryland, 366 U. S. 420 (1961); Marsh v. Chambers, 463 U. S. 783 (1983). It would be ironic, however, if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for 2 centuries, would so "taint" the city's exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol -- the creche -- at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and legislatures open sessions with prayers by paid chaplains, would be a stilted overreaction contrary to our history and to our holdings. If the presence of the creche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution.The Court has acknowledged that the "fears and political problems" that gave rise to the Religion Clauses in the 18th century are of far less concern today. Everson, 330 U.S. at 330 U. S. 8. We are unable to perceive the Archbishop of Canterbury, the Bishop of Rome, or other powerful religious leaders behind every public acknowledgment of the religious heritage long officially recognized by the three constitutional branches of government. Any notion that these symbols pose a real danger of establishment of a state church is farfetched indeed.VThat this Court has been alert to the constitutionally expressed opposition to the establishment of religion is shown in numerous holdings striking down statutes or programs as violative of the Establishment Clause. See, e.g., Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 (1948); Epperson v. Arkansas, 393 U. S. 97 (1968); Lemon v. Kurtzman, supra; Levitt v. Committee for Public Education & Religious Liberty, 413 U. S. 472 (1973); Committee Page 465 U. S. 687 for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 (1973); Meek v. Pittenger, 421 U. S. 349 (1975); and Stone v. Graham, 449 U. S. 39 (1980). The most recent example of this careful scrutiny is found in the case invalidating a municipal ordinance granting to a church a virtual veto power over the licensing of liquor establishments near the church. Larkin v. Grendel's Den, Inc., 459 U. S. 116 (1982). Taken together, these cases abundantly demonstrate the Court's concern to protect the genuine objectives of the Establishment Clause. It is far too late in the day to impose a crabbed reading of the Clause on the country.VIWe hold that, notwithstanding the religious significance of the creche, the city of Pawtucket has not violated the Establishment Clause of the First Amendment. [Footnote 13] Accordingly, the judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtLynch v. Donnelly, 465 U.S. 668 (1984)Lynch v. DonnellyNo. 82-1256Argued October 4, 1983Decided March 5, 1984465 U.S. 668SyllabusThe city of Pawtucket, R.I., annually erects a Christmas display in a park owned by a nonprofit organization and located in the heart of the city's shopping district. The display includes, in addition to such objects as a Santa Claus house, a Christmas tree, and a banner that reads "SEASONS GREETINGS," a creche or Nativity scene, which has been part of this annual display for 40 years or more. Respondents brought an action in Federal District Court, challenging the inclusion of the creche in the display on the ground that it violated the Establishment Clause of the First Amendment, as made applicable to the states by the Fourteenth Amendment. The District Court upheld the challenge and permanently enjoined the city from including the creche in the display. The Court of Appeals affirmed.Held: Notwithstanding the religious significance of the creche, Pawtucket has not violated the Establishment Clause. Pp. 465 U. S. 672-687.(a) The concept of a "wall" of separation between church and state is a useful metaphor, but is not an accurate description of the practical aspects of the relationship that in fact exists. The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. Anything less would require the "callous indifference," Zorach v. Clauson, 343 U. S. 306, 343 U. S. 314, that was never intended by the Establishment Clause. Pp. 465 U. S. 672-673.(b) This Court's interpretation of the Establishment Clause comports with the contemporaneous understanding of the Framers' intent. That neither the draftsmen of the Constitution, who were Members of the First Congress, nor the First Congress itself saw any establishment problem in employing Chaplains to offer daily prayers in the Congress is a striking example of the accommodation of religious beliefs intended by the Framers. Pp. 465 U. S. 673-674.(c) Our history is pervaded by official acknowledgment of the role of religion in American life, and equally pervasive is evidence of accommodation of all faiths and all forms of religious expression and hostility toward none. Pp. 465 U. S. 674-678. Page 465 U. S. 669(d) Rather than taking an absolutist approach in applying the Establishment Clause and mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith, this Court has scrutinized challenged conduct or legislation to determine whether, in reality, it establishes a religion or religious faith or tends to do so. In the line-drawing process called for in each case, it has often been found useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. But this Court has been unwilling to be confined to any single test or criterion in this sensitive area. Pp. 465 U. S. 678-679.(e) Here, the focus of the inquiry must be on the creche in the context of the Christmas season. Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause. Pp. 465 U. S. 679-680.(f) Based on the record in this case, the city has a secular purpose for including the creche in its Christmas display, and has not impermissibly advanced religion or created an excessive entanglement between religion and government. The display is sponsored by the city to celebrate the Holiday recognized by Congress and national tradition and to depict the origins of that Holiday; these are legitimate secular purposes. Whatever benefit to one faith or religion or to all religions inclusion of the creche in the display effects, is indirect, remote, and incidental, and is no more an advancement or endorsement of religion than the congressional and executive recognition of the origins of Christmas, or the exhibition of religious paintings in governmentally supported museums. This Court is unable to discern a greater aid to religion from the inclusion of the creche than from the substantial benefits previously held not violative of the Establishment Clause. As to administrative entanglement, there is no evidence of contact with church authorities concerning the content or design of the exhibition prior to or since the city's purchase of the creche. No expenditures for maintenance of the creche have been necessary, and, since the city owns the creche, now valued at $200, the tangible material it contributes is de minimis. Political divisiveness alone cannot serve to invalidate otherwise permissible conduct, and, in any event, apart from the instant litigation, there is no evidence of political friction or divisiveness over the creche in the 40-year history of the city's Christmas celebration. Pp. 465 U. S. 680-685.(g) It would be ironic if the inclusion of the creche in the display, as part of a celebration of an event acknowledged in the Western World for 20 centuries, and in this country by the people, the Executive Branch, Page 465 U. S. 670 Congress, and the courts for 2 centuries, would so "taint" the exhibition as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol while hymns and carols are sung and played in public places including schools, and while Congress and state legislatures open public sessions with prayers, would be an overreaction contrary to this Nation's history and this Court's holdings. Pp. 465 U. S. 685-686.691 F.2d 1029, reversed.BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 465 U. S. 687. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 465 U. S. 694. BLACKMUN, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 465 U. S. 726.

1974_73-5677

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.In 1960, the President, acting under the authority of Art. II § 2, cl. 1, of the Constitution, commuted petitioner Maurice L. Schick's sentence from death to life imprisonment, subject to the condition that he would not thereafter be eligible for parole. The petitioner challenges the validity of the condition, and we granted certiorari to determine the enforceability of that commutation as so conditioned.The pertinent facts are undisputed. In 1954 petitioner, then a master sergeant in the United States Army stationed in Japan, was tried before a court-martial for the brutal murder of an eight-year-old girl. He admitted the killing, but contended that he was insane at the time that he committed it. Medical opinion differed on this point. Defense experts testified that petitioner could neither distinguish between right and wrong nor adhere to the right when he killed the girl; a board of psychiatrists testifying on behalf of the prosecution concluded that petitioner was suffering from a nonpsychotic behavior disorder and was mentally aware of and able to control his actions. The court-martial rejected petitioner's defense, and he was sentenced to death on March 27, 1954, pursuant to Art. 118 of the Uniform Code of Military Justice, 10 U.S.C. § 918. The conviction and sentence were affirmed by an Army Board of Review and, following a remand for consideration of additional psychiatric reports, by the Court of Military Appeals. 7 U.S.C.M.A. 419, 22 C.M.R. 209 (1956).The case was then forwarded to President Eisenhower for final review as required by Art. 71(a) of the UCMJ, Page 419 U. S. 258 10 U.S.C. § 871(a). The President acted on March 25, 1960:"[P]ursuant to the authority vested in me as President of the United States by Article II, Section 2, Clause 1, of the Constitution, the sentence to be put to death is hereby commuted to dishonorable discharge, forfeiture of all pay and allowances becoming due on and after the date of this action, and confinement at hard labor for the term of his [petitioner's] natural life. This commutation of sentence is expressly made on the condition that the said Maurice L. Schick shall never have any rights, privileges, claims, or benefits arising under the parole and suspension or remission of sentence laws of the United States and the regulations promulgated thereunder governing Federal prisoners confined in any civilian or military penal institution (18 U.S.C. 4201 et seq., 10 U.S.C. 3662 et seq., 10 U.S.C. 871, 874), or any acts amendatory or supplementary thereof."App 35. The action of the President substituted a life sentence for the death sentence imposed in 1954, subject to the conditions described in the commutation. Petitioner was accordingly discharged from the Army and transferred to the Federal Penitentiary at Lewisburg, Pa. He has now served 20 years of his sentence. Had he originally received a sentence of life imprisonment, he would have been eligible for parole consideration in March, 1969; the condition in the President's order of commutation barred parole at any time.In 1971, while appeals challenging the validity of the death penalty were pending in this Court, petitioner filed suit in the United States District Court for the District of Columbia to require the members of the United States Board of Parole to consider him for parole. The District Page 419 U. S. 259 Court granted the Board of Parole's motion for summary judgment and the Court of Appeals affirmed, unanimously upholding the President's power to commute a sentence upon condition that the prisoner not be paroled. In addition, it rejected by a 2-1 vote petitioner's argument that Furman v. Georgia, 408 U. S. 238, decided on June 29, 1972, requires that he be resentenced to a simple life term, the alternative punishment for murder under Art. 118. 157 U.S.App.D.C. 263, 483 F.2d 1266. We affirm the judgment of the Court of Appeals.IWhen the death sentence was imposed in 1954, it was, as petitioner concedes, valid under the Constitution of the United States and subject only to final action by the President. Absent the commutation of March 25, 1960, the sentence could, and in all probability would, have been carried out prior to 1972. Only the President's action in commuting the sentence under his Art. II powers, on the conditions stipulated, prevented execution of the sentence imposed by the court-martial.The essence of petitioner's case is that, in light of this Court's holding in Furman v. Georgia, supra, which he could not anticipate, he made a "bad bargain" by accepting a no-parole condition in place of a death sentence. He does not cast his claim in those terms, of course. Rather, he argues that the conditions attached to the commutation put him in a worse position than he would have been in had he contested his death sentence -- and remained alive -- until the Furman case was decided 18 years after that sentence was originally imposed.It is correct that pending death sentences not carried out prior to Furman were thereby set aside without conditions such as were attached to petitioner's commutation. However, petitioner's death sentence was not pending in 1972, because it had long since been commuted. Page 419 U. S. 260 The question here is whether Furman must now be read as nullifying the condition attached to that commutation when it was granted in 1960. Alternatively, petitioner argues that, even in 1960, President Eisenhower exceeded his powers under Art. II by imposing a condition not expressly authorized by the Uniform Code of Military Justice.In sum, petitioner's claim gives rise to three questions: first, was the conditional commutation of his death sentence lawful in 1960; second, if so, did Furman retroactively void such conditions; and third, does that case apply to death sentences imposed by military courts where the asserted vagaries of juries are not present as in other criminal cases? Our disposition of the case will make it unnecessary to reach the third question.IIThe express power of Art. II, § 2, cl. 1, from which the Presidential power to commute criminal sentences derives, is to "grant Reprieves and Pardons . . . except in Cases of Impeachment." Although the authors of this clause surely did not act thoughtlessly, neither did they devote extended debate to its meaning. This can be explained in large part by the fact that the draftsmen were well acquainted with the English Crown authority to alter and reduce punishments as it existed in 1787. The history of that power, which was centuries old, reveals a gradual contraction to avoid its abuse and misuse. [Footnote 1] Changes were made as potential or actual abuses were perceived; for example, Parliament restricted the power to grant a pardon to one who transported a prisoner overseas to evade the Habeas Corpus Act, because to allow such pardons would drain the Great Writ of its vitality. There Page 419 U. S. 261 were other limits, but they were few in number and similarly specifically defined. [Footnote 2]At the time of the drafting and adoption of our Constitution, it was considered elementary that the prerogative of the English Crown could be exercised upon conditions:"It seems agreed, That the king may extend his mercy on what terms he pleases, and consequently may annex to his pardon any condition that he thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend."2 W. Hawkins, Pleas of the Crown 557 (6th ed. 1787).Various types of conditions, both penal and nonpenal in nature, were employed. [Footnote 3] For example, it was common for a pardon or commutation to be granted on condition that the felon be transported to another place, and indeed our own Colonies were the recipients of numerous subjects of "banishment." This practice was never questioned despite the fact that British subjects generally could not be forced to leave the realm without an Act of Parliament and banishment was rarely authorized as a punishment for crime. The idea later developed that the subject's consent to transportation was necessary, but in most cases he was simply "agreeing" that his life should be spared. Thus, the requirement of consent was a legal fiction, at best; in reality, by granting pardons or commutations conditional upon banishment, the Crown was exercising a power that was the equivalent and completely Page 419 U. S. 262 independent of legislative authorization. [Footnote 4] 11 W. Holdsworth, History of English Law 569-575 (1938). In short, by 1787, the English prerogative to pardon was unfettered except for a few specifically enumerated limitations.The history of our executive pardoning power reveals a consistent pattern of adherence to the English common law practice. The records of the Constitutional Convention, as noted earlier, reveal little discussion or debate on § 2, cl. 1, of Art 11. The first report of the Committee on Detail proposed that the pertinent clause read: "He [the President] shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment." [Footnote 5] This limitation as to impeachments tracked a similar restriction upon the English royal prerogative which existed in 1787. 4 W. Blackstone, Commentaries *399-400. An effort was made in the Convention to amend what finally emerged as § 2, cl. 1, and is reflected in James Madison's Journal for August 25, 1787, where the following note appears:"Mr. Sherman moved to amend the 'power to grant reprieves and pardons' so as to read 'to grant reprieves until the next session of the Senate, and pardons with consent of the Senate.'"2 M. Farrand, Records of the Federal Convention of 1787, p. 419 (1911). Page 419 U. S. 263 The proposed amendment was rejected by a vote of 8-1. Ibid. This action confirms that, as in England in 1787, the pardoning power was intended to be generally free from legislative control.Later, Edmund Randolph proposed to add the words "except cases of treason.'" Madison's description of Randolph's argument reflects familiarity with the English form and practice: "The prerogative of pardon in these [treason] cases was too great a trust." Id. at 626 (emphasis added). Randolph's proposal was rejected by a vote of 8-2, and the clause was adopted in its present form. Thereafter, Hamilton's Federalist No. 69 summarized the proposed § 2 powers, including the power to pardon, as "resembl[ing] equally that of the King of Great Britain and the Governor of New-York." The Federalist No. 69, p. 464 (J. Cooke ed.1961). [Footnote 6]We see, therefore, that the draftsmen of Art. II, § 2, spoke in terms of a "prerogative" of the President, which ought not be "fettered or embarrassed." In light of the English common law from which such language was Page 419 U. S. 264 drawn, the conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not, in themselves, offend the Constitution, but which are not specifically provided for by statute.The few cases decided in this area are consistent with the view of the power described above. In United States v. Wilson, 7 Pet. 150 (1833), this Court was confronted with the question of whether a pardon must be pleaded in order to be effective. Mr. Chief Justice Marshall held for the Court that it must, because that was the English common law practice:"As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance, we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it."Id. at 32 U. S. 160.Similarly, in Ex parte Wells, 18 How. 307 (1856), the petitioner had been convicted of murder and sentenced to be hanged. President Fillmore granted a pardon"'upon condition that he be imprisoned during his natural life; that is, the sentence of death is hereby commuted to imprisonment for life in the penitentiary of Washington.'"Id. at 59 U. S. 308. Later, Wells sought release by habeas corpus, contending that the condition annexed to the pardon and accepted by him was illegal. His argument was remarkably similar to that made by petitioner here:"[A] President granting such a pardon assumes a power not conferred by the constitution -- that he legislates a new punishment into existence, and sentences Page 419 U. S. 265 the convict to suffer it, in this way violating the legislative and judicial powers of the government, it being the province of the first, to enact laws for the punishment of offences . . . and that of the judiciary to sentence . . . according to them."Id. at 59 U. S. 309. However, the Court was not persuaded. After an extensive review of the English common law and that of the States, which need not be repeated here, it concluded:"The real language of [Art. II, § 2, cl. 1] is general, that is, common to the class of pardons, or extending the power to pardon to all kinds of pardons known in the law as such, whatever may be their denomination. We have shown that a conditional pardon is one of them. . . .""In this view of the constitution, by giving to its words their proper meaning, the power to pardon conditionally is not one of inference at all, but one conferred in terms.""* * * *" ". . . [T]he power to offer a condition, without ability to enforce its acceptance, when accepted by the convict, is the substitution, by himself, of a lesser punishment than the law has imposed upon him, and he cannot complain if the law executes the choice he has made."". . . And a man condemned to be hung cannot be permitted to escape the punishment altogether by pleading that he had accepted his life by duress per minas."Id. at 59 U. S. 314-315. In other words, this Court has long read the Constitution as authorizing the President to deal with individual cases by granting conditional pardons. The very essence of the pardoning power is to treat each case individually. Page 419 U. S. 266The teachings of Wilson and Wells have been followed consistently by this Court. See, e.g., Ex parte Grossman, 267 U. S. 87 (1925) (upholding a Presidential pardon of a contempt of court against an argument that it violated the principle of separation of powers); Ex parte Garland, 4 Wall. 333 (1867). Additionally, we note that Presidents throughout our history as a Nation have exercised the power to pardon or commute sentences upon conditions that are not specifically authorized by statute. Such conditions have generally gone unchallenged and, as in the Wells case, attacks have been firmly rejected by the courts. See 41 Op.Atty.Gen. 251 (1955). These facts are not insignificant for our interpretation of Art. II, § 2, cl. 1, because, as observed by Mr. Justice Holmes: "If a thing has been practised for two hundred years by common consent, it will need a strong case" to overturn it. Jackman v. Rosenbaum Co., 260 U. S. 22, 260 U. S. 31 (1922).IIIA fair reading of the history of the English pardoning power, from which our Art. II, § 2, cl. 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. The plain purpose of the broad power conferred by 2, cl. 1, was to allow plenary authority in the President to "forgive" the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable. If we were Page 419 U. S. 267 to accept petitioner's contentions, a commutation of his death sentence to 25 or 30 years would be subject to the same challenge as is now made, i.e., that parole must be available to petitioner because it is to others. That such an interpretation of 2, cl. 1, would in all probability tend to inhibit the exercise of the pardoning power and reduce the frequency of commutations is hardly open to doubt. We therefore hold that the pardoning power is an enumerated power of the Constitution, and that its limitations, if any, must be found in the Constitution itself. It would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutation which he sought.Petitioner's claim must therefore fail. The no-parole condition attached to the commutation of his death sentence is similar to sanctions imposed by legislatures such as mandatory minimum sentences or statutes otherwise precluding parole; [Footnote 7] it does not offend the Constitution. Similarly, the President's action derived solely from his Art. II powers; it did not depend upon Art. 118 of the UCMJ or any other statute fixing a death penalty for murder. It is not correct to say that the condition upon petitioner's commutation was "made possible only through the court-martial's imposition of the death sentence." Post at 419 U. S. 269-270. Of course, the President may not aggravate punishment; the sentence imposed by statute is therefore relevant to a limited extent. But, as shown, the President has constitutional power to attach conditions to his commutation of any sentence. Thus, even if Furman v. Georgia applies to the military, a matter which we need not and do not decide, it could Page 419 U. S. 268 not affect a conditional commutation which was granted 12 years earlier.We are not moved by petitioner's argument that it is somehow "unfair" that he be treated differently from persons whose death sentences were pending at the time that Furman was decided. Individual acts of clemency inherently call for discriminating choices because no two cases are the same. Indeed, as noted earlier, petitioner's life was undoubtedly spared by President Eisenhower's commutation order of March 25, 1960. Nor is petitioner without further remedies, since he may, of course, apply to the present President or future Presidents for a complete pardon, commutation to time served, or relief from the no-parole condition. We hold only that the conditional commutation of his death sentence was lawful when made and that intervening events have not altered its validity.Affirmed

U.S. Supreme CourtSchick v. Reed, 419 U.S. 256 (1974)Schick v. ReedNo. 73-5677Argued October 23, 1974Decided December 23, 1974419 U.S. 256SyllabusPetitioner, sentenced to death, under Art. 118 of the Uniform Code of Military Justice, by a court-martial for murder, attacked the validity of a Presidential commutation to life imprisonment (under which petitioner had served 20 years) conditioned on petitioner's never being paroled. The District Court granted respondents' motion for summary judgment. The Court of Appeals affirmed, additionally rejecting petitioner's contention that this Court's intervening decision in Furman v. Georgia, 408 U. S. 238, required that petitioner be resentenced to a life term with the possibility of parole, the alternative punishment for murder under Art. 118.Held: The conditional commutation of petitioner's death sentence was within the President's powers under Art. II, § 2, cl. 1, of the Constitution to "grant Reprieves and Pardons for Offenses against the United States." Pp. 419 U. S. 260-268.(a) The executive pardoning power under the Constitution, which has consistently adhered to the English common law practice, historically included the power to commute sentences on conditions not specifically authorized by statute. United States v. Wilson, 7 Pet. 150; Ex parte Wells, 18 How. 307. Pp. 419 U. S. 260-266.(b) Since the pardoning power derives from the Constitution alone, it cannot be modified, abridged, or diminished by any statute, including Art. 118, and Furman v. Georgia, supra, did not affect the conditional commutation of petitioner's sentence. Pp. 419 U. S. 266-268.157 U.S.App.D.C. 263, 483 F.2d 1266, affirmed.BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 419 U. S. 268. Page 419 U. S. 257

1979_79-4

MR. JUSTICE STEWART delivered the opinion of the Court.This suit was brought as a class action under 42 U.S.C. § 1983 in the District Court for the Northern District of Illinois to enjoin the enforcement of an Illinois statute that prohibits state medical assistance payments for all abortions except those "necessary for the preservation of the life of the woman seeking such treatment." [Footnote 1] The plaintiffs were Page 448 U. S. 361 two physicians who perform medically necessary abortions for indigent women, a welfare rights organization, and Jane Doe, an indigent pregnant woman who alleged that she desired an abortion that was medically necessary, but not necessary to save her life. The defendant was the Director of the Illinois Department of Public Aid, the agency charged with administering the State's medical assistance programs. [Footnote 2] Two other physicians intervened as defendants.The plaintiffs challenged the Illinois statute on both federal statutory and constitutional grounds. They asserted, first, that Title XIX of the Social Security Act, commonly known as the "Medicaid" Act, 42 U.S.C. § 1396 et seq. (1976 ed. and Supp. II), requires Illinois to provide coverage in its Medicaid plan for all medically necessary abortions, whether or not the life of the pregnant woman is endangered. Second, the plaintiffs argued that the public funding by the State of medically necessary services generally, but not of certain medically necessary abortions, violates the Equal Protection Clause of the Fourteenth Amendment. Page 448 U. S. 362The District Court initially held that it would abstain from considering the complaint until the state courts had construed the challenged statute. [Footnote 3] The plaintiffs appealed, and the Court of Appeals for the Seventh Circuit reversed. Zbaraz v. Quern, 572 F.2d 582. The appellate court held that abstention was inappropriate under the circumstances, and remanded the case for further proceedings, including consideration of the plaintiffs' motion for a preliminary injunction. On remand, the District Court certified two plaintiff classes -- (1) a class of all pregnant women eligible for the Illinois medical assistance programs who desire medically necessary, but not life-preserving, abortions, and (2) a class of all Illinois physicians who perform medically necessary abortions for indigent women and who are certified to obtain reimbursement under the Illinois medical assistance programs. Addressing the merits of the complaint, the District Court concluded that Title XIX and the regulations promulgated thereunder require a participating State under the Medicaid program to provide funding for all medically necessary abortions. According to the District Court, the so-called "Hyde Amendment" -- under which Congress has prohibited the use of federal funds to reimburse the costs of certain medically necessary abortions [Footnote 4] -- does not relieve a State of its independent Page 448 U. S. 363 obligation under Title XIX to provide Medicaid funding for all medically necessary abortions. Thus, the District Court permanently enjoined the enforcement of the Illinois statute insofar as it denied payments for abortions that are"medically necessary or medically indicated according to the professional medical judgment of a licensed physician in Illinois, exercised in light of all factors affecting a woman's health."The Court of Appeals again reversed. Zbaraz v. Quern, 596 F.2d 196. Reaching the same conclusion as had the Court of Appeals for the First Circuit in Preterm, Inc., v. Dukakis, 591 F.2d 121, the court held that the Hyde Amendment "alters Title XIX in such a way as to allow states to limit funding to the categories of abortions specified in that amendment." 596 F.2d at 199. It further held, however, that a participating State may not, consistent with Title XIX, withhold funding for those medically necessary abortions for which federal reimbursement is available under the Hyde Amendment. [Footnote 5] Accordingly, the case was remanded to the District Page 448 U. S. 364 Court with instructions that the permanent injunction be modified so as to require continued state funding only "for those abortions fundable under the Hyde Amendment." [Footnote 6] Id. at 202. The Court of Appeals also directed the District Court to proceed expeditiously to resolve the constitutional questions it had not reached. The District Court was specifically directed to consider"whether the Hyde Amendment, by limiting funding for abortions to certain circumstances even if such abortions are medically necessary, violates the Fifth Amendment."Ibid. (footnote omitted).On the second remand, the District Court notified the Attorney General of the United States that the constitutionality of an Act of Congress had been drawn into question, and the United States intervened, pursuant to 28 U.S.C. § 2403(a), to defend the constitutionality of the Hyde Amendment. [Footnote 7] Page 448 U. S. 365 Zbaraz v. Quern, 469 F. Supp. 1212, 1215, n. 3. In view of the fact that the plaintiffs had not challenged the Hyde Amendment, but rather only the Illinois statute, the District Court expressed misgivings about the propriety of passing on the constitutionality of the federal law. But noting that the same reasoning would apply in determining the constitutional validity of both the Illinois statute and the Hyde Amendment, the District Court observed:"Although we are not persuaded that the federal and state enactments are inseparable and would hesitate to inject into the proceeding the issue of the constitutionality of a law not directly under attack by plaintiffs, we are obviously constrained to obey the Seventh Circuit's mandate. Therefore, while our discussion of the constitutional questions will address only the Illinois statute, the same analysis applies to the Hyde Amendment and the relief granted will encompass both laws."Ibid.The District Court then concluded that both the Illinois statute and the Hyde Amendment are unconstitutional insofar as they deny funding for "medically necessary abortions prior to the point of fetal viability." Id. at 1221. If the public funding of abortions were restricted to those covered by the Hyde Amendment, the District Court thought that the effect would "be to increase substantially maternal morbidity and mortality among indigent pregnant women." Id. at 1220. The District Court held that the state and federal funding restrictions violate the constitutional standard of equal protection because"a pregnant woman's interest in her health so outweighs any possible state interest in the life of a nonviable fetus that, for a woman medically in need of an abortion, the state's interest is not legitimate. At the point of viability, however, 'the relative weights of the respective interests involved' shift, thereby legitimizing the state's interests. After that point, therefore, . . a state may withhold funding for medically necessary abortions that Page 448 U. S. 366 are not life-preserving, even though it funds all other medically necessary operations."Id. at 1221. Accordingly the District Court enjoined the Director of the Illinois Department of Public Aid from enforcing the Illinois statute to deny payment under the state medical assistance programs for medically necessary abortions prior to fetal viability. [Footnote 8] The District Court did not, however, enjoin any action by the United States.The intervening defendant physicians, the Director of the Illinois Department of Public Aid, and the United States each appealed directly to this Court, averring jurisdiction under 28 U.S.C. 1252. This Court consolidated the appeals and postponed further consideration of the question of jurisdiction until the hearing on the merits. 444 U.S. 962.IThe asserted basis for this Court's jurisdiction over these appeals is 28 U.S.C. 1252, which provides in relevant part:"Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States . . . holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof as such officer or employee, is a party."It is quite obvious that the literal requirements of § 1252 are satisfied in the present cases, for these appeals were taken from the final judgment of a federal court declaring unconstitutional an Act of Congress -- the Hyde Amendment -- in a Page 448 U. S. 367 civil action to which the United States was a party by reason of its intervention pursuant to 28 U.S.C. § 2403(a).It is equally clear, however, that the appellees and the United States are correct in asserting that the District Court in fact lacked jurisdiction to consider the constitutionality of the Hyde Amendment, for the court acted in the absence of a case or controversy sufficient to permit an exercise of judicial power under Art. III of the Constitution. None of the parties to these cases ever challenged the validity of the Hyde Amendment, and the appellees could have been awarded all the relief they sought entirely on the basis of the District Court's ruling with regard to the Illinois statute. [Footnote 9] The constitutional validity of the Hyde Amendment was interjected as an issue in these cases only by the erroneous mandate of the Court of Appeals. But, even though the District Court was simply following that mandate, the directive of the Court of Appeals could not create a case or controversy where none otherwise existed. It is clear, therefore, that the District Court exceeded its jurisdiction under Art. III in declaring the Hyde Amendment unconstitutional.The question thus arises whether the District Court's lack of jurisdiction in declaring the Hyde Amendment unconstitutional divests this Court of jurisdiction over these appeals. We think not. As the Court in McLucas v. DeChamplain, 421 U. S. 21, 421 U. S. 31-32, observed:"Our previous cases have recognized that this Court's jurisdiction under § 1252 in no way depends on whether the district court had jurisdiction. On the contrary, an appeal under § 1252 brings before us not only the constitutional question, but the whole case, including threshold Page 448 U. S. 368 issues of subject matter jurisdiction, and whether a three-judge court was required."(Citations omitted.) Thus, in the McLucas case, which involved an appeal under § 1252 from a single-judge District Court, this Court pretermitted the question whether the single-judge District Court had had jurisdiction to enter the challenged preliminary injunction, and instead resolved the appeal on the merits. It follows from McLucas that, notwithstanding the fact that the District Court was without jurisdiction to declare the Hyde Amendment unconstitutional, this Court has jurisdiction over these appeals, and thus may review the "whole case." [Footnote 10]IIDisposition of the merits of these appeals does not require extended discussion. Insofar as we have already concluded that the District Court lacked jurisdiction to declare the Hyde Amendment unconstitutional, that portion of its judgment must be vacated. See, e.g., United States v. Johnson, 319 U. S. 302; Muskrat v. United States, 219 U. S. 346. The remaining questions concern the Illinois statute. The appellees argue that (1) Title XIX requires Illinois to provide coverage in its state Medicaid plan for all medically necessary abortions, whether or not the life of the pregnant woman is endangered, and (2) the funding by Illinois of medically necessary services generally, but not of certain medically necessary Page 448 U. S. 369 abortions, violates the Equal Protection Clause of the Fourteenth Amendment. [Footnote 11] Both arguments are foreclosed by our decision today in Harris v. McRae, ante p. 448 U. S. 279. As to the appellees' statutory argument, we have concluded in McRae that a participating State is not obligated under Title XIX to pay for those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. As to their constitutional argument, we have concluded in McRae that the Hyde Amendment does not violate the equal protection component of the Fifth Amendment by withholding public funding for certain medically necessary abortions while providing funding for other medically necessary health services. It follows, for the same reasons, that the comparable funding restrictions in the Illinois statute do not violate the Equal Protection Clause of the Fourteenth Amendment.Accordingly, the judgment of the District Court is vacated, Page 448 U. S. 370 and the cases are remanded to that court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtWilliams v. Zbaraz, 448 U.S. 358 (1980)Williams v. ZbarazNo. 79-4Argued April 21, 1980Decided June 30, 1980*448 U.S. 358SyllabusAppellees brought a class action in Federal District Court under 42 U.S.C. § 1983 to enjoin, on both federal statutory and constitutional grounds, enforcement of an Illinois statute prohibiting state medical assistance payments for all abortions except those necessary to save the life of the woman seeking the abortion. The District Court, granting injunctive relief, held that Title XIX of the Social Security Act, which established the Medicaid program, and the regulations promulgated thereunder require a participating State under such program to provide funding for all medically necessary abortions, and that the so-called Hyde Amendment prohibiting the use of federal funds to reimburse the costs of certain medically necessary abortions does not relieve a State of its independent obligation under Title XIX to provide Medicaid funding for all medically necessary abortions. The Court of Appeals reversed, holding that the Hyde Amendment altered Title XIX in such a way as to allow States to limit funding to the categories of abortions specified in that Amendment, but that a participating State may not, consistent with Title XIX, withhold funding of those medically necessary abortions for which federal reimbursement is available under the Hyde Amendment, and the case was remanded to the District Court for modification of its injunction and with directions to consider the constitutionality of the Hyde Amendment. The District Court then held that both the Illinois statute and the Hyde Amendment violate the equal protection guarantee of the Constitution insofar as they deny funding for "medically necessary abortions prior to the point of fetal viability."Held:1. The District Court lacked jurisdiction to consider the constitutionality of the Hyde Amendment, for the court acted in the absence of a case or controversy sufficient to permit an exercise of judicial power under Art. III of the Constitution. None of the parties ever challenged the validity of the Hyde Amendment, and appellees could have been awarded all the relief sought entirely on the basis of the District Court's Page 448 U. S. 359 ruling as to the Illinois statute. The constitutionality of the Hyde Amendment was interjected as an issue only by the Court of Appeals' erroneous mandate, which could not create a case or controversy where none otherwise existed. P. 448 U. S. 367.2. Notwithstanding that the District Court had no jurisdiction to declare the Hyde Amendment unconstitutional, this Court has jurisdiction under 28 U.S.C. § 1252 over the "whole case," and thus may review the other issues preserved by these appeals. McLucas v. DeChamplain, 421 U. S. 21. Pp. 448 U. S. 367-368.3. A participating State is not obligated under Title XIX to pay for those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment. Harris v. McRae, ante at 448 U. S. 306-311. P. 448 U. S. 369.4. The funding restrictions in the Illinois statute, comparable to those in the Hyde Amendment, do not violate the Equal Protection Clause of the Fourteenth Amendment. Harris v. McRae, ante at 448 U. S. 324-326. P. 448 U. S. 369.469 F. Supp. 1212, vacated and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, ante p. 448 U. S. 329. MARSHALL, J., ante p. 448 U. S. 337, BLACKMUN, J., ante p. 448 U. S. 348, and STEVENS, J., ante p. 448 U. S. 349, filed dissenting opinions. Page 448 U. S. 360

1991_91-5771

district courts to go below the minimum required under the Guidelines if the Government files a "substantial assistance" motion. This case presents the question whether district courts may subject the Government's refusal to file such a motion to review for constitutional violations. We hold that they may, but that the petitioner has raised no claim to such review.On October 30, 1989, police searched the house of the petitioner, Harold Ray Wade, Jr., discovered 978 grams of cocaine, two handguns, and more than $22,000 in cash, and arrested Wade. In the aftermath of the search, Wade gave law enforcement officials information that led them to arrest another drug dealer. In due course, a federal grand jury indicted Wade for distributing cocaine and possessing cocaine with intent to distribute it, both in violation of 21 U. S. C. § 841(a)(1); for conspiring to do these things, in violation of § 846; and for using or carrying a firearm during, and in relation to, a drug crime, in violation of 18 U. S. C. § 924(c)(1). Wade pleaded guilty to all four counts.The presentence report put the sentencing range under the Guidelines for the drug offenses at 97 to 121 months, but added that Wade was subject to a 10-year mandatory minimum sentence, 21 U. S. C. § 841(b)(1)(B), narrowing the actual range to 120 to 121 months, see USSG § 5G 1.1(c)(2). The report also stated that both USSG § 2K2.4(a) and 18 U. S. C. § 924(c) required a 5-year sentence on the gun count. At the sentencing hearing in the District Court, Wade's lawyer urged the court to impose a sentence below the 10-year minimum for the drug counts to reward Wade for his assistance to the Government. The court responded that the Government had filed no motion as contemplated in 18 U. S. C. § 3553(e) and USSG § 5K1.1 for sentencing below the minimum, and ruled that, without such a motion, a court had no power to go beneath the minimum. Wade got a sentence of 180 months in prison.184In the United States Court of Appeals for the Fourth Circuit, Wade argued the District Court was in error to say that the absence of a Government motion deprived it of authority to impose a sentence below 10 years for the drug convictions. Wade lost this argument, 936 F.2d 169, 171 (1991), and failed as well on his back-up claim that the District Court was at least authorized to enquire into the Government's motives for filing no motion, the court saying that any such enquiry would intrude unduly upon a prosecutor's discretion, id., at 172. We granted certiorari, 502 U. S. 1003 (1991), and now affirm.The full text of 18 U. S. C. § 3553(e) is this:"Limited Authority to Impose a Sentence Below a Statutory Minimum.-Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code."And this is the relevant portion of USSG § 5K1.1:"Substantial Assistance to Authorities (Policy Statement)"Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines. "Because Wade violated federal criminal statutes that carry mandatory minimum sentences, this case implicates both 18 U. S. C. § 3553(e) and USSG § 5K1.1. Wade and the Government apparently assume that where, as here, the minimum185under the Guidelines is the same as the statutory minimum and the Government has refused to file any motion at all, the two provisions pose identical and equally burdensome obstacles. See Brief for Petitioner 9, n. 2; Brief for United States 11, n. 2. We are not, therefore, called upon to decide whether § 5K1.1 "implements" and thereby supersedes § 3553(e), see United States v. Ah-Kai, 951 F.2d 490, 493-494 (CA2 1991); United States v. Keene, 933 F.2d 711, 713-714 (CA9 1991), or whether the two provisions pose two separate obstacles, see United States v. Rodriguez-Morales, 958 F.2d 1441, 1443-1447 (CA8 1992).Wade concedes, as a matter of statutory interpretation, that § 3553(e) imposes the condition of a Government motion upon the district court's authority to depart, Brief for Petitioner 9-10, and he does not argue otherwise with respect to § 5K1.1. He does not claim that the Government-motion requirement is itself unconstitutional, or that the condition is superseded in this case by any agreement on the Government's behalf to file a substantial-assistance motion, cf. Santobello v. New York, 404 U. S. 257, 262-263 (1971); United States v. Conner, 930 F.2d 1073, 1075-1077 (CA4), cert. denied, 502 U. S. 958 (1991). Wade's position is consistent with the view, which we think is clearly correct, that in both § 3553(e) and § 5K1.1 the condition limiting the court's authority gives the Government a power, not a duty, to file a motion when a defendant has substantially assisted.Wade nonetheless argues, and again we agree, that a prosecutor's discretion when exercising that power is subject to constitutional limitations that district courts can enforce. Because we see no reason why courts should treat a prosecutor's refusal to file a substantial-assistance motion differently from a prosecutor's other decisions, see, e. g., Wayte v. United States, 470 U. S. 598, 608-609 (1985), we hold that federal district courts have authority to review a prosecutor's refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an uncon-186stitutional motive. Thus, a defendant would be entitled to relief if a prosecutor refused to file a substantial-assistance motion, say, because of the defendant's race or religion.It follows that a claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an evidentiary hearing. Nor would additional but generalized allegations of improper motive. See, e. g., United States v. Redondo-Lemos, 955 F.2d 1296,1302-1303 (CA9 1992); United States v. Jacob, 781 F.2d 643, 646-647 (CA8 1986); United States v. Gallegos-Curiel, 681 F.2d 1164, 1169 (CA9 1982) (Kennedy, J.); United States v. Berrios, 501 F.2d 1207, 1211 (CA2 1974). Indeed, Wade concedes that a defendant has no right to discovery or an evidentiary hearing unless he makes a "substantial threshold showing." Brief for Petitioner 26.Wade has failed to make one. He has never alleged, much less claimed to have evidence tending to show, that the Government refused to file a motion for suspect reasons such as his race or his religion. Instead, Wade argues now that the District Court thwarted his attempt to make quite different allegations on the record because it erroneously believed that no charge of impermissible motive could state a claim for relief. Hence, he now seeks an order of remand to allow him to develop a claim that the Government violated his constitutional rights by withholding a substantial-assistance motion "arbitrarily" or "in bad faith." See Brief for Petitioner 25. This, Wade says, the Government did by refusing to move because of "factors that are not rationally related to any legitimate state objective," see Reply Brief for Petitioner 4, although he does not specifically identify any such factors.As the Government concedes, see Brief for United States 26 (citing New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam)), Wade would be entitled to relief if the prosecutor's refusal to move was not rationally related to any legitimate Government end, cf. Chapman v. United States, 500 U. S. 453, 464-465 (1991), but his argument is still of no avail.187This is so because the record shows no support for his claim of frustration in trying to plead an adequate claim, and because his claim as presented to the District Court failed to rise to the level warranting judicial enquiry. The District Court expressly invited Wade's lawyer to state for the record what evidence he would introduce to support his position if the court were to conduct a hearing on the issue. App. 10. In response, his counsel merely explained the extent of Wade's assistance to the Government. Ibid. This, of course, was not enough, for although a showing of assistance is a necessary condition for relief, it is not a sufficient one. The Government's decision not to move may have been based not on a failure to acknowledge or appreciate Wade's help, but simply on its rational assessment of the cost and benefit that would flow from moving. Cf. United States v. Doe, 290 U. S. App. D. C. 65, 70, 934 F.2d 353, 358, cert. denied, 502 U. S. 896 (1991); United States v. La Guardia, 902 F.2d 1010, 1016 (CA1 1990).It is clear, then, that, on the present record, Wade is entitled to no relief, and that the judgment of the Court of Appeals must beAffirmed

OCTOBER TERM, 1991SyllabusWADE v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo.91-5771. Argued March 23, 1992-Decided May 18, 1992After his arrest on, inter alia, federal drug charges, petitioner Wade gave law enforcement officials information that led them to arrest another drug dealer. Subsequently, he pleaded guilty to the charges, and the District Court sentenced him to the lO-year minimum sentence required by 21 U. S. C. § 841(b)(1)(B) and the United States Sentencing Commission, Guidelines Manual (USSG). The court refused Wade's request that his sentence be reduced below the minimum to reward him for his substantial assistance to the Government, holding that 18 U. S. C. § 3553(e) and USSG § 5KU empower the district courts to make such a reduction only if the Government files a motion requesting the departure. The Court of Appeals affirmed, rejecting Wade's arguments that the District Court erred in holding that the absence of a Government motion deprived it of the authority to reduce his sentence and that the lower court was authorized to enquire into the Government's motives for failing to file a motion.Held:1. Federal district courts have the authority to review the Government's refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive. Since the parties assume that the statutory and Guidelines provisions pose identical and equally burdensome obstacles, this Court is not required to decide whether § 5K1.1 "implements" and thereby supersedes § 3553(e) or whether the provisions pose separate obstacles. In both provisions, the condition limiting the court's authority gives the Government a power, not a duty, to file a substantial-assistance motion. Nonetheless, a prosecutor's discretion when exercising that power is subject to constitutional limitations that district courts can enforce. Thus, a defendant would be entitled to relief if the prosecution refused to file a motion for a suspect reason such as the defendant's race or religion. However, neither a claim that a defendant merely provided substantial assistance nor additional but generalized allegations of improper motive will entitle a defendant to a remedy or even to discovery or an evidentiary hearing. A defendant has a right to the latter procedures only if he makes a substantial threshold showing of improper motive. Pp. 184-186.1822. Wade has failed to raise a claim of improper motive. He has never alleged or pointed to evidence tending to show that the Government refused to file a motion for suspect reasons. And he argues to no avail that, because the District Court erroneously believed that no impermissible motive charge could state a claim for relief, it thwarted his attempt to show that the Government violated his constitutional rights by withholding the motion arbitrarily or in bad faith. While Wade would be entitled to relief if the prosecutor's refusal to move was not rationally related to any legitimate Government end, the record here shows no support for his claim of frustration, and the claim as presented to the District Court failed to rise to the level warranting judicial enquiry. In response to the court's invitation to state what evidence he would introduce to support his claim, Wade merely explained the extent of his assistance to the Government. This is a necessary, but not a sufficient, condition for relief, because the Government's decision not to move may have been based simply on its rational assessment of the cost and benefit that would flow from moving. Pp. 186-187.936 F.2d 169, affirmed.SOUTER, J., delivered the opinion for a unanimous Court.J. Matthew Martin, by appointment of the Court, 502 U. S. 1028, argued the cause for petitioner. With him on the briefs was Eugene Gressman.Robert A. Long, Jr., argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Nina Goodman. *JUSTICE SOUTER delivered the opinion of the Court. Section 3553(e) of Title 18 of the United States Code empowers district courts, "[u]pon motion of the Government," to impose a sentence below the statutory minimum to reflect a defendant's "substantial assistance in the investigation or prosecution of another person who has committed an offense." Similarly, § 5K1.1 of the United States Sentencing Commission, Guidelines Manual (Nov. 1991) (USSG), permits*Charles B. Wayne filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae.183Full Text of Opinion

1982_81-1350

JUSTICE REHNQUIST delivered the opinion of the Court.Congress has provided that"[a]ny officer of the customs may at any time go on board of any vessel . . . at any place in the United States . . . and examine the manifest and other documents and papers . . . and to this end may hail and stop such vessel . . . and use all necessary force to compel compliance."46 Stat. 747, as amended, 19 U.S.C. § 1581(a). [Footnote 1] We are asked to decide whether the Fourth Amendment is offended when customs officials, acting pursuant to this Page 462 U. S. 581 statute and without any suspicion of wrongdoing, board for inspection of documents a vessel that is located in waters providing ready access to the open sea. [Footnote 2] Page 462 U. S. 582Near midday on March 6, 1980, customs officers, accompanied by Louisiana state policemen, were patroling the Calcasieu River Ship Channel, some 18 miles inland from the gulf coast, when they sighted the Henry Morgan II, a 40-foot sailboat, anchored facing east on the west side of the channel. The Calcasieu River Ship Channel is a north-south waterway connecting the Gulf of Mexico with Lake Charles, Louisiana. Lake Charles, located in the southwestern corner of Louisiana, is a designated Customs Port of Entry in the Houston, Texas Region. While there is access to the channel from Louisiana's Calcasieu Lake, the channel is a separate thoroughfare to the west of the lake which all vessels moving between Lake Charles and the open sea of the Gulf must traverse.Shortly after sighting the sailboat, the officers also observed a large freighter moving north in the channel. The freighter was creating a huge wake, and as it passed the Henry Morgan II, the wake caused the smaller vessel to rock violently from side to side. The patrol boat then approached the sailboat from the port side and passed behind its stern. Page 462 U. S. 583 On the stern the name of the vessel, the "Henry Morgan II," was displayed along with its home port, "Basilea." The officers sighted one man, respondent Hamparian, on deck. Officer Wilkins twice asked if the sailboat and crew were all right. Hamparian shrugged his shoulders in an unresponsive manner.Officer Wilkins, accompanied by Officer Dougherty of the Louisiana State Police, then boarded the Henry Morgan II and asked to see the vessel's documentation. Hamparian handed Officer Wilkins what appeared to be a request to change the registration of a ship from Swiss registry to French registry, written in French and dated February 6, 1980. It subsequently was discovered that the home port designation of "Basilea" was Latin for Basel, Switzerland; the vessel was, however, of French registry.While examining the document, Officer Wilkins smelled what he thought to be burning marihuana. Looking through an open hatch, Wilkins observed burlap-wrapped bales that proved to be marihuana. Respondent Villamonte-Marquez was on a sleeping bag atop of the bales. Wilkins arrested both Hamparian and Villamonte-Marquez and gave them Miranda warnings. A subsequent search revealed some 5,800 pounds of marihuana on the Henry Morgan II, stored in almost every conceivable place, including the forward, mid, and aft cabins, and under the seats in the open part of the vessel.A jury found respondents guilty of conspiring to import marihuana in violation of 21 U.S.C. § 963, importing marihuana in violation of 21 U.S.C. 6 952(a), conspiring to possess marihuana with intent to distribute in violation of 21 U.S.C. 6 846, and possessing marihuana with intent to distribute in violation of 21 U.S.C. 6 841(a)(1). The Court of Appeals for the Fifth Circuit reversed the judgment of conviction, finding that the officers' boarding of the Henry Morgan II "was not reasonable under the fourth amendment" because the boarding occurred in the absence of "a reasonable Page 462 U. S. 584 suspicion of a law violation." 652 F.2d 481, 488 (1981). Because of a conflict among the Circuits and the importance of the question presented as it affects the enforcement of customs laws, we granted certiorari. 457 U.S. 1104 (1982). [Footnote 3] We now reverse.In 1790 the First Congress enacted a comprehensive statute"to provide more effectually for the collection of the duties imposed by law on goods, wares and merchandise imported into the United States, and on the tonnage of ships or vessels."Act of Aug. 4, 1790, 1 Stat. 145. Section 31 of that Act provided in pertinent part as follows:"That it shall be lawful for all collectors, naval officers, surveyors, inspectors, and the officers of the revenue cutters herein after mentioned, to go on board of ships or vessels in any part of the United States, or within four leagues of the coast thereof, if bound to the United States, whether in or out of their respective districts, for the purposes of demanding the manifests aforesaid, and of examining and searching the said ships or vessels. . . ."1 Stat. 164. This statute appears to be the lineal ancestor of the provision of present law upon which the Government relies to sustain Page 462 U. S. 585 the boarding of the vessel in this case. Title 19 U.S.C. § 1581(a) provides that"[a]ny officer of the customs may at any time go on board of any vessel . . . at any place in the United States or within the customs waters . . . and examine the manifest and other documents and papers. . . ."The Government insists that the language of the statute clearly authorized the boarding of the vessel in this case. The respondents do not seriously dispute this contention, but contend that. even though authorized by statute, the boarding here violated the prohibition against unreasonable searches and seizures contained in the Fourth Amendment to the United States Constitution. We of course agree with respondents' argument that "no Act of Congress can authorize a violation of the Constitution." Almeida-Sanchez v. United States, 413 U. S. 266, 413 U. S. 272 (1973). But we also agree with the Government's contention that the enactment of this statute by the same Congress that promulgated the constitutional Amendments that ultimately became the Bill of Rights gives the statute an impressive historical pedigree. [Footnote 4] United Page 462 U. S. 586 States v. Ramsey, 431 U. S. 606 (1977). As long ago as the decision in Boyd v. United States, 116 U. S. 616 (1886), this Court said:"The seizure of stolen goods is authorized by the common law . . . and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this Page 462 U. S. 587 Act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as 'unreasonable,' and they are not embraced within the prohibition of the amendment."Id. at 116 U. S. 623 (emphasis supplied; footnote omitted).In holding that the boarding of the vessel without articulable suspicion violated the Fourth Amendment, the Court of Appeals relied on several of its own decisions and on our decision in United States v. Brignoni-Ponce, 422 U. S. 873 (1975), where we said:"Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country."Id. at 422 U. S. 884. We think that two later decisions also bear on the question before us.In United States v. Martinez-Fuerte, 428 U. S. 543 (1976), we upheld the authority of the Border Patrol to maintain permanent checkpoints at or near intersections of important roads leading away from the border at which a vehicle would be stopped for brief questioning of its occupants "even though there is no reason to believe the particular vehicle contains illegal aliens." Id. at 428 U. S. 545. Distinguishing our holding in United States v. Brignoni-Ponce, supra, we said:"A requirement that stops on major routes inland always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens. In particular, such a requirement would largely eliminate any deterrent to the conduct of Page 462 U. S. 588 well-disguised smuggling operations, even though smugglers are known to use these highways regularly."428 U.S. at 428 U. S. 557. Three Terms later, we held in Delaware v. Prouse, 440 U. S. 648 (1979), that"persons in automobiles on public roadways may not, for that reason alone, have their travel and privacy interfered with at the unbridled discretion of police officers."Id. at 440 U. S. 663. We added that alternative methods, such as spot checks that involve less intrusion, or questioning of all oncoming traffic at roadblock-type stops, would just as readily accomplish the State's objectives in furthering compliance with auto registration and safety laws.Our focus in this area of Fourth Amendment law has been on the question of the "reasonableness" of the type of governmental intrusion involved."Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."Delaware v. Prouse, supra, at 440 U. S. 654. See also Camara v. Municipal Court, 387 U. S. 523 (1967); Terry v. Ohio, 392 U. S. 1 (1968); Cady v. Dombrowski, 413 U. S. 433 (1973); United States v. Brignoni-Ponce, supra; United States v. Martinez-Fuerte, supra. It seems clear that, if the customs officers in this case had stopped an automobile on a public highway near the border, rather than a vessel in a ship channel, the stop would have run afoul of the Fourth Amendment because of the absence of articulable suspicion. See United States v. Brignoni-Ponce, supra. But under the overarching principle of "reasonableness" embodied in the Fourth Amendment, we think that the important factual differences between vessels located in waters offering ready access to the open sea and automobiles on principal thoroughfares in the border area are sufficient to require a different result here.The difference in outcome between the roving patrol stop in Brignoni-Ponce, supra, and the fixed checkpoint stop in Page 462 U. S. 589 Martinez-Fuerte, supra, was due in part to what the Court deemed the less intrusive and less awesome nature of fixed checkpoint stops when compared to roving patrol stops. And the preference for roadblocks, as opposed to random spot checks, expressed in Delaware v. Prouse, supra, reflects a like concern. But no reasonable claim can be made that permanent checkpoints would be practical on waters such as these where vessels can move in any direction at any time, and need not follow established "avenues," as automobiles must do. Customs officials do not have as a practical alternative the option of spotting all vessels which might have come from the open sea and herding them into one or more canals or straits in order to make fixed checkpoint stops. Smuggling and illegal importation of aliens by land may, and undoubtedly usually does, take place away from fixed checkpoints or ports of entry, but much of it is at least along a finite number of identifiable roads. But while eventually maritime commerce on the inland waters of the United States may funnel into rivers, canals, and the like, which are more analogous to roads and make a "roadblock" approach more feasible, such is not the case in waters providing ready access to the seaward border, beyond which is only the open sea.Respondents have asserted that permanent checkpoints could be established at various ports. But vessels having ready access to the open sea need never come to harbor. Should the captain want to avoid the authorities at port, he could carry on his activity by anchoring at some obscure location on the shoreline, or, as may have been planned in this case, the captain could transfer his cargo from one vessel to another. In cases involving such endeavors as fishing or water exploration, the crew of the vessel can complete its mission without any assistance.Quite apart from the aforementioned differences between waterborne vessels and automobiles traveling on highways, the documentation requirements with respect to vessels are significantly different from the system of vehicle licensing Page 462 U. S. 590 that prevails generally throughout the United States. A police officer patroling a highway can often tell merely by observing a vehicle's license plate and other outward markings whether the vehicle is currently in compliance with the requirements of state law. See Delaware v. Prouse, supra, at 440 U. S. 660-661. No comparable "license plates" or "stickers" are issued by the United States or by States to vessels. Both of the required exterior markings on documented vessels -- the name and hailing port -- as well as the numerals displayed by undocumented American boats, are marked on the vessel at the instance of the owner. Furthermore, in cases like this one, where the vessel is of foreign registry, it carries only the markings required by its home port. Here those markings indicated that the vessel was of Swiss registry, while in actuality it carried French documentation papers.The panoply of statutes and regulations governing maritime documentation are likewise more extensive and more complex than the typical state requirements for vehicle licensing; only some of the papers required need explicit mention here to illustrate the point. All American vessels of at least five tons and used for commercial purposes must have a "certificate of documentation." In addition, vessels engaged in certain trades must obtain special licenses. While pleasure vessels of this size are not required to be documented, they are eligible for federal registration. See 46 U.S.C. § 65 et seq. (1976 ed., Supp. V). Many of these vessels must also submit to periodic inspection by the Coast Guard and a "certificate of inspection" must be kept on the vessel at all times. 46 U.S.C. §§ 399, 400. Smaller American vessels cannot be issued federal documentation papers, but, under federal law, each such vessel with propulsion machinery must have a state-issued number displayed on a "certificate of number" that must be available for inspection at all times. 46 U.S.C. § 1470. Vessels not required to carry federal documentation papers also may be required to carry a state-issued safety certificate. 46 U.S.C. § 1471. Page 462 U. S. 591While foreign vessels are not required to carry federal documentation papers, they are required to have a "manifest," which must be delivered to customs officials immediately upon arrival in this country. 19 U.S.C. § 1439. If a foreign vessel wants to visit more than one customs district, it must obtain a "permit to proceed" at its first port of call, with the exception that a foreign yacht need not obtain such a permit if it has been issued a "cruising license." 46 U.S.C. § 313; 19 U.S.C. § 1435. Any vessel departing American waters for a foreign port must deliver its "manifest" to Customs and obtain clearance. 46 U.S.C. § 91.These documentation laws serve the public interest in many obvious ways, and respondents do not suggest that the public interest is less than substantially furthered by enforcement of these laws. They are the linchpin for regulation of participation in certain trades, such as fishing, salvaging, towing, and dredging, as well as areas in which trade is sanctioned, and for enforcement of various environmental laws. The documentation laws play a vital role in the collection of customs duties and tonnage duties. They allow for regulation of imports and exports assisting, for example, Government officials in the prevention of entry into this country of controlled substances, illegal aliens, prohibited medicines, adulterated foods, dangerous chemicals, prohibited agricultural products, diseased or prohibited animals, and illegal weapons and explosives. These interests are, of course, most substantial in areas such as the ship channel in this case, which connects the open sea with a Customs Port of Entry. Cf. United States v. Ramsey, 431 U. S. 606 (1977). Requests to check certificates of inspection play an obvious role in ensuring safety on American waterways. While inspection of a vessel's documents might not always conclusively establish compliance with United States shipping laws, more often than not it will. [Footnote 5] Page 462 U. S. 592While the need to make document checks is great, [Footnote 6] the resultant intrusion on Fourth Amendment interests is quite limited. While it does intrude on one's ability to make "free passage without interruption,'" United States v. Martinez-Fuerte, 428 U.S. at 428 U. S. 557-558 (quoting Carroll v. United States, 267 U. S. 132, 267 U. S. 154 (1925)), it involves only a brief detention where officials come on board, visit public areas of the vessel, and inspect documents. Cf. United States v. Brignoni-Ponce, 422 U.S. at 422 U. S. 880. "Neither the [vessel] nor its occupants are searched, and visual inspection of the [vessel] is limited to what can be seen without a search." United States v. Martinez-Fuerte, supra, at 428 U. S. 558. Any interference with interests protected by the Fourth Amendment is, of course, intrusive to some degree. But in this case, the interference created only a modest interruption.We briefly recapitulate the reasons, set forth above in greater detail, which lead us to conclude that the Government's boarding of the Henry Morgan II did not violate the Fourth Amendment. In a lineal ancestor to the statute at issue here the First Congress clearly authorized the suspicionless boarding of vessels, reflecting its view that such boardings are not contrary to the Fourth Amendment; this gives the statute before us an impressive historical pedigree. Random stops without any articulable suspicion of vehicles away from the border are not permissible under the Fourth Amendment, United States v. Brignoni-Ponce, supra; Delaware Page 462 U. S. 593 ware v. Prouse, 440 U. S. 648 (1979), but stops at fixed checkpoints or at roadblocks are. Ibid. The nature of waterborne commerce in waters providing ready access to the open sea is sufficiently different from the nature of vehicular traffic on highways as to make possible alternatives to the sort of "stop" made in this case less likely to accomplish the obviously essential governmental purposes involved. The system of prescribed outward markings used by States for vehicle registration is also significantly different from the system of external markings on vessels, and the extent and type of documentation required by federal law is a good deal more variable and more complex than are the state vehicle registration laws. The nature of the governmental interest in assuring compliance with documentation requirements, particularly in waters where the need to deter or apprehend smugglers is great, is substantial; the type of intrusion made in this case, while not minimal, is limited.All of these factors lead us to conclude that the action of the customs officers in stopping and boarding the Henry Morgan II was "reasonable," and was therefore consistent with the Fourth Amendment. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtUnited States v. Villamonte-Marquez, 462 U.S. 579 (1983)United States v. Villamonte-MarquezNo. 81-1350Argued February 23, 1983Decided June 17, 1983462 U.S. 579SyllabusTitle 19 U.S.C. § 1581(a) authorizes customs officers to board any vessel at any time and at any place in the United States to examine the vessel's manifest and other documents. Customs officers, while patroling a ship channel which connects the Gulf of Mexico with Lake Charles, La., a Customs Port of Entry, sighted an anchored, 40-foot sailboat. The wake of a passing vessel caused the sailboat to rock violently, and when one of the two respondents, who were aboard the vessel, shrugged his shoulders in an unresponsive manner when asked if the sailboat and crew were all right, one of the customs officers, accompanied by a Louisiana State Police officer, boarded the sailboat and asked to see the vessel's documentation. While examining a document, the customs officer smelled what he thought to be burning marihuana and, looking through an open hatch, saw burlap-wrapped bales that proved to be marihauna. Respondents were then arrested and given Miranda warnings, and a subsequent search revealed more marihuana stored throughout the vessel. Upon trial in Federal District Court, respondents were convicted of various federal drug offenses, but the Court of Appeals reversed, holding that the officers' boarding of the sailboat violated the Fourth Amendment because the boarding occurred in the absence of "a reasonable suspicion of a law violation."Held: The action of the customs officers in boarding the sailboat pursuant to § 1581(a) was "reasonable," and was therefore consistent with the Fourth Amendment. Although no Act of Congress can authorize a violation of the Constitution, in 1790, in a lineal ancestor to § 1581(a), the First Congress clearly authorized the suspicionless boarding of vessels by Government officers, reflecting its view that such boardings are not contrary to the Fourth Amendment, which was promulgated by the same Congress. While random stops of vehicles, without any articulable suspicion of unlawful conduct, away from the Nation's borders are not permissible under the Fourth Amendment, United States v. Brignoni-Ponce, 422 U. S. 873; Delaware v. Prouse, 440 U. S. 648, whereas vehicles stops at fixed checkpoints or at roadblocks are, United States v. Martinez-Fuerte, 428 U. S. 543; Delaware v. Prouse, supra, the nature of waterborne commerce in waters providing ready access to Page 462 U. S. 580 the open sea is sufficiently different from the nature of vehicular traffic on highways as to make possible alternatives to the sort of "stop" made in this case less likely to accomplish the obviously essential governmental purposes involved. The system of prescribed outward markings used by States for vehicle registration is also significantly different than the system of external markings on vessels, and the extent and type of vessel documentation required by federal law is a good deal more variable and complex than are the state vehicle registration laws. Moreover, governmental interests in assuring compliance with vessel documentation requirements, particularly in waters where the need to deter or apprehend smugglers is great, are substantial, whereas the type of intrusion made in this case, while not minimal, is limited. Pp. 462 U. S. 584-593.652 F.2d 481, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, and in Part I of which STEVENS, J., joined, post, p. 462 U. S. 593.

1977_77-453

MR. JUSTICE POWELL delivered the opinion of the Court.Employees of petitioner sought to distribute a union newsletter in nonworking areas of petitioner's property during nonworking time urging employees to support the union and discussing a proposal to incorporate the state "right-to-work" statute into the state constitution and a Presidential veto of an increase in the federal minimum wage. The newsletter also called on employees to take action to protect their interests as employees with respect to these two issues. The question presented is whether petitioner's refusal to allow the distribution violated § 8(a)(1) of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U.S.C. § 158(a)(1), by interfering with, restraining, or coercing employees' exercise of their right under § 7 of the Act, 29 U.S.C. § 157, to engage in "concerted activities for the purpose of . . . mutual aid or protection." Page 437 U. S. 559Petitioner is a company that manufactures paper products in Silsbee, Tex. Since 1954, petitioner's production employees have been represented by Local 801 of the United Paperworkers International Union. It appears that many, although not all, of petitioner's approximately 800 production employees are members of Local 801. Since Texas is a "right-to-work" State by statute, [Footnote 1] Local 801 is barred from obtaining an agreement with petitioner requiring all production employees to become union members.In March, 1974, officers of Local 801, seeking to strengthen employee support for the union and perhaps recruit new members in anticipation of upcoming contract negotiations with petitioner, decided to distribute a union newsletter to petitioner's production employees. [Footnote 2] The newsletter was divided into four sections. The first and fourth sections urged employees to support and participate in the union and, more generally, extolled the benefits of union solidarity. The second section encouraged employees to write their legislators to oppose incorporation of the state "right-to-work" statute into a revised state constitution then under consideration, warning that incorporation would "weake[n] Unions and improv[e] the edge business has at the bargaining table." The third section noted that the President recently had vetoed a bill to increase the federal minimum wage from $1.60 to $2.00 per hour, compared this action to the increase of prices and profits in the oil industry under administration policies, and admonished:"As working men and women we must defeat our enemies and Page 437 U. S. 560 elect our friends. If you haven't registered to vote, please do so today. [Footnote 3]"On March 26, 1974, Hugh Terry, an employee of petitioner and vice-president of Local 801, asked Herbett George, petitioner's assistant personnel director, for permission to distribute the newsletter to employees in the "clock alley" that leads to petitioner's time clocks. [Footnote 4] George doubted whether management would allow employees to "hand out propaganda like that," but agreed to check with his superiors. Leonard Menius, petitioner's personnel director, confirmed that petitioner would not allow employees to distribute the newsletter in clock alley. A few days later, George communicated this decision to Terry, but gave no reasons for it.On April 22, 1974, Boyd Young, president of Local 801, [Footnote 5] together with Terry and another employee, asked George whether employees could distribute the newsletter in any nonworking areas of petitioner's property other than clock alley. [Footnote 6] After conferring again with Menius, George reported Page 437 U. S. 561 that employees would not be allowed to do so, and that petitioner thought the union had other ways to communicate with employees. Local 801 then filed an unfair practice charge with the National Labor Relations Board (Board), alleging that petitioner's refusal to allow employees to distribute the newsletter in nonworking areas of petitioner's property during nonworking time interfered with, restrained, and coerced employees' exercise of their § 7 rights in violation of § 8(a)(1). [Footnote 7]At a hearing on the charge, Menius testified that he had no objection to the first and fourth sections of the newsletter. He had denied permission to distribute the newsletter because he "didn't see any way in which [the second and third sections were] related to our association with the Union." App. 19. The Administrative Law Judge held that although not all of the newsletter had immediate bearing on the relationship between petitioner and Local 801, distribution of all its contents was protected under § 7 as concerted activity for the "mutual aid or protection" of employees. Because petitioner had presented no evidence of "special circumstances" to justify a ban on the distribution of protected matter by employees in nonworking areas during nonworking time, the Administrative Law Judge held that petitioner had violated § 8(a)(1), and ordered petitioner to cease and desist from the violation. [Footnote 8] The Board Page 437 U. S. 562 affirmed the Administrative Law Judge's rulings, findings, and conclusions, and adopted his recommended order. 215 N.L.R.B. 271 (1974).The Court of Appeals enforced the order. 550 F.2d 198 (CA5 1977). It rejected petitioner's argument that the "mutual aid or protection" clause of § 7 protects only concerted activity by employees that is directed at conditions that their employer has the authority or power to change or control. Without expressing an opinion as to the full range of § 7 rights "when exercised off the employer's property," 550 F.2d at 202, the court purported to balance those rights against the employer's property rights, and concluded that"whatever is reasonably related to the employees' jobs or to their status or condition as employees in the plant may be the subject of such handouts as we treat of here, distributed on the plant premises in such a manner as not to interfere with the work. . . ."Id. at 203 (emphasis in original). The court further held that all of the material in the newsletter here met this test. Id. at 204-205. [Footnote 9]Because of apparent differences among the Courts of Appeals as to the scope of rights protected by the "mutual aid or protection" clause of § 7, see n 17, infra we granted certiorari. 434 U.S. 1045 (1978). We affirm. Page 437 U. S. 563IITwo distinct questions are presented. The first is whether, apart from the location of the activity, distribution of the newsletter is the kind of concerted activity that is protected from employer interference by §§ 7 and 8(a)(1) of the National Labor Relations Act. If it is, then the second question is whether the fact that the activity takes place on petitioner's property gives rise to a countervailing interest that outweighs the exercise of § 7 rights in that location. See Hudgens v. NLRB, 424 U. S. 507, 424 U. S. 521-523 (1976); Central Hardware Co. v. NLRB, 407 U. S. 539, 407 U. S. 542-545 (1972); NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 351 U. S. 112 (1956); Republic Aviation Corp. v. NLRB, 324 U. S. 793, 324 U. S. 797-798 (1945). We address these questions in turn.ASection 7 provides that"[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection. . . . [Footnote 10]"Petitioner contends that the activity here is not within the "mutual aid or protection" language, because it does not relate to a "specific dispute" between employees and their own employer "over an issue which the employer has the right or power to affect." Brief for Petitioner 13. In support of its position, petitioner asserts that the term "employees" in § 7 refers only to employees of a particular employer, so that only activity by employees on behalf of themselves or other employees Page 437 U. S. 564 of the same employer is protected. Id. at 18, 24. Petitioner also argues that the term "collective bargaining" in § 7 "indicates a direct bargaining relationship, whereas other mutual aid or protection' must refer to activities of a similar nature. . . ." Id. at 24. Thus, in petitioner's view, under § 7, "the employee is only protected for activity within the scope of the employment relationship." Id. at 13. Petitioner rejects the idea that § 7 might protect any activity that could be characterized as "political," and suggests that the discharge of an employee who engages in any such activity would not violate the Act. [Footnote 11]We believe that petitioner misconceives the reach of the "mutual aid or protection" clause. The "employees" who may engage in concerted activities for "mutual aid or protection" are defined by § 2(3) of the Act, 29 U.S.C. § 152(3), to"include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise. . . ."This definition was intended to protect employees when they engage in otherwise proper concerted activities in support of employees of employers other than their own. [Footnote 12] In recognition of this intent, the Board and the courts long have held that the "mutual aid or protection" clause encompasses such activity. [Footnote 13] Petitioner's Page 437 U. S. 565 argument on this point ignores the language of the Act and its settled construction.We also find no warrant for petitioner's view that employees lose their protection under the "mutual aid or protection" clause when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship. The 74th Congress knew well enough that labor's cause often is advanced on fronts other than collective bargaining and grievance settlement within the immediate employment context. It recognized this fact by choosing, as the language of § 7 makes clear, to protect concerted activities for the somewhat broader purpose of "mutual aid or protection," as well as for the narrower purposes of "self-organization" and "collective bargaining." [Footnote 14] Thus, it has been held that the "mutual aid or Page 437 U. S. 566 protection" clause protects employees from retaliation by their employers when they seek to improve working conditions through resort to administrative and judicial forums, [Footnote 15] and that employees' appeals to legislators to protect their interests as employees are within the scope of this clause. [Footnote 16] To hold that activity of this nature is entirely unprotected -- irrespective of location or the means employed -- would leave employees Page 437 U. S. 567 open to retaliation for much legitimate activity that could improve their lot as employees. As this could "frustrate the policy of the Act to protect the right of workers to act together to better their working conditions,'" NLRB v. Washington Aluminum Co., 370 U. S. 9, 370 U. S. 14 (1962), we do not think that Congress could have intended the protection of § 7 to be as narrow as petitioner insists. [Footnote 17]It is true, of course, that some concerted activity bears a less immediate relationship to employees' interests as employees than other such activity. We may assume that, at some point, Page 437 U. S. 568 the relationship becomes so attenuated that an activity cannot fairly be deemed to come within the "mutual aid or protection" clause. It is neither necessary nor appropriate, however, for us to attempt to delineate precisely the boundaries of the "mutual aid or protection" clause. That task is for the Board to perform in the first instance as it considers the wide variety of cases that come before it. [Footnote 18] Republic Aviation Corp. v. NLRB, 324 U.S. at 324 U. S. 798; Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 313 U. S. 194 (1941). To decide this case, it is enough to determine whether the Board erred in holding that distribution of the second and third sections of the newsletter is for the purpose of "mutual aid or protection." Page 437 U. S. 569The Board determined that distribution of the second section, urging employees to write their legislators to oppose incorporation of the state "right-to-work" statute into a revised state constitution, was protected because union security is "central to the union concept of strength through solidarity," and "a mandatory subject of bargaining in other than right-to-work states." 215 N.L.R.B. at 274. The newsletter warned that incorporation could affect employees adversely "by weakening Unions and improving the edge business has at the bargaining table." The fact that Texas already has a "right-to-work" statute does not render employees' interest in this matter any less strong, for, as the Court of Appeals noted, it is "one thing to face a statutory scheme which is open to legislative modification or repeal," and "quite another thing to face the prospect that such a scheme will be frozen in a concrete constitutional mandate." 550 F.2d at 205. We cannot say that the Board erred in holding that this section of the newsletter bears such a relation to employees' interests as to come within the guarantee of the "mutual aid or protection" clause. See cases cited in n 16, supra.The Board held that distribution of the third section, criticizing a Presidential veto of an increase in the federal minimum wage and urging employees to register to vote to "defeat our enemies and elect our friends," was protected despite the fact that petitioner's employees were paid more than the vetoed minimum wage. It reasoned that the "minimum wage inevitably influences wage levels derived from collective bargaining, even those far above the minimum," and that"concern by [petitioner's] employees for the plight of other employees might gain support for them at some future time when they might have a dispute with their employer."215 N.L.R.B. at 274 (internal quotation marks omitted). We think that the Board acted within the range of its discretion in so holding. Few topics are of such immediate concern to employees as the level of their wages. The Board was Page 437 U. S. 570 entitled to note the widely recognized impact that a rise in the minimum wage may have on the level of negotiated wages generally, [Footnote 19] a phenomenon that would not have been lost on petitioner's employees. The union's call, in the circumstances of this case, for these employees to back persons who support an increase in the minimum wage, and to oppose those who oppose it, fairly is characterized as concerted activity for the "mutual aid or protection" of petitioner's employees and of employees generally.In sum, we hold that distribution of both the second and the third sections of the newsletter is protected under the "mutual aid or protection" clause of § 7. [Footnote 20]BThe question that remains is whether the Board erred in holding that petitioner's employees may distribute the newsletter in nonworking areas of petitioner's property during nonworking time. Consideration of this issue must begin with the Court's decisions in Republic Aviation Corp. v. NLRB, supra, and NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956). In Republic Aviation, the Court upheld the Board's ruling that an employer may not prohibit its employees from Page 437 U. S. 571 distributing union organizational literature in nonworking areas of its industrial property during nonworking time, absent a showing by the employer that a ban is necessary to maintain plant discipline or production. This ruling obtained even though the employees had not shown that distribution off the employer's property would be ineffective. 324 U.S. at 324 U. S. 798-799, 324 U. S. 801. In the Court's view, the Board had reached an acceptable"adjustment between the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishment."Id. at 324 U. S. 797-798. [Footnote 21]In Babcock & Wilcox, on the other hand, nonemployees sought to enter an employer's property to distribute union organizational literature. The Board applied the rule of Republic Aviation in this situation, but the Court held that there is a distinction "of substance" between "rules of law applicable to employees and those applicable to nonemployees." 351 U.S. at 351 U. S. 113. The difference was that the nonemployees in Babcock & Wilcox sought to trespass on the employer's property, whereas the employees in Republic Aviation did not. Striking a balance between § 7 organizational rights and an employer's right to keep strangers from entering on its property, the Court held that the employer in Babcock & Wilcox was entitled to prevent"nonemployee distribution of union literature [on its property] if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message. . . ."Id. at 351 U. S. 112. The Court recently has emphasized the distinction between the two cases:"A wholly different balance was Page 437 U. S. 572 struck when the organizational activity was carried on by employees already rightfully on the employer's property, since the employer's management interests, rather than his property interests, were there involved."Hudgens v. NLRB, 424 U.S. at 424 U. S. 521-522, n. 10; see also Central Hardware Co. v. NLRB, 407 U.S. at 407 U. S. 543-545.It is apparent that the instant case resembles Republic Aviation rather closely. Here, as there, employees sought to distribute literature in nonworking areas of their employer's industrial property during nonworking time. Here, as there, the employer has not attempted to show that distribution would interfere with plant discipline or production. And here, as there, distribution of the newsletter clearly would be protected by § 7 against employer discipline if it took place off the employer's property. The only possible ground of distinction is that part of the newsletter in this case does not address purely organizational matters, but rather concerns other activity protected by § 7. The question, then, is whether this difference required the Board to apply a different rule here than it applied in Republic Aviation.Petitioner contends that the Board must distinguish among distributions of protected matter by employees on an employer's property on the basis of the content of each distribution. Echoing its earlier argument, petitioner urges that the Republic Aviation rule should not be applied if a distribution"does not involve a request for any action on the part of the employer, or does not concern a matter over which the employer has any degree of control. . . ."Brief for Petitioner 28. In petitioner's view, distribution of any other matter protected by § 7 would be an "unnecessary intrusio[n] on the employer's property rights," id. at 29, in the absence of a showing by employees that no alternative channels of communication with fellow employees are available.We hold that the Board was not required to adopt this view in the case at hand. In the first place, petitioner's reliance on Page 437 U. S. 573 its property right is largely misplaced. Here, as in Republic Aviation, petitioner's employees are "already rightfully on the employer's property," so that, in the context of this case, it is the "employer's management interests, rather than [its] property interests," that primarily are implicated. Hudgens, supra at 424 U. S. 521-522, n. 10. As already noted, petitioner made no attempt to show that its management interests would be prejudiced in any way by the exercise of § 7 rights proposed by its employees here. Even if the mere distribution by employees of material protected by § 7 can be said to intrude on petitioner's property rights in any meaningful sense, the degree of intrusion does not vary with the content of the material. Petitioner's only cognizable property right in this respect is in preventing employees from bringing literature onto its property and distributing it there -- not in choosing which distributions protected by § 7 it wishes to suppress. [Footnote 22]On the other side of the balance, it may be argued that the employees' interest in distributing literature that deals with matters affecting them as employees, but not with self-organization or collective bargaining, is so removed from the central concerns of the Act as to justify application of a different rule than in Republic Aviation. Although such an argument may have force in some circumstances, see Hudgens, supra at 424 U. S. 522, the Board, to date, generally has chosen not to engage in such refinement of its rules regarding the distribution Page 437 U. S. 574 of literature by employees during nonworking time in nonworking areas of their employers' property. We are not prepared to say in this case that the Board erred in the view it took.It is apparent that the complexity of the Board's rules and the difficulty of the Board's task might be compounded greatly if it were required to distinguish not only between literature that is within and without the protection of § 7, but also among subcategories of literature within that protection. In addition, whatever the strength of the employees' § 7 interest in distributing particular literature, the Board is entitled to view the intrusion by employees on the property rights of their employer as quite limited in this context as long as the employer's management interests are adequately protected. The Board also properly may take into account the fact that the plant is a particularly appropriate place for the distribution of § 7 material, because it"is the one place where [employees] clearly share common interests and where they traditionally seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees."Gale Products, 142 N.L.R.B. 1246, 1249 (1963).We need not go so far in this case, however, as to hold that the Republic Aviation rule properly is applied to every in-plant distribution of literature that falls within the protective ambit of § 7. This is a new area for the Board and the courts which has not yet received mature consideration. [Footnote 23] It may be that the Page 437 U. S. 575 "nature of the problem, as revealed by unfolding variant situations," requires "an evolutionary process for its rational response, not a quick, definitive formula as a comprehensive answer." Electrical Workers v. NLRB, 366 U. S. 667, 366 U. S. 674 (1961). For this reason, we confine our holding to the facts of this case.Petitioner concedes that its employees were entitled to distribute a substantial portion of this newsletter on its property. In addition, as we have held above, the sections to which petitioner objected concern activity which petitioner, in the absence of a countervailing interest of its own, is not entitled to suppress. Yet petitioner made no attempt to show that its management interests would be prejudiced in any manner by distribution of these sections, and, in our view, any incremental intrusion on petitioner's property rights from their distribution together with the other sections would be minimal. Moreover, it is undisputed that the union undertook the distribution in order to boost its support and improve its bargaining position in upcoming contract negotiations with petitioner. Thus, viewed in context, the distribution was closely tied to vital concerns of the Act. [Footnote 24] In these circumstances, Page 437 U. S. 576 we hold that the Board did not err in applying the Republic Aviation rule to the facts of this case. The judgment of the Court of Appeals therefore isAffirmed

U.S. Supreme CourtEastex, Inc. v. NLRB, 437 U.S. 556 (1978)Eastex, Inc. v. National Labor Relations BoardNo. 77-453Argued April 25, 1978Decided June 22, 1978437 U.S. 556SyllabusEmployees of petitioner corporation sought to distribute a four-part union newsletter in nonworking areas of petitioner's plant during nonworking time. The first and fourth sections urged employees to support the union and extolled union solidarity. The second section encouraged employees to write their legislators to oppose incorporation of the state "right-to-work" statute into a revised state constitution. The third section criticized a Presidential veto of an increase in the federal minimum wage and urged employees to register to vote to "defeat our enemies and elect our friends." After representatives of petitioner refused to permit the requested distribution, the union filed an unfair labor practice charge with the National Labor Relations Board (NLRB), alleging that petitioner's refusal interfered with the employees' exercise of their rights under § 7 of the National Labor Relations Act (Act), which provides that"[e]mployees shall have the right . . . to engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ,"and thus violated § 8(a)(1). Following a hearing, at which petitioner contended that the second and third sections of the letter were not protected by § 7 because they did not relate to petitioner's association with the union, the NLRB ordered petitioner to cease and desist from the violation, having determined that both those sections of the newsletter came within the ambit of § 7's protection. The second section of the newsletter was held to be protected because union security is "central to the union concept of strength through solidarity" and "a mandatory subject of bargaining in other than right-to-work states," and the fact that Texas already has a "right-to-work" statute was held not to diminish employees' interest in the matter. The third section was held to be protected even though petitioner's employees were paid more than the vetoed minimum wage, on the ground that the "minimum wage inevitably influences wage levels derived from collective bargaining, even those far above the minimum," and that the petitioner's employees' concern "for the plight of other employees might gain support for them at some future time when they might have a dispute with their employer." The Court of Appeals enforced Page 437 U. S. 557 the NLRB's order, rejecting petitioner's contention that § 7's "mutual aid or protection" clause protects only concerted activity by employees that is directed at conditions that their employer has the authority or power to change or control, and that the second and third sections of the newsletter did not constitute such activity. The court concluded that"whatever is reasonably related to the employees' jobs or to their status or condition as employees in the plant may be the subject of such handouts as we treat of here, distributed on the plant premises in such a manner as not to interfere with the work . . . ,"and that the material in the newsletter met that test.Held:1. Distribution of the challenged second and third sections of the newsletter is protected under the "mutual aid or protection" clause of § 7. Pp. 437 U. S. 563-570.(a) The Act's definition of "employee" in § 2(3) was intended to protect employees when they engage in otherwise proper concerted activities in support of employees of employers other than their own, and it has long been held that "mutual aid or protection" encompasses such activity. Pp. 437 U. S. 564-565.(b) Employees do not lose their protection under the "mutual aid or protection" clause when they seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship, and the NLRB did not err in holding that distribution of the challenged parts of the newsletter was for the purpose of "mutual aid or protection." Pp. 437 U. S. 565-570.2. The NLRB did not err in holding that petitioner's employees may distribute the newsletter in nonworking areas of petitioner's property during nonworking time. The fact that the distribution is to take place on petitioner's property does not give rise to a countervailing interest that petitioner can assert outweighing the exercise of § 7 rights by its employees in that location. Under the circumstances of this case, the NLRB was not required to apply a rule different from the one it applied in Republic Aviation Corp. v. NLRB, 324 U. S. 793, to the effect that an employer may not prohibit his employees from distributing union literature (in that case, organizational material) in nonworking areas of industrial property during nonworking time, absent a showing by the employer that a ban is necessary to maintain plant discipline or production. Here, as in Republic Aviation, petitioner's employees were "already rightfully on the employer's property," so that in the context of this case it is the employer's management interests, rather than its property interests that primarily are implicated. Petitioner, however, made no attempt to show that its management interests would be prejudiced Page 437 U. S. 558 by distribution of the sections to which it objected, and any incremental intrusion on its property rights from their distribution together with the other sections would be minimal. In addition, viewed in context, the distribution was closely tied to vital concerns of the Act. Pp. 437 U. S. 570-576. 550 F.2d 198, affirmed.POWELL, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 437 U. S. 578. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 437 U. S. 579.

1989_89-640

JUSTICE SCALIA delivered the opinion of the Court.In this, case we must decide whether respondent, the National Wildlife Federation (hereinafter respondent), is a proper party to challenge actions of the Federal Government relating to certain public lands.IRespondent filed this action in 1985 in the United States District Court for the District of Columbia against petitioners the United States Department of the Interior, the Secretary of the Interior, and the Director of the Bureau of Land Management (BLM), an agency within the Department. In its amended complaint, respondent alleged that petitioners had violated the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, 43 U.S.C. § 1701 et seq. (1982 ed.), the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., and § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706, in the course of administering what the complaint called the "land withdrawal review program" of the BLM. Some background information concerning that program is necessary to an understanding of this dispute.In various enactments, Congress empowered United States citizens to acquire title to, and rights in, vast portions of federally owned land. See, e.g., Rev.Stat. § 2319, 30 U.S.C. § 22 et seq. (Mining Law of 1872); 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. (Mineral Leasing Act of 1920). Congress also provided means, however, for the Executive to remove public lands from the operation of these statutes. The Pickett Act, 36 Stat. 847, 43 U.S.C. § 141 (1970 ed.), repealed, 90 Stat. 2792 (1976), authorized the President"at any time in his discretion, temporarily [to] withdraw from settlement, location, sale, or entry any of the Page 497 U. S. 876 public lands of the United States . . . and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes. . . ."Acting under this and under the Taylor Grazing Act of 1934, ch. 865, 48 Stat. 1269, as amended, 43 U.S.C. § 315f, which gave the Secretary of the Interior authority to "classify" public lands as suitable for either disposal or federal retention and management, President Franklin Roosevelt withdrew all unreserved public land from disposal until such time as they were classified. Exec.Order No. 6910, Nov. 26, 1934; Exec.Order No. 6964, Feb. 5, 1935. In 1936, Congress amended § 7 of the Taylor Grazing Act to authorize the Secretary of the Interior "to examine and classify any lands" withdrawn by these orders and by other authority as "more valuable or suitable" for other uses"and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public land laws."49 Stat.1976, 43 U.S.C. § 315f (1982 ed.). The amendment also directed that"[s]uch lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry."Ibid. The 1964 classification and multiple use Act, 78 Stat. 986, 43 U.S.C. §§ 1411-1418 (1970 ed.) (expired 1970), gave the Secretary further authority to classify lands for the purpose of either disposal or retention by the Federal Government.Management of the public lands under these various laws became chaotic. The Public Land Law Review Commission, established by Congress in 1964 to study the matter, 78 Stat. 982, determined in 1970 that "virtually all" of the country's public domain, see Public Land Law Review Commission, One Third of the Nation's Land 52 (1970) -- about one-third of the land within the United States, see id. at 19 -- had been withdrawn or classified for retention; that it was difficult to determine "the extent of existing Executive withdrawals and the degree to which withdrawals overlap each other," id. at 52; and that there were inadequate records to show the purposes Page 497 U. S. 877 of withdrawals and the permissible public uses. Ibid. Accordingly, it recommended that"Congress should provide for a careful review of (1) all Executive withdrawals and reservations, and (2) BLM retention and disposal classifications under the Classification and Multiple Use Act of 1964."Ibid.In 1976, Congress passed the FLPMA, which repealed many of the miscellaneous laws governing disposal of public land, 43 U.S.C. § 1701 et seq. (1982 ed.), and established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to "prepare and maintain on a continuing basis an inventory of all public lands and their resource and other values," § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could "modify or terminate any such classification consistent with such land use plans." § 1712(d). It also authorized the Secretary to "make, modify, extend or revoke" withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 western States, § 1714 (1)(1), and to"determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs,"§ 1714(1)(2). The activities undertaken by the BLM to comply with these various provisions constitute what respondent's amended complaint styles the BLM's "land withdrawal review program," which is the subject of the current litigation.Pursuant to the directives of the FLPMA, the petitioners engage in a number of different types of administrative action with respect to the various tracts of public land within the United States. First, the BLM conducts the review and recommends the determinations required by § 1714(1) with Page 497 U. S. 878 respect to withdrawals in 11 western States. The law requires the Secretary to"report his recommendations to the President, together with statements of concurrence or nonconcurrence submitted by the heads of the departments or agencies which administer the lands;"the President must in turn submit this report to the Congress, together with his recommendation "for action by the Secretary, or for legislation." § 1714(1)(2). The Secretary has submitted a number of reports to the President in accordance with this provision.Second, the Secretary revokes some withdrawals under § 204(a) of the Act, which the Office of the Solicitor has interpreted to give the Secretary the power to process proposals for revocation of withdrawals made during the "ordinary course of business." U.S. Dept. of the Interior, Memorandum from the Office of the Solicitor, Oct. 30, 1980. These revocations are initiated in one of three manners: an agency or department holding a portion of withdrawn land that it no longer needs may file a notice of intention to relinquish the lands with the BLM. Any member of the public may file a petition requesting revocation. And in the case of lands held by the BLM, the BLM itself may initiate the revocation proposal. App. 56-57. Withdrawal revocations may be made for several reasons. Some are effected in order to permit sale of the land; some for record-clearing purposes, where the withdrawal designation has been superseded by congressional action or overlaps with another withdrawal designation; some in order to restore the land to multiple use management pursuant to § 102(a)(7) of the FLPMA, 43 U.S.C. § 1701(a)(7) (1982 ed.). App. 142-145.Third, the Secretary engages in the ongoing process of classifying public lands, either for multiple-use management, 43 CFR pt. 2420 (1988), for disposal, pt. 2430, or for other uses. Classification decisions may be initiated by petition, pt. 2450, or by the BLM itself, pt. 2460. Regulations promulgated Page 497 U. S. 879 by the Secretary prescribe the procedures to be followed in the case of each type of classification determination.IIIn its complaint, respondent averred generally that the reclassification of some withdrawn lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty. Respondent alleged that petitioners, in the course of administering the Nation's public lands, had violated the FLPMA by failing to"develop, maintain, and, when appropriate, revise land use plans which provide by tracts or areas for the use of the public lands,"43 U.S.C. § 1712(a) (1982 ed.); failing to submit recommendations as to withdrawals in the 11 western States to the President, § 1714(1); failing to consider multiple uses for the disputed lands, § 1732(a), focusing inordinately on such uses as mineral exploitation and development; and failing to provide public notice of decisions, §§ 1701(a)(5), 1712(c)(9), 1712(f), and 1739(e). Respondent also claimed that petitioners had violated NEPA, which requires federal agencies to"include in every recommendation or report on . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on . . . the environmental impact of the proposed action."42 U.S.C. § 4332(2)(C) (1982 ed.). Finally, respondent alleged that all of the above actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and should therefore be set aside pursuant to § 10(e) of the APA, 5 U.S.C. § 706. Appended to the amended complaint was a schedule of specific land status determinations, which the complaint stated had been "taken by defendants since January 1, 1981"; each was identified by a listing in the Federal Register.In December, 1985, the District Court granted respondent's motion for a preliminary injunction prohibiting petitioners from"[m]odifying, terminating or altering any withdrawal, classification, or other designation governing the protection Page 497 U. S. 880 of lands in the public domain that was in effect on January 1, 1981,"and from "[t]aking any action inconsistent" with any such withdrawal, classification, or designation. App. to Pet. for Cert. 185a. In a subsequent order, the court denied petitioners' motion under Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to demonstrate standing to challenge petitioners' actions under the APA, 5 U.S.C. § 702. App. to Pet. for Cert. 183a. The Court of Appeals affirmed both orders. National Wildlife Federation v. Burford, 266 U.S.App.D.C. 241, 835 F.2d 305 (1987). As to the motion to dismiss, the Court of Appeals found sufficient to survive the motion the general allegation in the amended complaint that respondent's members used environmental resources that would be damaged by petitioners' actions. See id. at 248, 835 F.2d at 312. It held that this allegation, fairly read along with the balance of the complaint, both identified particular land-status actions that respondent sought to challenge -- since at least some of the actions complained of were listed in the complaint's appendix of Federal Register references -- and asserted harm to respondent's members attributable to those particular actions. Id. at 249, 835 F.2d at 313. To support the latter point, the Court of Appeals pointed to the affidavits of two of respondent's members, Peggy Kay Peterson and Richard Erman, which claimed use of land "in the vicinity" of the land covered by two of the listed actions. Thus, the Court of Appeals concluded, there was"concrete indication that [respondent's] members use specific lands covered by the agency's Program and will be adversely affected by the agency's actions,"and the complaint was "sufficiently specific for purposes of a motion to dismiss." Ibid. On petitions for rehearing, the Court of Appeals stood by its denial of the motion to dismiss, and directed the parties and the District Court "to proceed with this litigation with dispatch." National Wildlife Federation v. Burford, 269 U.S.App.D.C. 271, 272, 844 F.2d 889, 890 (1988). Page 497 U. S. 881Back before the District Court, petitioners again claimed, this time by means of a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure (which motion had been outstanding during the proceedings before the Court of Appeals), that respondent had no standing to seek judicial review of petitioners' actions under the APA. After argument on this motion, and in purported response to the court's postargument request for additional briefing, respondent submitted four additional member affidavits pertaining to the issue of standing. The District Court rejected them as untimely, vacated the injunction, and granted the Rule 56 motion to dismiss. It noted that neither its earlier decision nor the Court of Appeals' affirmance controlled the question, since both pertained to a motion under Rule 12(b). It found the Peterson and Erman affidavits insufficient to withstand the Rule 56 motion, even as to judicial review of the particular classification decisions to which they pertained. And even if they had been adequate for that limited purpose, the court said, they could not support respondent's attempted APA challenge to "each of the 1250 or so individual classification terminations and withdrawal revocations" effected under the land withdrawal review program. National Wildlife Federation v. Burford, 699 F. Supp. 327, 332 (DC 1988).This time the Court of Appeals reversed. National Wildlife Federation v. Burford, 278 U.S.App.D.C. 320, 878 F.2d 422 (1989). It both found the Peterson and Erman affidavits sufficient in themselves, and held that it was an abuse of discretion not to consider the four additional affidavits as well. [Footnote 1] The Court of Appeals also concluded that Page 497 U. S. 882 standing to challenge individual classification and withdrawal decisions conferred standing to challenge all such decisions under the land withdrawal review program. We granted certiorari. 493 U.S. 1042 (1990).IIIAWe first address respondent's claim that the Peterson and Erman affidavits alone suffice to establish respondent's right to judicial review of petitioners' actions. Respondent does not contend that either the FLPMA or NEPA provides a private right of action for violations of its provisions. Rather, respondent claims a right to judicial review under § 10(a) of the APA, which provides:"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."5 U.S.C. § 702.This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof" to which he is entitled. The meaning of "agency action" for purposes of § 702 is set forth in 5 U.S.C. § 551(13), see 5 U.S.C. § 701(b)(2) ("For the purpose of this chapter . . . agency action' ha[s] the meanin[g] given . . . by section 551 of this title"), which defines the term as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action." See 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review" (emphasis added)). Page 497 U. S. 883Second, the party seeking review under § 702 must show that he has "suffer[ed] legal wrong" because of the challenged agency action, or is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute." Respondent does not assert that it has suffered "legal wrong," so we need only discuss the meaning of "adversely affected or aggrieved . . . within the meaning of a relevant statute." As an original matter, it might be thought that one cannot be "adversely affected or aggrieved within the meaning" of a statute unless the statute in question uses those terms (or terms like them) -- as some pre-APA statutes in fact did when conferring rights of judicial review. See, e.g., Federal Communications Act of 1934, § 402(b)(2), 48 Stat. 1093, as amended, 47 U.S.C. § 402(b)(6) (1982 ed.). We have long since rejected that interpretation, however, which would have made the judicial review provision of the APA no more than a restatement of preexisting law. Rather, we have said that, to be "adversely affected or aggrieved . . . within the meaning" of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the "zone of interests" sought to be protected by the statutory provision whose violation forms the legal basis for his complaint. See Clarke v. Securities Industry Assn., 479 U. S. 388, 479 U. S. 396-397 (1987). Thus, for example, the failure of an agency to comply with a statutory provision requiring "on the record" hearings would assuredly have an adverse effect upon the company that has the contract to record and transcribe the agency's proceedings; but since the provision was obviously enacted to protect the interests of the parties to the proceedings, and not those of the reporters, that company would not be "adversely affected within the meaning" of the statute.BBecause this case comes to us on petitioners' motion for summary judgment, we must assess the record under the Page 497 U. S. 884 standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Rule 56(c) states that a party is entitled to summary judgment in his favor"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."Rule 56(e) further provides:"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."As we stated in Celotex Corp. v. Catrett, 477 U. S. 317 (1986),"the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."Id. at 477 U. S. 322. Where no such showing is made,"[t]he moving party is 'entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof."Id. at 477 U. S. 323.These standards are fully applicable when a defendant moves for summary judgment, in a suit brought under § 702, on the ground that the plaintiff has failed to show that he is "adversely affected or aggrieved by agency action within the meaning of a relevant statute." The burden is on the party seeking review under § 702 to set forth specific facts (even though they may be controverted by the Government) showing that he has satisfied its terms. Sierra Club v. Morton, Page 497 U. S. 885 405 U. S. 727, 405 U. S. 740 (1972). Celotex made clear that Rule 56 does not require the moving party to negate the elements of the nonmoving party's case; to the contrary,"regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied."477 U.S. at 477 U. S. 323.CWe turn, then, to whether the specific facts alleged in the two affidavits considered by the District Court raised a genuine issue of fact as to whether an "agency action" taken by petitioners caused respondent to be "adversely affected or aggrieved . . . within the meaning of a relevant statute." We assume, since it has been uncontested, that the allegedly affected interests set forth in the affidavits -- "recreational use and aesthetic enjoyment" -- are sufficiently related to the purposes of respondent association that respondent meets the requirements of § 702 if any of its members do. Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333 (1977).As for the "agency action" requirement, we think that each of the affidavits can be read, as the Court of Appeals believed, to complain of a particular "agency action" as that term is defined in § 551. The parties agree that the Peterson affidavit, judging from the geographic area it describes, must refer to that one of the BLM orders listed in the appendix to the complaint that appears at 49 Fed.Reg.19904-19905 (1984), an order captioned W-6228 and dated April 30, 1984, terminating the withdrawal classification of some 4,500 acres of land in that area. See, e.g., Brief for Petitioners 8-10. The parties also appear to agree, on the basis of similar deduction, that the Erman affidavit refers to the BLM order listed in the appendix that appears at 47 Fed.Reg. 7232-7233 Page 497 U. S. 886 (1982), an order captioned Public Land Order 6156 and dated February 18, 1982.We also think that whatever "adverse effect" or "aggrievement" is established by the affidavits was "within the meaning of the relevant statute" -- i.e., met the "zone of interests" test. The relevant statute, of course, is the statute whose violation is the gravamen of the complaint -- both the FLPMA and NEPA. We have no doubt that "recreational use and aesthetic enjoyment" are among the sorts of interests those statutes were specifically designed to protect. The only issue, then, is whether the facts alleged in the affidavits showed that those interests of Peterson and Erman were actually affected.The Peterson affidavit averred:"My recreational use and aesthetic enjoyment of federal lands, particularly those in the vicinity of South Pass-Green Mountain, Wyoming, have been and continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In particular, the South Pass-Green Mountain area of Wyoming has been opened to the staking of mining claims and oil and gas leasing, an action which threatens the aesthetic beauty and wildlife habitat potential of these lands."App. to Pet. for Cert.191a. Erman's affidavit was substantially the same as Peterson's, with respect to all except the area involved; he claimed use of land "in the vicinity of Grand Canyon National Park, the Arizona Strip (Kanab Plateau), and the Kanab National Forest." Id. at 187a.The District Court found the Peterson affidavit inadequate for the following reasons:"Peterson . . . claims that she uses federal lands in the vicinity of the South Pass-Green Mountain area of Wyoming for recreational purposes and for aesthetic enjoyment, and that her recreational and aesthetic enjoyment Page 497 U. S. 887 has been and continues to be adversely affected as the result of the decision of BLM to open it to the staking of mining claims and oil and gas leasing. . . . This decision [W-6228] opened up to mining approximately 4500 acres within a two million acre area, the balance of which, with the exception of 2000 acres, has always been open to mineral leasing and mining. . . . There is no showing that Peterson's recreational use and enjoyment extends to the particular 4500 acres covered by the decision to terminate classification to the remainder of the two million acres affected by the termination. All she claims is that she uses lands 'in the vicinity.' The affidavit, on its face, contains only a bare allegation of injury, and fails to show specific facts supporting the affiant's allegation."699 F. Supp. at 331 (emphasis in original).The District Court found the Erman affidavit "similarly flawed.""The magnitude of Erman's claimed injury stretches the imagination. . . . [T]he Arizona Strip consists of all lands in Arizona north and west of the Colorado River on approximately 5.5 million acres, an area one-eighth the size of the State of Arizona. Furthermore, virtually the entire Strip is, and for many years has been, open to uranium and other metalliferous mining. The revocation of withdrawal [in Public Land Order 6156] concerned only non-metalliferous mining in the western one-third of the Arizona Strip, an area possessing no potential for nonmetalliferous mining."Id. at 332.The Court of Appeals disagreed with the District Court's assessment as to the Peterson affidavit (and thus found it unnecessary to consider the Erman affidavit) for the following reason:"If Peterson was not referring to lands in this 4500-acre affected area, her allegation of impairment to her use and enjoyment would be meaningless, or perjurious. . . . Page 497 U. S. 888 [T]he trial court overlooks the fact that, unless Peterson's language is read to refer to the lands affected by the Program, the affidavit is, at best, a meaningless document.""At a minimum, Peterson's affidavit is ambiguous regarding whether the adversely affected lands are the ones she uses. When presented with ambiguity on a motion for summary judgment, a District Court must resolve any factual issues of controversy in favor of the non-moving party. . . . This means that the District Court was obliged to resolve any factual ambiguity in favor of NWF, and would have had to assume, for the purposes of summary judgment, that Peterson used the 4500 affected acres."278 U.S.App.D.C. at 329, 878 F.2d at 431.That is not the law. In ruling upon a Rule 56 motion, "a District Court must resolve any factual issues of controversy in favor of the nonmoving party" only in the sense that, where the facts specifically averred by that party contradict facts specifically averred by the movant, the motion must be denied. That is a world apart from "assuming" that general averments embrace the "specific facts" needed to sustain the complaint. As set forth above, Rule 56(e) provides that judgment "shall be entered" against the nonmoving party unless affidavits or other evidence "set forth specific facts showing that there is a genuine issue for trial." The object of this provision is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Cf. Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 477 U. S. 249 (1986) ("[T]he plaintiff could not rest on his allegations of a conspiracy to get to a jury without any significant probative evidence tending to support the complaint'"), quoting First National Bank of Ariz. v. Cities Service Co., 391 U. S. 253, 391 U. S. 290 (1968). Rather, the purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side's case to demand at least one Page 497 U. S. 889 sworn averment of that fact before the lengthy process of litigation continues.At the margins, there is some room for debate as to how "specific" must be the "specific facts" that Rule 56(e) requires in a particular case. But where the fact in question is the one put in issue by the § 702 challenge here -- whether one of respondent's members has been, or is threatened to be, "adversely affected or aggrieved" by Government action -- Rule 56(e) is assuredly not satisfied by averments which state only that one of respondent's members uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to "presume" the missing facts because, without them, the affidavits would not establish the injury that they generally allege. That converts the operation of Rule 56 to a circular promenade: plaintiff's complaint makes general allegation of injury; defendant contests through Rule 56 existence of specific facts to support injury; plaintiff responds with affidavit containing general allegation of injury, which must be deemed to constitute averment of requisite specific facts, since otherwise allegation of injury would be unsupported (which is precisely what defendant claims it is).Respondent places great reliance, as did the Court of Appeals, upon our decision in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669 (1973). The SCRAP opinion, whose expansive expression of what would suffice for § 702 review under its particular facts, has never since been emulated by this Court, is of no relevance here, since it involved not a Rule 56 motion for summary judgment, but a Rule 12(b) motion to dismiss on the pleadings. The latter, unlike the former, presumes that general allegations embrace those specific facts that are necessary to support the claim. Conley v. Gibson, 355 U. S. 41, 355 U. S. 45-46 (1957). Page 497 U. S. 890IVWe turn next to the Court of Appeals' alternative holding that the four additional member affidavits proffered by respondent in response to the District Court's briefing order established its right to § 702 review of agency action.AIt is impossible that the affidavits would suffice, as the Court of Appeals held, to enable respondent to challenge the entirety of petitioners' so-called "land withdrawal review program." That is not an "agency action" within the meaning of § 702, much less a "final agency action" within the meaning of § 704. The term "land withdrawal review program" (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable "agency action" -- much less a "final agency action" -- than a "weapons procurement program" of the Department of Defense or a "drug interdiction program" of the Drug Enforcement Administration. As the District Court explained, the "land withdrawal review program" extends to, currently at least, "1250 or so individual classification terminations and withdrawal revocations." 699 F. Supp. at 332. [Footnote 2] Page 497 U. S. 891Respondent alleges that violation of the law is rampant within this program -- failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular "agency action" that causes it harm. Some statutes permit broad regulations to serve as the "agency action," and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action "ripe" for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which, as a practical matter, requires the plaintiff to adjust his conduct immediately. Such agency action is "ripe" for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U. S. 136, 387 U. S. 152-154 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U. S. 167, 387 U. S. 171-173 (1967). Cf. 387 U. S. S. 892� Goods Assn., Inc. v. Gardner,@ 387 U. S. 158, 387 U. S. 164-166 (1967).)In the present case, the individual actions of the BLM identified in the six affidavits can be regarded as rules of general applicability (a "rule" is defined in the APA as agency action of "general or particular applicability and future effect," 5 U.S.C. § 551(4) (emphasis added)) announcing, with respect to vast expanses of territory that they cover, the agency's intent to grant requisite permission for certain activities, to decline to interfere with other activities, and to take other particular action if requested. It may well be, then, that even those individual actions will not be ripe for challenge until some further agency action or inaction more immediately harming the plaintiff occurs. [Footnote 3] But it is at least entirely Page 497 U. S. 893 certain that the flaws in the entire "program" -- consisting principally of the many individual actions referenced in the complaint, and presumably actions yet to be taken as well -- cannot be laid before the courts for wholesale correction under the APA, simply because one of them that is ripe for review adversely affects one of respondent's members. [Footnote 4] Page 497 U. S. 894The case-by-case approach that this requires is understandably frustrating to an organization such as respondent, which has as its objective across-the-board protection of our Nation's wildlife and the streams and forests that support it. But this is the traditional, and remains the normal, mode of operation of the courts. Except where Congress explicitly provides for our correction of the administrative process at a higher level of generality, we intervene in the administration of the laws only when, and to the extent that, a specific "final agency action" has an actual or immediately threatened effect. Toilet Goods Assn., 387 U.S. at 387 U. S. 164-166. Such an intervention may ultimately have the effect of requiring a regulation, a series of regulations, or even a whole "program" to be revised by the agency in order to avoid the unlawful result that the court discerns. But it is assuredly not as swift or as immediately far-reaching a corrective process as those interested in systemic improvement would desire. Until confided to us, however, more sweeping actions are for the other branches.BThe Court of Appeals' reliance upon the supplemental affidavits was wrong for a second reason: the District Court did not abuse its discretion in declining to admit them. Petitioners filed their motion for summary judgment in September, 1986; respondent filed an opposition, but did not submit any new evidentiary materials at that time. On June 27, 1988, after the case had made its way for the first time through the Court of Appeals, the District Court announced that it would hold a hearing on July 22 on "the outstanding motions for summary judgment," which included petitioners' motion challenging respondent's § 702 standing. The hearing was held and, as noted earlier, the District Court issued an order directing respondent to file "a supplemental memorandum regarding Page 497 U. S. 895 the issue of its standing to proceed." Record, Doc. No. 274. Although that plainly did not call for the submission of new evidentiary materials, it was in purported response to this order, on August 22, 1988, that respondent submitted (along with the requested legal memorandum) the additional affidavits. The only explanation for the submission (if it can be called an explanation) was contained in a footnote to the memorandum, which simply stated that"NWF now has submitted declarations on behalf of other members of NWF who have been injured by the challenged actions of federal defendants."Record, Doc. No. 278, p. 18, n. 21. In its November 4, 1988, ruling granting petitioners' motion, the District Court rejected the additional affidavits as "untimely and in violation of [the court's briefing] Order." 699 F. Supp. at 328, n. 3.Respondent's evidentiary submission was indeed untimely, both under Rule 56, which requires affidavits in opposition to a summary judgment motion to be served "prior to the day of the hearing," Fed.R.Civ.P. 56(c), and under Rule 6(d), which states more generally that,"[w]hen a motion is supported by affidavit, . . . opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time."Rule 6(b) sets out the proper approach in the case of late filings:"When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. . . ."This provision not only specifically confers the "discretion" relevant to the present issue, but also provides the mechanism Page 497 U. S. 896 by which that discretion is to be invoked and exercised. First, any extension of a time limitation must be "for cause shown." Second, although extensions before expiration of the time period may be "with or without motion or notice," any post-deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Thus, in order to receive the affidavits here, the District Court would have had to regard the very filing of the late document as the "motion made" to file it; [Footnote 5] it would have had to interpret "cause Page 497 U. S. 897 shown" to mean merely "cause," since respondent made no "showing" of cause at all; and finally, it would have had to find as a substantive matter that there was indeed "cause" for the late filing, and that the failure to file on time "was the result of excusable neglect."This last substantive obstacle is the greatest of all. The Court of Appeals presumably thought it was overcome because "the papers on which the trial court relied were two years old by the time it requested supplemental memoranda" and because"there was no indication prior to the trial court's request that [respondent] should have doubted the adequacy of the affidavits it had already submitted."278 U.S.App.D.C. at 331, 878 F.2d at 433. We do not understand the relevance of the first point; the passage of so long a time as two years suggests, if anything, that respondent had more than the usual amount of time to prepare its response to the motion, and was more than moderately remiss in waiting until after the last moment. As to the suggestion of unfair surprise: a litigant is never justified in assuming that the court has made up its mind until the court expresses itself to that effect, and a litigant's failure to buttress its position because of confidence in the strength of that position is always indulged in at the litigant's own risk. In any case, whatever erroneous expectations respondent may have had were surely dispelled by the District Court's order in June, 1988, announcing that the hearing on petitioners' motion would be held one month later. At least when that order issued, respondent was on notice that its right to sue was at issue, and that (absent proper motion) the time for filing any additional evidentiary materials was, at the latest, the day before the hearing. Page 497 U. S. 898Perhaps it is true that the District Court could have overcome all the obstacles we have described -- apparent lack of a motion, of a showing, and of excusable neglect -- to admit the affidavits at issue here. But the proposition that it was compelled to receive them -- that it was an abuse of discretion to reject them -- cannot be accepted.VRespondent's final argument is that we should remand this case for the Court of Appeals to decide whether respondent may seek § 702 review of petitioners' actions in its own right, rather than derivatively through its members. Specifically, it points to allegations in the amended complaint that petitioners unlawfully failed to publish regulations, to invite public participation, and to prepare an environmental impact statement with respect to the "land withdrawal review program" as a whole. In order to show that it is a "person . . . adversely affected or aggrieved" by these failures, it submitted to the District Court a brief affidavit (two pages in the record) by one of its vice-presidents, Lynn A. Greenwalt, who stated that respondent's mission is to "inform its members and the general public about conservation issues" and to advocate improvements in laws and administrative practices "pertaining to the protection and enhancement of federal lands," App. to Pet. for Cert.193a-194a; and that its ability to perform this mission has been impaired by petitioners' failure"to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program."Id. at 194a. The District Court found this affidavit insufficient to establish respondent's right to seek judicial review, since it was "conclusory and completely devoid of specific facts." 699 F. Supp. at 330. The Court of Appeals, having reversed the District Court on the grounds discussed above, did not address the issue.We agree with the District Court's disposition. Even assuming that the affidavit set forth "specific facts," Fed.R.Civ.P. Page 497 U. S. 899 56(e), adequate to show injury to respondent through the deprivation of information; and even assuming that providing information to organizations such as respondent was one of the objectives of the statutes allegedly violated, so that respondent is "aggrieved within the meaning" of those statutes; nonetheless, the Greenwalt affidavit fails to identify any particular "agency action" that was the source of these injuries. The only sentences addressed to that point are as follows:"NWF's ability to meet these obligations to its members has been significantly impaired by the failure of the Bureau of Land Management and the Department of the Interior to provide adequate information and opportunities for public participation with respect to the Land Withdrawal Review Program. These interests of NWF have been injured by the actions of the Bureau and the Department, and would be irreparably harmed by the continued failure to provide meaningful opportunities for public input and access to information regarding the Land Withdrawal Review Program."App. to Pet. for Cert.194a. As is evident, this is even more deficient than the Peterson and Erman affidavits, which contained geographical descriptions whereby at least an action as general as a particular classification decision could be identified as the source of the grievance. As we discussed earlier, the "land withdrawal review program" is not an identifiable action or event. With regard to alleged deficiencies in providing information and permitting public participation, as with regard to the other illegalities alleged in the complaint, respondent cannot demand a general judicial review of the BLM's day-to-day operations. The Greenwalt affidavit, like the others, does not set forth the specific facts necessary to survive a Rule 56 motion. Page 497 U. S. 900* * * * *For the foregoing reasons, the judgment of the Court of Appeals is reversed.It is so ordered

U.S. Supreme CourtLujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990)Lujan v. National Wildlife FederationNo. 89-640Argued April 16, 1990Decided June 27, 1990497 U.S. 871SyllabusThe National Wildlife Federation (hereinafter respondent) filed this action in the District Court against petitioners, the Director of the Bureau of Land Management (BLM) and other federal parties, alleging that, in various respects, they had violated the Federal Land Policy and Management Act of 1976 (FLPMA) and the National Environmental Policy Act of 1969 (NEPA) in the course of administering the BLM's "land withdrawal review program," and that the complained-of actions should be set aside because they were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" within the meaning of § 10(e) of the Administrative Procedure Act (APA), 5 U.S.C. § 706. Under the program, petitioners make various types of decisions affecting the status of public lands and their availability for private uses such as mining, a number of which decisions were listed in an appendix to the complaint. The court granted petitioners' motion for summary judgment under Federal Rule of Civil Procedure 56, holding that respondent lacked standing to seek judicial review of petitioners' actions under the APA, § 702. The court ruled that affidavits by two of respondent's members, Peterson and Erman, claiming use of public lands "in the vicinity" of lands covered by two of the listed decisions, were insufficient to confer standing as to those particular decisions, and that, even if they had been adequate for that limited purpose, they could not support respondent's attempted APA challenge to each of the 1,250 or so individual actions effected under the program. The court rejected as untimely four more member affidavits pertaining to standing, which were submitted after argument on the summary judgment motion and in purported response to the District Court's postargument request for additional briefing. The Court of Appeals reversed, holding that the Peterson and Erman affidavits were sufficient in themselves, that it was an abuse of discretion not to consider the four additional affidavits, and that standing to challenge the individual decisions conferred standing to challenge all such decisions.Held:1. The Peterson and Erman affidavits are insufficient to establish respondent's § 702 entitlement to judicial review as "[a] person . . . Page 497 U. S. 872 adversely affected or aggrieved by agency action within the meaning of a relevant statute." Pp. 497 U. S. 882-889.(a) To establish a right to relief under § 702, respondent must satisfy two requirements. First, it must show that it has been affected by some "agency action," as defined in § 551(13). See § 701(b)(2). Since neither the FLPMA nor NEPA provides a private right of action, the "agency action" in question must also be "final agency action" under § 704. Second, respondent must prove that it is "adversely affected or aggrieved" by that action "within the meaning of a relevant statute," which requires a showing that the injury complained of falls within the "zone of interests" sought to be protected by the FLPMA and NEPA. Cf. Clarke v. Securities Industry Assn., 479 U. S. 388, 479 U. S. 396-397. Pp. 497 U. S. 882-883.(b) When a defendant moves for summary judgment on the ground that the plaintiff has failed to establish a right to relief under 702, the burden is on the plaintiff, under Rule 56(e), to set forth specific facts (even though they may be controverted by the defendant) showing that there is a genuine issue for trial. Cf. Celotex Corp. v. Catrett, 477 U. S. 317, 477 U. S. 322. Where no such showing is made, the defendant is entitled to judgment as a matter of law. Id. at 477 U. S. 323. Pp. 497 U. S. 883-885.(c) The specific facts alleged in the two affidavits do not raise a genuine issue of fact as to whether respondent has a right to relief under § 702. It may be assumed that the allegedly affected interests set forth in the affidavits -- "recreational use and aesthetic enjoyment" -- are sufficiently related to respondent's purposes that respondent meets § 702's requirements if any of its members do. Moreover, each affidavit can be read to complain of a particular "agency action" within § 551's meaning; and whatever "adverse effect" or "aggrievement" is established by the affidavits meets the "zone of interests" test, since "recreational use and aesthetic enjoyment" are among the sorts of interests that the FLPMA and NEPA are designed to protect. However, there has been no showing that those interests of Peterson and Erman were actually "affected" by petitioners' actions, since the affidavits alleged only that the affiants used unspecified lands "in the vicinity of" immense tracts of territory, only on some portions of which, the record shows, mining activity has occurred or probably will occur by virtue of the complained-of actions. The Court of Appeals erred in ruling that the District Court had to presume specific facts sufficient to support the general allegations of injury to the affiants, since such facts are essential to sustaining the complaint and, under Rule 56(e), had to be set forth by respondent. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, distinguished. Pp. 497 U.S. 885-889. Page 497 U. S. 8732. Respondent's four additional member affidavits did not establish its right to § 702 review. Pp. 497 U. S. 890-898.(a) The affidavits are insufficient to enable respondent to challenge the entirety of petitioners' "land withdrawal review program." That term does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations, but is simply the name by which petitioners have occasionally referred to certain continuing (and thus constantly changing) BLM operations regarding public lands, which currently extend to about 1,250 individual decisions and presumably will include more actions in the future. Thus, the program is not an identifiable "agency action" within § 702's meaning, much less a "final agency action" under § 704. Absent an explicit congressional authorization to correct the administrative process on a systemic level, agency action is not ordinarily considered "ripe" for judicial review under the APA until the scope of the controversy has been reduced to manageable proportions, and its factual components fleshed out, by concrete action that harms or threatens to harm the complainant. It may well be, due to the scope of the "program," that the individual BLM actions identified in the affidavits will not be "ripe" for challenge until some further agency action or inaction more immediately harming respondent occurs. But it is entirely certain that the flaws in the entire "program" cannot be laid before the courts for wholesale correction under the APA simply because one of them that is ripe for review adversely affects one of respondent's members. Respondent must seek such programmatic improvements from the BLM or Congress. Pp. 497 U. S. 890-894.(b) The District Court did not abuse its discretion in declining to admit the supplemental affidavits. Since the affidavits were filed in response to the court's briefing order following the summary judgment hearing, they were untimely under, inter alia, Rule 6(d), which provides that "opposing affidavits may be served not later than 1 day before the hearing." Although Rule 6(b) allows a court, "in its discretion," to extend any filing deadline "for cause shown," a post-deadline extension must be "upon motion made," and is permissible only where the failure to meet the deadline "was the result of excusable neglect." Here, respondent made no motion for extension, nor any showing of "cause." Moreover, the failure to timely file did not result from "excusable neglect," since the court's order setting the hearing on the summary judgment motion put respondent on notice that its right to sue was at issue, and that (absent proper motion) the time for filing additional evidentiary materials was, at the latest, the day before the hearing. Even if the court could have overcome these obstacles to admit the affidavits, it was not compelled, in exercising its discretion, to do so. Pp. 497 U. S. 894-898. Page 497 U. S. 8743. Respondent is not entitled to seek § 702 review of petitioners' actions in its own right. The brief affidavit submitted to the District Court to show that respondent's ability to fulfill its informational and advocacy functions was "adversely affected" by petitioners' alleged failure to provide adequate information and opportunities for public participation with respect to the land withdrawal review program fails to identify any particular "agency action" that was the source of respondent's alleged injuries, since that program is not an identifiable action or event. Thus, the affidavit does not set forth the specific facts necessary to survive a Rule 56 motion. Pp. 497 U. S. 898-899.278 U.S.App.D.C. 320, 878 F.2d 422, reversed.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST C.J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 497 U. S. 900. Page 497 U. S. 875

1993_93-284

JUSTICE SOUTER delivered the opinion of the Court.This case presents the question whether a motor carrier in bankruptcy may recover for undercharges based on tariff rates that are void as a matter of law under the Interstate Commerce Commission's regulations. We hold that the carrier may not rely on the filed but void tariff.IOn August 20, 1984, petitioner Security Services, Inc., (then known as Riss International Corp.) filed with the Interstate Commerce Commission (Commission or ICC) a mileage (or distance) rate tariff having an effective date 30 days later. The tariff was received, accepted, and filed, and was never rejected by the ICC. Although the tariff specified rates to be charged per mile of carriage, it was not complete in itself, for it included no list of distances or map on which a shipper could rely in calculating charges for a given shipment. For the distance component of this mileage-based tariff, petitioner relied upon a Household Goods Carriers' Bureau (HGCB) Mileage Guide, its supplements, and subsequent issues. HGCB is itself not a carrier, but a publisher of distance guides for use in tariff filings. The Mileage Guide is a 565-page volume of large format, which specifies the distances in miles between various points of origin and destination, and contains maps and supplemental rules. The Mileage Guide refers shippers to a separate HGCB tariff and its supplements, filed with the ICC, for a list of the carriers who are "participants" in the Mileage Guide. A participant is a carrier who pays HGCB a nominal fee and issues it a valid power of attorney. The first page of HGCB's Mileage Guide states that it "MAY NOT BE EMPLOYED BY A CARRIER AS A GOVERNING PUBLICATION FOR THE PURPOSE OF DETERMINING INTERSTATE TRANSPORTATION RATES BASED ON MILEAGE OR DISTANCE, UNLESS CARRIER IS SHOWN AS A PARTICI-434PANT IN THE ABOVE NAMED TARIFF." HGCB, Mileage Guide No. 12, p. 1 (Dec. 1982). HGCB filed a tariff supplement to its Mileage Guide, effective February 19, 1985, listing participants and canceling Riss's participation in the Mileage Guide for failure to pay the nominal participation fee to HGCB. HGCB treats a power of attorney issued to it as void if not renewed by remitting the participation fee within a reasonable time after cancellation. Riss did not renew.On April 17, 1986, Riss contracted with respondent Kmart Corporation to transport Kmart's goods at rates specified in the contract, and from November 3, 1986, to December 29, 1989, Riss transported goods for Kmart under the contract. Riss billed, and Kmart paid, at the contract rate. In November 1989, Riss filed a Chapter 11 bankruptcy petition and while undergoing reorganization became Security Services. As debtor-in-possession, Security Services billed Kmart for undercharges (and interest) it was allegedly owed, based on the difference between the contract rate Kmart paid and the tariff rates that Riss assertedly had on file with the ICC. Security Services argued that under the Interstate Commerce Act's filed rate doctrine, Kmart was liable for the tariff rates filed with the ICC, regardless of any contract rate negotiated. Kmart refused to pay, and this suit ensued.The District Court for the Eastern District of Pennsylvania granted summary judgment for Kmart on the ground that Security Services had no valid tariff on file with the ICC (without which it could not collect for undercharges), because HGCB had canceled its participation in the Mileage Guide. The Court of Appeals for the Third Circuit affirmed. 996 F.2d 1516 (1993). The court reasoned that under ICC regulations Riss's tariff was void for nonparticipation in the HGCB Mileage Guide, that Riss had not filed any mileages of its own to replace its canceled participation, and that the consequently incomplete and void tariff could not support a claim for undercharges. Id., at 1524. The court took the position that, although the ICC regulations operated retroactively to void a filed tariff, that retroactive application was435permissible under this Court's test in ICC v. American Trucking Assns., Inc., 467 U. S. 354 (1984). 996 F. 2d, at 1524-1526. Finally, the court rejected Security Services's argument that its failure to participate formally in the HGCB Mileage Guide was a mere technical defect excused by its substantial compliance with the rule requiring it to file its rates with the Commission. Id., at 1526.We granted certiorari, 510 U. S. 930 (1993), to resolve a Circuit conflict over the validity of the ICC void-fornonparticipation regulation,l and now affirm.IIA motor carrier subject to the Interstate Commerce Act must publish its rates in tariffs filed with the ICC. 49 U. S. C. §§ 10761(a), 10762(a)(1). The carrier "may not charge or receive a different compensation for that transportation ... than the rate specified in the tariff .... " § 10761(a). We have held these provisions "to create strict filed rate requirements and to forbid equitable defenses to collection of the filed tariff." Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116, 127 (1990); accord, Reiter v. Cooper, 507 U. S. 258, 266 (1993); Louisville & Nashville R. Co. v. Maxwell, 237 U. S. 94, 97 (1915) ("Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed"). The purpose of the filed rate doctrine is "to ensure that rates are both reasonable and nondiscriminatory," Maislin, supra, at 119 (citing 49 U. S. C. §§ 10101(a), 10701(a), 10741(b) (1982 ed.)), and failure to charge or pay the filed rate may result in civil or criminal sanctions. See 49 U. S. C. §§ 11902-11904.1 Compare Overland Express, Inc. v. ICC, 996 F.2d 356 (CADC 1993); Security Services, Inc. v. P-Y Transp., Inc., 3 F.3d 966 (CA6 1993); Brizendine v. Cotter & Co., 4 F.3d 457 (CA7 1993), with the decision below, 996 F.2d 1516 (CA3 1993); see also Atlantis Express, Inc. v. Associated Wholesale Grocers, Inc., 989 F.2d 281 (CA8 1993); Freightcor Services, Inc. v. Vitro Packaging, Inc., 969 F.2d 1563 (CA5 1992), cert. denied, 506 U. S. 1053 (1993).436The ICC has authority to "prescribe the form and manner" of tariff filing, § 10762(b)(1), and the information to be included in tariffs beyond any matter required by statute, § 10762(a)(1). Each carrier is responsible for ensuring that it has rates on file with the ICC. §§ 10702, 10762. Under ICC regulations, a carrier has some choice about the form in which to state its rates, one possibility being a rate based on mileage. A mileage rate has two components: the rate per mile and distances between shipping points. 49 CFR § 1312.30 (1993). A carrier may file the distance portion of the rate by listing in its own tariff the distances between all relevant points, by referring to a map attached to its tariff, or by referring to a separately filed distance guide, such as the HGCB Mileage Guide. § 1312.30(c)(1). Petitioner does not dispute that distance guides are themselves tariffs. Brief for Petitioner 9, n. 4.2 A carrier may refer to a tariff filed by another carrier or by an agent only by formally "participating" in the referenced tariff, which may be done only by issuing a power of attorney (or concurrence) to the other carrier or agent. 49 CFR §§ 1312.4(d), 1312.10, 1312.27(e) (1993). The Commission's void-for-nonparticipation regulation provides that "a carrier may not participate in a tariff issued in the name of another carrier or an agent unless a power of attorney or concurrence has been executed. Absent effective concurrences or powers of attorney, tariffs are void as a matter of law." § 1312.4(d). Tariff agents like2 Amicus Overland Express, Inc., contends that participation in mileage guides is not required, citing Revision of Tariff Regulations, All Carriers, 1 I. C. C. 2d 404, 425 (1984). But the ICC has interpreted its rules to require such participation, Jasper Wyman & Son-Petition for Declaratory Order-Certain Rates and Practices of Overland Express, Inc., 8 I. C. C. 2d 246, 249-252 (1992) (applying void-for-nonparticipation regulation), petition for review granted, Overland Express, Inc. v. ICC, 996 F.2d 356 (CADC 1993), and its interpretation of its own regulations is entitled to "controlling weight unless it is plainly erroneous or inconsistent with the regulation," Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945). The ICC's interpretation is neither.437HGCB are required to identify carriers participating in their tariffs, by listing their names either in the tariff containing the mileage guide itself, or in a separate tariff. §§ 1312.13(c), 1312.25. The listings are meant to be kept reasonably current, but are effective until changed. "Revocation or amendment of the power of attorney should be reflected through lawfully published tariff revisions effective concurrently. In the event of failure to so revise the applicable tariff or tariffs, the rates in such tariff or tariffs will remain applicable until lawfully changed." § 1312.10(a). That is, cancellation of a power of attorney (whether by carrier or agent) is accomplished by filing or amending a tariff. §§ 1312.10(a), 1312.25(d), 1312.17(b). Until such filing or amendment, the carrier's reference to the agent's tariff remains effective, § 1312.10(a); once the agent's tariff is filed or amended to note cancellation of the carrier's participation, the carrier's tariff is void as a matter of law (absent additional filing by the carrier). See § 1312.4(d).3 As the ICC explained, once cancellation of participation is published, as it was here, the mileage-based tariff is incomplete, and "cease[s] to satisfy the fundamental purpose of tariffs; to disclose the freight charges due to the carrier." Jasper Wyman & Son-Petition for Declaratory Order-Certain Rates and Practices of Overland Express, Inc., 8 1. C. C. 2d 246, 258 (1992) (applying void-for-nonparticipation regulation), petition for review granted, Overland Express, Inc. v. ICC, 996 F.2d 356 (CADC 1993).Congress passed the Motor Carrier Act of 1980, 94 Stat. 793, to encourage competition in the industry. In response to this enactment and changes in the carrier market, the ICC3 The ICC has apparently had a similar rule for many decades. In Cancelation of Participation in Agency Tariffs, 4 Fed. Reg. 4440 (1939), the Commission made clear that if an agent in whose tariff a carrier participated canceled the carrier's participation for nonpayment of dues or failure to follow the agent's rules, the carrier could no longer lawfully rely on the agent's tariffs and had to file its own tariffs to comply with the Act.438simplified its tariff filing rules, as by eliminating the requirement that the actual powers of attorney be filed with the ICC. See 48 Fed. Reg. 31265, 31266 (1983); see also Revision of Tariff Regulations, All Carriers, 1 1. C. C. 2d 404, 408 (1984). The ICC's rule that "participation" is required, however, remained in force. See id., at 434; see also 48 Fed. Reg. 31266 (1983) ("The obligation to limit tariff publication to existing agency relationships remains, however, as a matter of law"). Many shippers and carriers nevertheless responded to the very changes in the market that prompted the ICC's revision of its rules by ignoring the rates the carriers had filed with the ICC and instead negotiating rates for carriage lower than the filed rates. As a further result of competitive pressures, many carriers also went bankrupt. A number of trustees and debtors-in-possession then attempted to recover as undercharges the difference between the negotiated and filed rates. Since the market changes convinced the ICC that strict adherence to the filed rate doctrine was no longer necessary under some circumstances, Maislin, 497 U. S., at 121, the ICC decided to follow a new policy of determining, case by case, whether it would be an "unreasonable practice" under 49 U. S. C. § 10701 for a carrier (often by then bankrupt) to recover for undercharges from a shipper who had paid a negotiated, rather than filed, rate. See National Industrial Transportation LeaguePetition to Institute Rulemaking on Negotiated Motor Common Carrier Rates, 3 1. C. C. 2d 99, 104-108 (1986); 5 1. C. C. 2d 623, 628-634 (1989). In Maislin, we held that this ICC practice violated the core purposes of the Act, because "[b]y refusing to order collection of the filed rate solely because the parties had agreed to a lower rate, the ICC has permitted the very price discrimination that the Act by its terms seeks to prevent." 497 U. S., at 130 (citing 49 U. S. C. § 10741). Thus, we held that any bankruptcy trustee or debtor-in-possession was entitled to recover for undercharges based on effective, filed rates.439Petitioner argues that the effect of the void-for-nonparticipation rule is to allow transactions to be governed by secretly negotiated rates, rather than the publicly filed rates mandated by the Act. Petitioner would thus have us see the ICC's recent enforcement of its void-for-nonparticipation regulation as merely an attempt to evade Maislin and undermine the filed rate doctrine by keeping trustees or debtorsin-possession from recovering for undercharges.The argument is an odd one.4 The filed rate requirement mandates that carriers charge the rates filed in a tariff. We held in Maislin, supra, that the requirement was not subject to discretionary enforcement when raised against a shipper4 We have no occasion even to reach its factual predicate, which is vigorously disputed. Security Services argues that the agency failed to enforce its regulation from amendment in 1984 until 1993. Petitioner contends that the ICC routinely accepted tariffs containing methods for computing distances that were not authorized by 49 CFR § 1312.30(c) (1993), and that from 1984 to 1988, approximately 40 percent of all motor carriers filing distance rate tariffs referring to HGCB mileage guides did so without formally participating in them. See Overland Express, 996 F. 2d, at 359. Petitioner states that the ICC took no action after discovering these failures to participate. The Government argues that the ICC currently enforces its void-for-nonparticipation rule. It represents, for example, that in fiscal year 1993, the ICC "entered 24 consent decrees with carriers who had let their participations in mileage guides and other tariffs lapse, ... sought and obtained one injunction, and ... issued an order pursuant to its broad remedial powers" directing carriers who had let their participation in the HGCB lapse either to renew their participation or "strike any reference" to the Mileage Guide in their tariffs. Tr. of Oral Arg. 42. The Government also disputes the assertion that 40 percent of carriers referring to an HGCB guide failed to participate in the guide. The Government and Kmart claim that HGCB found only 111 such failures among the filings of some 12,800 carriers who referred to HGCB guides, and that the ICC has taken action for failure to participate. See Household Goods Carriers' Bureau, Inc.-Petition for Cancellation of Tariffs of Non-Participating Carriers, 9 I. C. C. 2d 378 (1993); National Motor Freight Traffic Assn.-Petition for Cancellation of Tariffs That Refer to the National Motor Freight Classification, but are Filed by or on Behalf of Non-Participating Carriers, 9 I. C. C. 2d 186 (1992).440who had agreed with a carrier to a negotiated rate lower than the rate on file. When the carrier's bankruptcy prompted second thoughts about the wisdom of the agreement, the carrier and its creditors obtained the benefit of the requirement. Here, as in Jasper Wyman, supra, the carrier seeks to escape its burden by recovering for undercharges even though in effect it had no rates on file because its tariff lacked an essential element. The filed rate rule applied here to bar the carrier's recovery is the same rule that was applied to bar the shipper's defense. Nor is the rule somehow more technical or less equitable when applied against Security Services. It can hardly be gainsaid that a carrier employing distance rates without purporting to be bound by stated distances would be just as well placed to discriminate among shippers by measuring with rubber instruments as it would be by charging shippers for a stated distance at mutable rates per mile. While some may debate in other forums about the wisdom of the filed rate doctrine, it is enough to say here that the carriers cannot have it both ways.5IIIPetitioner is left to invoke the limitations on the ICC's authority to declare a rate void retroactively, and the "technical defect" rule.6 Neither is availing.5 Both JUSTICE THOMAS, post, at 451, and n. 3, and JUSTICE GINSBURG, post, at 457-458, argue that the effect of today's ruling is to validate secretly negotiated rates. Indeed, JUSTICE THOMAS goes so far as to suggest that our opinion would allow the ICC to circumvent Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116 (1990), merely by declaring that a filed rate is void whenever another rate is negotiated, post, at 455. But our opinion does nothing of the kind. The Interstate Commerce Act states that carriers may provide transportation "only if the rate for the transportation or service is contained in a tariff that is in effect" under the provisions of the Act, 49 U. S. C. § 10761(a), and the Act provides for civil and criminal penalties for failure to maintain such rates, and to charge or pay them. See generally §§ 11901-11904.6JUSTICE THOMAS in dissent argues that we ignore petitioner's "broader argument ... that the rule is not within the Commission's authority." See post, at 453, n. 4. But petitioner's question presented was whether441AThe Court of Appeals believed, 996 F. 2d, at 1524-1526, as petitioner now argues, that the void-for-nonparticipation rule retroactively voids rates and is thus subject to the analysis we applied in American Trucking, 467 U. S., at 361-364, 367. See also Overland Express, 996 F. 2d, at 360. In American Trucking, we held that the Commission could retroactively void effective tariffs ab initio only if the action "further[s] a specific statutory mandate of the Commission" and is "directly and closely tied to that mandate." 467 U. S., at 367. But the rule is not apposite here, for the void-fornonparticipation regulation does not apply retroactively. The ICC did not, as in American Trucking, void a rate for a period during which an effective rate was filed. The ICC's regulations operate to void tariffs that would otherwise apply to future transactions, by providing that the rate becomes inapplicable when the tariff reference to the Mileage Guide is canceled, i. e., from the moment at which examination of the tariff filings would show that the carrier's tariff is incomplete, 49 CFR § 1312.10(a) (1993), after which the shipper would be unable to rely on the incomplete tariff to calculate the applicable charges.7 Transactions occurring before cancellation of the power of attorney are governed by"the Interstate Commerce Commission has discretionary authority to retroactively void an effective tariff." Brief for Petitioner i. On the same page cited by JUSTICE THOMAS for petitioner's "broader argument," petitioner in fact describes the ICC rule as "treating [tariffs] as retroactively void," id., at 20, and petitioner concludes the section by arguing that the ICC has no power "to retroactively void effective tariffs." Id., at 24. Petitioner's argument in that section is that the Interstate Commerce Act "prescribes the remedies available to Kmart," id., at 17, not that the regulation is ultra vires. Indeed, at oral argument, counsel for petitioner stated that the ICC's void-for-nonparticipation rule "is authorized. The rule is proper, but the application of the rule ... is contrary to law." Tr. of Oral Arg. 17.7 If a canceled participation is renewed before the effective cancellation date, participation may be restored on five days' notice by filing an amended tariff. 49 CFR § 1312.39(a) (1993).442the filed rate; transactions occurring after cancellation would have no filed mileages to which a carrier's per-mile tariff rates would apply to determine charges due. The regulation does not require any ICC "retroactive rejection" of a filed rate, or indeed any agency action at all. The regulation works like an expiration date on an otherwise valid tariff in voiding its future application, in accordance with § 1312.23(a). Neither regulation works a retroactive voiding. We thus disagree with the Court of Appeals for the District of Columbia Circuit, which held that once a tariff is in effect, a regulation that voids the tariff operates retroactively. Overland Express, supra, at 360.Here, petitioner's tariff reference to the HGCB Mileage Guide became void as a matter of law and its tariff filings incomplete on their face on February 19, 1985, when HGCB canceled its participation in the Mileage Guide by filing a supplemental tariff. The transactions with Kmart occurred after that date.BNor does the "technical defect" rule apply here. Under our cases, neither procedural irregularity nor unreasonableness nullifies a filed rate; the shipper's remedy for irregularity or unreasonable rates is damages. See, e. g., BerwindWhite Coal Mining Co. v. Chicago & Erie R. Co., 235 U. S. 371 (1914); Davis v. Portland Seed Co., 264 U. S. 403 (1924). In Berwind-White, the Court held that filed tariffs falling short of full compliance in stylistic matters were still "adequate to give notice" and so could support a carrier's claim against a shipper for charges due. 235 U. S., at 375. In Davis, the effect of applying the carrier's tariff violated a former statutory bar to charging less for a longer distance than for a shorter one over the same route, other things being equal. The Court rejected the position that the higher rate was void and the lower rate legally applicable, so that damages would depend upon the difference between the two, and held that the shipper's remedy was instead to443be measured by its actual damages from having been charged the higher rate as compared to a reasonable one. 264 U. S., at 424-426.8Unlike the shippers in the "technical defect" cases, the shipper here could not determine the carrier's rates, since under the regulations, distance tariffs are incomplete once the carrier's participation in the Mileage Guide has been canceled by the agent's filing. See 49 CFR §§ 1312.4(d), 1312.10(a), 1312.30 (1993). We are dealing not with a complete tariff subject to some blemish independently remediable, but with an incomplete tariff insufficient to support a reliable calculation of charges. Security Services, however, questions the distinction by arguing that a shipper is unlikely to search for the list of participating carriers and to determine from the agent's supplemental tariffs that a carrier's participation has been canceled. Rather, a shipper is likely only to follow the reference in the carrier's tariff to the HGCB Mileage Guide, and can fully calculate the applicable charges. But the likelihood or unlikelihood of a shipper's actually reading all the applicable tariffs is simply irrelevant, for carriers and shippers alike are charged with constructive notice of tariff filings, Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 653 (1913); Reiter v. Cooper, 507 U. S., at 266, and the fact that shippers may take shortcuts through the filings cannot convert an incomplete tariff into a complete one. In sum, a tariff that refers to another tariff for essential information, which tariff in turn states that the carrier may not refer to it, does not provide the "adequate notice" of rates to be charged that our "technical defect" cases require.8 See also Texas & Pacific R. Co. v. Cisco Oil Mill, 204 U. S. 449 (1907) (Tariff rates filed with ICC and furnished to freight officers of railroad are legally operative despite railroad's failure to post two copies in each railroad depot); Genstar Chemical Ltd. v. ICC, 665 F.2d 1304, 1309 (CADC 1981) ("[T]he 'error' in the tariff was certainly not apparent on its face"), cert. denied, 456 U. S. 905 (1982).444IVWhen a carrier relies on a mileage guide filed by another carrier or agent, under ICC regulations the carrier must participate in the guide by maintaining a power of attorney; when a carrier fails to maintain its power of attorney and its participation is canceled by its former agent's filing of an appropriate tariff, the carrier's tariff is void. Trustees in bankruptcy and debtors-in-possession may rely on the filed rate doctrine to collect for undercharges, Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116 (1990), but they may not collect for undercharges based on filed, but void, rates. The decision of the Court of Appeals is accordinglyAffirmed

OCTOBER TERM, 1993SyllabusSECURITY SERVICES, INC. v. KMART CORP.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 93-284. Argued February 28, 1994-Decided May 16, 1994The mileage rate tariff that petitioner motor carrier filed with the Interstate Commerce Commission (ICC) did not list distances for calculating charges for shipments, but instead relied upon a Household Goods Carriers' Bureau (HGCB) Mileage Guide for its distance component. The Mileage Guide states that it may not be used to determine rates unless the carrier is shown as a "participant" in the Guide. Participants are listed in a separate HGCB tariff filed with the ICC. When petitioner failed to pay its fees, HGCB canceled petitioner's participation by supplementing the latter tariff. Sometime later, petitioner contracted to transport respondent shipper's goods at rates below its filed tariff rates. Petitioner subsequently filed for Chapter 11 bankruptcy and, as debtorin-possession, asserted that respondent was liable under the Interstate Commerce Act's filed rate doctrine for undercharges based on the difference between the contract and tariff rates. Respondent refused to pay. Petitioner sued. The District Court granted summary judgment for respondent, and the Court of Appeals affirmed, concluding that the filed tariff could not support an undercharge claim because it was void under ICC regulations requiring participation in mileage guides referred to in a carrier's tariff; that the regulations' retroactive voiding of the tariff was permissible under ICC v. American Trucking Assns., Inc., 467 U. S. 354; and that nonparticipation in the Guide was not a mere technical defect excused by petitioner's substantial compliance with the filed rate rule.Held: A motor carrier in bankruptcy may not rely on tariff rates it has filed with the ICC, but which are void for nonparticipation under ICC regulations, as a basis for recovering undercharges. Pp. 435-444.(a) A bankruptcy trustee for a defunct carrier or the carrier itself as a debtor-in-possession is entitled to rely on the filed rate doctrine, which mandates that carriers charge and be paid the rates filed in a tariff, to collect for undercharges based on effective, filed rates. Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116. The ICC's voidfor-nonparticipation regulation, however, invalidates a mileage-based tariff once cancellation of the carrier's participation in an agent's distance guide is published, as it was here. Such a tariff is incomplete and432ceases to satisfy the fundamental purpose of tariffs: to disclose the freight charge due to the carrier. Petitioner may not recover for undercharges based on filed, but void, rates lacking an essential element. Pp. 435-440.(b) The rule of American Trucking, supra, at 361-364, is not apposite here, for the void-for-nonparticipation regulation does not apply retroactively. Under the regulation, petitioner's tariff reference to the HGCB Mileage Guide became void as a matter of law and its tariff filings incomplete on their face when HGCB canceled its participation in the Guide by filing a supplemental tariff. The transactions with respondent occurred after that date. Pp. 440-442.(c) Also inapplicable is the "technical defect" rule. See, e. g., Berwind- White Coal Mining Co. v. Chicago & Erie R. Co., 235 U. S. 371, 375. A tariff like petitioner's that refers to another tariff for essential information, which tariff in turn states that the carrier may not refer to it, does not provide the "adequate notice" of rates to be charged that the Court's "technical defect" cases require. Pp. 442-443.996 F.2d 1516, affirmed.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BLACKMUN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 444. THOMAS, J., post, p. 444, and GINSBURG, J., post, p. 455, filed dissenting opinions.PaulO. Taylor argued the cause and filed briefs for petitioner.William J. Augello argued the cause for respondent.With him on the brief was Alice 1. Buckley.John F. Manning argued the cause for the United States et al. as amici curiae urging affirmance. On the brief were Solicitor General Days, Deputy Solicitor General Wallace, Michael R. Dreeben, Henri F. Rush, and Ellen D. Hanson.** Joseph L. Steinfeld, Jr., Robert B. Walker, John T. Siegler, and Scott H. Lyon filed a brief for Overland Express, Inc., as amicus curiae urging reversal.Frederick L. Wood, Nicholas J. DiMichael, and Richard D. Fortin filed a brief for the National Industrial Transportation League as amicus curiae urging affirmance.433Full Text of Opinion

1987_86-1461

JUSTICE WHITE delivered the opinion of the Court.This case centers around the respondent union's peaceful handbilling of the businesses operating in a shopping mall in Tampa, Florida, owned by petitioner, the Edward J. DeBartolo Corporation (DeBartolo). The union's primary labor dispute was with H. J. High Construction Company (High) over alleged substandard wages and fringe benefits. High was retained by the H. J. Wilson Company (Wilson) to construct a department store in the mall, and neither DeBartolo nor any of the other 85 or so mall tenants had any contractual right to influence the selection of contractors.The union, however, sought to obtain their influence upon Wilson and High by distributing handbills asking mall customers not to shop at any of the stores in the mall"until the Mall's owner publicly promises that all construction at the Mall will be done using contractors who pay their employees fair wages and fringe benefits. [Footnote 1]"The handbills' Page 485 U. S. 571 message was that"[t]he payment of substandard wages not only diminishes the working person's ability to purchase with earned, rather than borrowed, dollars, but it also undercuts the wage standard of the entire community."The handbills made clear that the union was seeking only a consumer boycott against the other mall tenants, not a secondary strike by their employees. At all four entrances to the mall for about three weeks in December 1979, the union peacefully distributed the handbills without any accompanying picketing or patrolling.After DeBartolo failed to convince the union to alter the language of the handbills to state that its dispute did not involve DeBartolo or the mall lessees other than Wilson, and to limit its distribution to the immediate vicinity of Wilson's construction site, it filed a complaint with the National Labor Relations Board (Board), charging the union with engaging in unfair labor practices under § 8(b)(4) of the National Page 485 U. S. 572 Labor Relations Act (NLRA), 61 Stat. 141, as amended, 29 U.S.C. § 158(b)(4). [Footnote 2] The Board's General Counsel issued a complaint, but the Board eventually dismissed it, concluding that the handbilling was protected by the publicity proviso of § 8(b)(4). Florida Gulf Coast Bldg. & Constr. Trades Council, Page 485 U. S. 573 252 N.L.R.B. 702 (1980). The Court of Appeals for the Fourth Circuit affirmed the Board, 662 F.2d 264 (1981), but this Court reversed in Edward J. DeBartolo Corp. v. NLRB, 463 U. S. 147 (1983). There, we concluded that the handbilling did not fall within the proviso's limited scope of exempting "publicity intended to inform the public that the primary employer's product is distributed by' the secondary employer" because DeBartolo and the other tenants, as opposed to Wilson, did not distribute products of High. Id. at 463 U. S. 155-157. Since there had not been a determination below whether the union's handbilling fell within the prohibition of § 8(b)(4), and, if so, whether it was protected by the First Amendment, we remanded the case.On remand, the Board held that the union's handbilling was proscribed by § 8(b)(4)(ii)(B). 273 N.L.R.B. 1431 (1985). It stated that, under its prior cases, "handbilling and other activity urging a consumer boycott constituted coercion." Id. at 1432. The Board reasoned that"[a]ppealing to the public not to patronize secondary employers is an attempt to inflict economic harm on the secondary employers by causing them to lose business,"and "such appeals constitute economic retaliation,' and are therefore a form of coercion." Id. at 1432, n. 6. It viewed the object of the handbilling as attempting "to force the mall tenants to cease doing business with DeBartolo in order to force DeBartolo and/or Wilson's not to do business with High." Id. at 1432. The Board observed that it need not inquire whether the prohibition of this handbilling raised serious questions under the First Amendment, for "the statute's literal language and the applicable case law require[d]" a finding of a violation. Ibid. Finally, it reiterated its longstanding position that "as a congressionally created administrative agency, we will presume the constitutionality of the Act we administer." Ibid.The Court of Appeals for the Eleventh Circuit denied enforcement of the Board's order. Florida Gulf Coast Bldg. & Constr. Trades Council v. NLRB, 796 F.2d 1328, Page 485 U. S. 574 1346 (1986). Because there would be serious doubts about whether § 8(b)(4) could constitutionally ban peaceful handbilling not involving nonspeech elements, such as patrolling, the court applied our decision in NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 (1979), to determine if there was a clear congressional intent to proscribe such handbilling. The language of the section, the court held, revealed no such intent, and the legislative history indicated that Congress, by using the phrase "threaten, coerce, or restrain," was concerned with secondary picketing and strikes, rather than appeals to consumers not involving picketing. 796 F.2d at 1336-1340. The court also concluded that the publicity proviso did not manifest congressional intent to ban all speech not coming within its terms, because it was "drafted as an interpretive, explanatory section," and not as an exception to an otherwise all-encompassing prohibition on publicity in § 8(b)(4). Id. at 1344. The court went on to construe the section as not prohibiting consumer publicity; DeBartolo petitioned for certiorari. Because this case presents important questions of federal constitutional and labor law, we granted the petition, 482 U.S. 913 (1987), and now affirm.The Board, the agency entrusted by Congress with the authority to administer the NLRA, has the "special function of applying the general provisions of the Act to the complexities of industrial life." NLRB v. Erie Resistor Corp., 373 U. S. 221, 373 U. S. 236 (1963); see Pattern Makers v. NLRB, 473 U. S. 95, 473 U. S. 114 (1985); NLRB v. Steelworkers, 357 U. S. 357, 357 U. S. 362-363 (1958). Here, the Board has construed § 8(b)(4) of the Act to cover handbilling at a mall entrance urging potential customers not to trade with any retailers in the mall, in order to exert pressure on the proprietor of the mall to influence a particular mall tenant not to do business with a nonunion construction contractor. That statutory interpretation by the Board would normally be entitled to deference unless that construction were clearly contrary to the intent of Congress. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 842-843, and n. 9 (1984). Page 485 U. S. 575Another rule of statutory construction, however, is pertinent here: where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress. Catholic Bishop, supra, at 440 U. S. 499-501, 440 U. S. 504. This cardinal principle has its roots in Chief Justice Marshall's opinion for the Court in Murray v. The Charming Betsy, 2 Cranch 64, 6 U. S. 118 (1804), and has for so long been applied by this Court that it is beyond debate. E.g., Catholic Bishop, supra, at 440 U. S. 500-501; Machinists v. Street, 367 U. S. 740, 367 U. S. 749-750 (1961); Crowell v. Benson, 285 U. S. 22, 285 U. S. 62 (1932); Lucas v. Alexander, 279 U. S. 573, 279 U. S. 577 (1929); Panama R. Co. v. Johnson, 264 U. S. 375, 264 U. S. 390 (1924); United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 213 U. S. 407-408 (1909); Parsons v. Bedford, 3 Pet. 433, 28 U. S. 448-449 (1830) (Story, J.). As was stated in Hooper v. California, 155 U. S. 648, 155 U. S. 657 (1895), "[t]he elementary rule is that every reasonable construction must be resorted to in order to save a statute from unconstitutionality." This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that Congress intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it. See Grenada County Supervisors v. Brogden, 112 U. S. 261, 112 U. S. 269 (1884).We agree with the Court of Appeals and respondents that this case calls for the invocation of the Catholic Bishop rule, for the Board's construction of the statute, as applied in this case, poses serious questions of the validity of § 8(b)(4) under the First Amendment. The handbills involved here truthfully revealed the existence of a labor dispute and urged potential customers of the mall to follow a wholly legal course of action, namely, not to patronize the retailers doing business in the mall. The handbilling was peaceful. No picketing or Page 485 U. S. 576 patrolling was involved. On its face, this was expressive activity arguing that substandard wages should be opposed by abstaining from shopping in a mall where such wages were paid. Had the union simply been leafletting the public generally, including those entering every shopping mall in town, pursuant to an annual educational effort against substandard pay, there is little doubt that legislative proscription of such leaflets would pose a substantial issue of validity under the First Amendment. The same may well be true in this case, although here the handbills called attention to a specific situation in the mall allegedly involving the payment of unacceptably low wages by a construction contractor.That a labor union is the leafletter and that a labor dispute was involved does not foreclose this analysis. We do not suggest that communications by labor unions are never of the commercial speech variety, and thereby entitled to a lesser degree of constitutional protection. The handbills involved here, however, do not appear to be typical commercial speech, such as advertising the price of a product or arguing its merits, for they pressed the benefits of unionism to the community and the dangers of inadequate wages to the economy and the standard of living of the populace. Of course, commercial speech itself is protected by the First Amendment, Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 425 U. S. 762 (1976), and however these handbills are to be classified, the Court of Appeals was plainly correct in holding that the Board's construction would require deciding serious constitutional issues. See Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U. S. 530, 447 U. S. 534-535, 447 U. S. 537 (1980); Smith v. Daily Mail Publishing Co., 443 U. S. 97, 443 U. S. 102-103 (1979); Organization for a Better Austin v. Keefe, 402 U. S. 415, 402 U. S. 419-420 (1971).The Board was urged to construe the statute in light of the asserted constitutional considerations, but thought that it was constrained by its own prior authority and cases in the Courts of Appeals, as well as by the express language of Page 485 U. S. 577 the Act, to hold that § 8(b)(4) must be construed to forbid the handbilling involved here. Even if this construction of the Act were thought to be a permissible one, we are quite sure that, in light of the traditional rule followed in Catholic Bishop, we must independently inquire whether there is another interpretation, not raising these serious constitutional concerns, that may fairly be ascribed to § 8(b)(4)(ii)(B). This the Court has done in several cases.In NLRB v. Drivers, 362 U. S. 274, 362 U. S. 284 (1960), for example, the Court rejected the Board's interpretation of the phrase "restrain or coerce" to include peaceful recognitional picketing and stated:"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."That examination of the legislative history failed to yield the requisite "clearest indication." Similarly, in NLRB v. Fruit Packers, 377 U. S. 58, 377 U. S. 63 (1964) (Tree Fruits), we disagreed with the Board's determination that § 8(b)(4)(ii)(B) prohibited all consumer picketing at a secondary establishment, no matter the economic consequences of that picketing, because our examination of the legislative history led us to"conclude that it does not reflect with the requisite clarity a congressional plan to proscribe all peaceful consumer picketing at secondary sites, and, particularly, any concern with peaceful picketing when it is limited, as here, to persuading"customers not to purchase a specific product of the secondary establishment. We once more looked for the "isolated evils" that Congress had focused on because"[b]oth the congressional policy and our adherence to this principle of interpretation Page 485 U. S. 578 reflect concern that a broad ban against peaceful picketing might collide with the guarantees of the First Amendment."Id. at 377 U. S. 62-63; see id. at 377 U. S. 67, 71. Because there was not the required "clearest indication in the legislative history," we rejected the Board's interpretation that limited expressive activities. Again, in Catholic Bishop, we independently determined whether the Board's jurisdiction extended to parochial schools in the face of a substantial First Amendment challenge, although the Board itself had previously considered the First Amendment challenge and presumably interpreted the statute cognizable of those limits. 440 U.S. at 4 440 U. S. 97-499.We follow this course here, and conclude, as did the Court of Appeals, that the section is open to a construction that obviates deciding whether a congressional prohibition of handbilling on the facts of this case would violate the First Amendment.The case turns on whether handbilling such as involved here must be held to "threaten, coerce, or restrain any person" to cease doing business with another, within the meaning of § 8(b)(4)(ii)(B). We note first that "induc[ing] or encourag[ing]" employees of the secondary employer to strike is proscribed by § 8(b)(4)(i). But more than mere persuasion is necessary to prove a violation of § 8(b)(4)(ii)(B): that section requires a showing of threats, coercion, or restraints. Those words, we have said, are "nonspecific, indeed vague," and should be interpreted with "caution," and not given a "broad sweep," Drivers, supra, at 362 U. S. 290; and, in applying § 8(b)(1)(A), they were not to be construed to reach peaceful recognitional picketing. Neither is there any necessity to construe such language to reach the handbills involved in this case. There is no suggestion that the leaflets had any coercive effect on customers of the mall. There was no violence, picketing, or patrolling, and only an attempt to persuade customers not to shop in the mall.The Board nevertheless found that the handbilling "coerced" mall tenants, and explained in a footnote that"[a]ppealing Page 485 U. S. 579 to the public not to patronize secondary employers is an attempt to inflict economic harm on the secondary employers by causing them to lose business. As the case law makes clear, such appeals constitute 'economic retaliation,' and are therefore a form of coercion."273 N.L.R.B. at 1432, n. 6. [Footnote 3] Our decision in Tree Fruits, however, makes untenable the notion that any kind of handbilling, picketing, or other appeals to a secondary employer to cease doing business with the employer involved in the labor dispute is "coercion" within the meaning of § 8(b)(4)(ii)(B) if it has some economic impact on the neutral. In that case, the union picketed a secondary employer, a retailer, asking the public not to buy a product produced by the primary employer. We held that the impact of this picketing was not coercion within the meaning of § 8(b)(4) even though, if the appeal succeeded, the retailer would lose revenue. [Footnote 4]NLRB v. Retail Store Employees, 447 U. S. 607 (1980) (Safeco), in turn, held that consumer picketing urging a general boycott of a secondary employer aimed at causing him to sever relations with the union's real antagonist was coercive and forbidden by § 8(b)(4). It is urged that Safeco rules this Page 485 U. S. 580 case because the union sought a general boycott of all tenants in the mall. But "picketing is qualitatively different from other modes of communication,'" Babbitt v. Farm Workers, 442 U. S. 289, 442 U. S. 311, n. 17 (1979) (quoting Hughes v. Superior Court, 339 U. S. 460, 339 U. S. 465 (1950)), and Safeco noted that the picketing there actually threatened the neutral with ruin or substantial loss. As JUSTICE STEVENS pointed out in his concurrence in Safeco, 447 U.S. at 447 U. S. 619, picketing is "a mixture of conduct and communication," and the conduct element "often provides the most persuasive deterrent to third persons about to enter a business establishment." Handbills containing the same message, he observed, are "much less effective than labor picketing," because they "depend entirely on the persuasive force of the idea." Ibid. Similarly, the Court stated in Hughes v. Superior Court, supra, at 339 U. S. 465:"Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication."In Tree Fruits, we could not discern with the "requisite clarity" that Congress intended to proscribe all peaceful consumer picketing at secondary sites. There is even less reason to find in the language of § 8(b)(4)(ii)(B), standing alone, any clear indication that handbilling, without picketing, "coerces" secondary employers. The loss of customers because they read a handbill urging them not to patronize a business, and not because they are intimidated by a line of picketers, is the result of mere persuasion, and the neutral who reacts is doing no more than what its customers honestly want it to do.The Board argues that our first DeBartolo case goes far to dispose of this case, because there we said that the only nonpicketing publicity"exempted from the prohibition is publicity intended to inform the public that the primary employer's Page 485 U. S. 581 product is 'distributed by' the secondary employer."463 U.S. at 463 U. S. 155. We also indicated that, if the handbilling were protected by the proviso, the distribution requirement would be without substantial practical effect. Id. at 463 U. S. 157. But we obviously did not there conclude or indicate that the handbills were covered by § 8(b)(4)(ii)(B), for we remanded the case on this very issue. Id. at 157-158. [Footnote 5]It is nevertheless argued that the second proviso to § 8(b)(4) makes clear that that section, as amended in 1959, was intended to proscribe nonpicketing appeals such as handbilling Page 485 U. S. 582 urging a consumer boycott of a neutral employer. That proviso reads as follows:"Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution."By its terms, the proviso protects nonpicketing communications directed at customers of a distributor of goods produced by an employer with whom the union has a labor dispute. Because handbilling and other consumer appeals not involving such a distributor are not within the proviso, the argument goes, those appeals must be considered coercive within the meaning of § 8(b)(4)(ii)(B). Otherwise, it is said, the proviso is meaningless, for if handbilling and like communications are never coercive and within the reach of the section, there would have been no need whatsoever for the proviso.This approach treats the proviso as establishing an exception to a prohibition that would otherwise reach the conduct excepted. But this proviso has a different ring to it. It states that § 8(b)(4) "shall not be construed" to forbid certain described nonpicketing publicity. That language need not be read as an exception. It may indicate only that, without the proviso, the particular nonpicketing communication the Page 485 U. S. 583 proviso protects might have been considered to be coercive, even if other forms of publicity would not be. Section 8(b)(4), with its proviso, may thus be read as not covering nonpicketing publicity, including appeals to customers of a retailer as they approach the store, urging a complete boycott of the retailer because he handles products produced by nonunion shops. [Footnote 6]The Board's reading of § 8(b)(4) would make an unfair labor practice out of any kind of publicity or communication to the public urging a consumer boycott of employers other than those the proviso specifically deals with. [Footnote 7] On the facts of this case, newspaper, radio, and television appeals not to patronize the mall would be prohibited; and it would be an unfair labor practice for unions in their own meetings to urge their members not to shop in the mall. Nor could a union's handbills simply urge not shopping at a department store because it is using a nonunion contractor, although the union could safely ask the store's customers not to buy there because it is selling mattresses not carrying the union label. It is difficult, to say the least, to fathom why Congress would consider appeals urging a boycott of a distributor of a nonunion product to be more deserving of protection than nonpicketing persuasion of customers of other neutral employers such as that involved in this case.Neither do we find any clear indication in the relevant legislative history that Congress intended § 8(b)(4)(ii)(B) to proscribe Page 485 U. S. 584 peaceful handbilling, unaccompanied by picketing, urging a consumer boycott of a neutral employer. That section was one of several amendments to the NLRA enacted in 1959 and aimed at closing what were thought to be loopholes in the protections to which secondary employers were entitled. We recounted the legislative history in Tree Fruits and NLRB v. Servette, Inc., 377 U. S. 46 (1964), and the Court of Appeals carefully reexamined it in this case and found "no affirmative intention of Congress clearly expressed to prohibit nonpicketing labor publicity." 796 F.2d at 1346. For the following reasons, for the most part expressed by the Court of Appeals, we agree with that conclusion.First, among the concerns of the proponents of the provision barring threats, coercion, or restraints aimed at secondary employers was consumer boycotts of neutral employers carried out by picketing. At no time did they suggest that merely handbilling the customers of the neutral employer was one of the evils at which their proposals were aimed. Had they wanted to bar any and all nonpicketing appeals, through newspapers, radio, television, handbills, or otherwise, the debates and discussions would surely have reflected this intention. Instead, when asked, Congressman Griffin, cosponsor of the bill that passed the House, stated that the bill covered boycotts carried out by picketing neutrals, but would not interfere with the constitutional right of free speech. 105 Cong.Rec. 15673, 2 Leg.Hist. 1615.Second, the only suggestions that the ban against coercing secondary employers would forbid peaceful persuasion of customers by means other than picketing came from the opponents of any proposals to close the perceived loopholes in § 8(b)(4). Among their arguments in both the House and the Senate was that picketing and handbilling a neutral employer to force him to cease dealing in the products of an employer engaged in labor disputes, appeals which were then said to be legal, would be forbidden by the proposal that became § 8(b) (4)(ii)(B). The prohibition, it was said,"reaches not only Page 485 U. S. 585 picketing but leaflets, radio broadcasts, and newspaper advertisements, thereby interfering with freedom of speech."105 Cong.Rec. 15540, 2 Leg.Hist. 1576. [Footnote 8] The views of opponents of a bill with respect to its meaning, however, are not persuasive:"[W]e have often cautioned against the danger, when interpreting a statute, of reliance upon the views of its legislative opponents. In their zeal to defeat a bill, they understandably tend to overstate its reach. 'The fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of the statutory words is in doubt.'"Tree Fruits, 377 U.S. at 377 U. S. 66 (quoting Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 341 U. S. 394-395 (1951)). Without more, the interpretation put on the words "threaten, coerce, or restrain" by those opposed to the amendment hardly settles the matter.Third, § 8(b)(4)(ii)(B) was one of the amendments agreed upon by a House-Senate Conference on the House's Landrum-Griffin bill and the Senate's Kennedy-Ervin bill. An analysis of the Conference bill was presented in the House by Representative Griffin and in the Senate by Senator Goldwater. With respect to appeals to consumers, the summary said that Page 485 U. S. 586 the House provision prohibiting secondary consumer picketing was adopted, but "with clarification that other forms of publicity are not prohibited." 105 Cong.Rec. 18706, Leg.Hist. 1454 (Sen. Goldwater); 105 Cong.Rec. 18022, Leg.Hist. 1712 (Rep. Griffin). [Footnote 9] The clarification referred to was the second proviso to § 8(b)(4). See supra at 485 U. S. 581-582. The Court of Appeals held that, although the proviso was itself confined to advising the customers of an employer that the latter was distributing a product of another employer with whom the union had a labor dispute, the legislative history did not foreclose understanding the proviso as a clarification of the meaning of § 8(b)(4), rather than an exception to a general ban on consumer publicity. We agree with this view.In addition to the summary presented by Senator Goldwater and Representative Griffin, Senator Kennedy, the Chairman of the Conference Committee, in presenting the Conference Report on the Senate floor, 105 Cong.Rec. 17898-17899, 2 Leg.Hist. 1431-1432, stated that, under the amendments as reported by the Conference Committee, a"union can hand out handbills at the shop, can place advertisements in newspapers, can make announcements over Page 485 U. S. 587 the radio, and can carry on all publicity short of having ambulatory picketing in front of a secondary site."And he assured Senator Goldwater that union buy-American campaigns -- that is, publicity requesting that consumers not buy foreign-made products, even though there is no ongoing labor dispute with the actual producer -- would not be prohibited by the section.Senator Kennedy included in his statement, however, the following:"Under the Landrum-Griffin Bill, it would have been impossible for a union to inform the customers of a secondary employer that that employer or store was selling goods which were made under racket conditions or sweatshop conditions, or in a plant where an economic strike was in progress. We were not able to persuade the House conferees to permit picketing in front of that secondary shop, but we were able to persuade them to agree that the union shall be free to conduct informational activity short of picketing."105 Cong.Rec. 17898-17899, 2 Leg.Hist. 1432. The Board relies on this part of the Senator's exposition as an authoritative interpretation of the words "threaten, coerce, or restrain," and argues that, except as saved by the express language of the proviso, informational appeals to customers not to deal with secondary employers are unfair labor practices. The Senator's remarks about the meaning of § 8(b)(4)(ii) echoed his views, and that of others, expressed in opposing and defeating in the Senate any attempts to give more protection to secondary employers from consumer boycotts, whether carried out by picketing or nonpicketing means. See n 8, supra, and accompanying text. And if the proviso added in conference were an exception, rather than a clarification, it surely would not follow, as the Senator said, that, under the Conference bill, unions would be free to "conduct informational activity short of picketing," and could handbill, advertise in newspapers, and carry out Page 485 U. S. 588 all publicity short of ambulatory picketing in front of a secondary site. Nor would buy-American appeals be permissible, for they do not fall within the proviso's terms. At the very least, the Kennedy-Goldwater colloquy falls far short of revealing a clear intent that all nonpicketing appeals to customers urging a secondary boycott were unfair practices unless protected by the express words of the proviso. Nor does that exchange, together with the other bits of legislative history relied on by the Board, rise to that level.In our view, interpreting § 8(b)(4) as not reaching the handbilling involved in this case is not foreclosed either by the language of the section or its legislative history. That construction makes unnecessary passing on the serious constitutional questions that would be raised by the Board's understanding of the statute. Accordingly, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtDeBartolo Corp. v. Gulf Coast Trades Counc., 485 U.S. 568 (1988)Edward J. DeBartolo Corp. v. Florida Gulf CoastBuilding & Construction Trades CouncilNo. 86-1461Argued January 20, 1988Decided April 20, 1988485 U.S. 568SyllabusBecause a construction company building a department store for a tenant at petitioner's shopping mall allegedly paid substandard wages and fringe benefits, respondent union peacefully distributed handbills at the mall's entrances (but did not picket or otherwise patrol), urging customers not to shop at any of the mall's stores until petitioner promised that all mall construction would be done by contractors paying fair wages. A complaint based on petitioner's charge that respondent had committed an unfair labor practice under § 8(b)(4) of the National Labor Relations Act (NLRA) was dismissed by the National Labor Relations Board (Board), which concluded that the handbilling was protected by § 8 (b)(4)'s proviso exempting nonpicketing publicity intended to inform the customers of a distributor of goods that the goods were produced by an employer involved in a labor dispute. The Court of Appeals for the Fourth Circuit affirmed. But this Court reversed on the ground that the publicity proviso did not apply, since petitioner and the other mall tenants did not distribute the construction company's products, and remanded for a determination whether § 8(b)(4) had been violated, and, if so, whether the handbilling was protected by the First Amendment. Edward J. DeBartolo Corp. v. NLRB, 463 U. S. 147. On remand, the Board held that the handbilling violated § 8(b)(4)(ii)(B) -- which forbids a union to "threaten, coerce, or restrain" any person to cease doing business with another person -- but declined to consider First Amendment questions. Because it had serious doubts about § 8(b)(4)'s constitutionality under the Board's interpretation, the Court of Appeals below applied NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, and ruled that neither the statute's language nor its legislative history revealed a clear congressional intent to proscribe such handbilling. Consequently, construing the section as not prohibiting consumer publicity, the court denied enforcement of the Board's order.Held: The Court of Appeals did not err in construing § 8(b)(4) as not reaching respondent's handbilling. That construction makes it unnecessary to pass upon the serious First Amendment questions that would be raised by the Board's interpretation. Pp. 485 U. S. 574-588. Page 485 U. S. 569(a) Although the Board's NLRA interpretations are normally entitled to deference, where, as here, an otherwise acceptable construction would raise serious constitutional problems, Catholic Bishop requires courts to construe the statute to avoid such problems unless such construction is plainly contrary to Congress' intent. Pp. 485 U. S. 574-578.(b) Section 8(b)(4) does not contain any clear expression of congressional intent to proscribe respondent's handbilling. Contrary to the Board's interpretation, such handbilling need not be held to "coerce" mall customers or secondary employers within the meaning of § 8(b) (4)(ii)(B), since there was no violence, picketing, patrolling, or other intimidating conduct, but only an attempt to persuade customers not to shop in the mall. Cf. NLRB v. Fruit Packers, 377 U. S. 58. NLRB v. Retail Store Employees, 447 U. S. 607, distinguished. Moreover, the fact that handbilling and other nonpicketing consumer appeals not involving a distributor are outside the publicity proviso's protection does not require the conclusion that such appeals must be considered coercive under § 8(b)(4)(ii). It was this very issue on which this Court earlier remanded this case. The proviso need not be treated as establishing an exception to an otherwise all-encompassing prohibition on publicity, but may more reasonably be read as providing protection for a type of communication that might otherwise be considered coercive, even though other forms of publicity would not be so considered. Nor does the legislative history contain any clear indication that Congress intended § 8(b)(4)(ii) to proscribe peaceful handbilling, unaccompanied by picketing, urging a consumer boycott of a neutral employer. Pp. 485 U. S. 578-588.796 F.2d 1328, affirmed.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR and SCALIA, JJ., concurred in the judgment. KENNEDY, J., took no part in the consideration or decision of the case. Page 485 U. S. 570

1977_77-642

MR. JUSTICE STEVENS delivered the opinion of the Court.Respondent applied for a patent on a "Method for Updating Alarm Limits." The only novel feature of the method is a mathematical formula. In Gottschalk v. Benson, 409 U. S. 63, we held that the discovery of a novel and useful mathematical formula may not be patented. The question in this case is whether the identification of a limited category of useful, though conventional, post-solution applications of such a formula makes respondent's method eligible for patent protection.IAn "alarm limit" is a number. During catalytic conversion processes, operating conditions such as temperature, pressure, and flow rates are constantly monitored. When any of these "process variables" exceeds a predetermined "alarm limit," an alarm may signal the presence of an abnormal condition indicating either inefficiency or perhaps danger. Fixed alarm limits may be appropriate for a steady operation, but during transient operating situations, such as start-up, it may be necessary to "update" the alarm limits periodically.Respondent's patent application describes a method of updating alarm limits. In essence, the method consists of three steps: an initial step which merely measures the present value of the process variable (e.g., the temperature); an intermediate step which uses an algorithm [Footnote 1] to calculate an updated alarm limit value; and a final step in which the actual alarm limit is adjusted to the updated value. [Footnote 2] The only difference Page 437 U. S. 586 between the conventional methods of changing alarm limits and that described in respondent's application rests in the second step -- the mathematical algorithm or formula. Using the formula, an operator can calculate an updated alarm limit once he knows the original alarm base, the appropriate margin of safety, the time interval that should elapse between each updating, the current temperature (or other process variable), and the appropriate weighting factor to be used to average the original alarm base and the current temperature.The patent application does not purport to explain how to select the appropriate margin of safety, the weighting factor, or any of the other variables. Nor does it purport to contain any disclosure relating to the chemical processes at work, the monitoring of process variables, or the means of setting off an alarm or adjusting an alarm system. All that it provides is a formula for computing an updated alarm limit. Although the computations can be made by pencil and paper calculations, the abstract of disclosure makes it clear that the formula is primarily useful for computerized calculations producing automatic adjustments in alarm settings. [Footnote 3]The patent claims cover any use of respondent's formula for updating the value of an alarm limit on any process variable involved in a process comprising the catalytic chemical conversion of hydrocarbons. Since there are numerous processes of that kind in the petrochemical and oil-refining industries, [Footnote 4] the claims cover a broad range of potential uses of the method. They do not, however, cover every conceivable application of the formula. Page 437 U. S. 587IIThe patent examiner rejected the application. He found that the mathematical formula constituted the only difference between respondent's claims and the prior art, and therefore a patent on this method "would, in practical effect, be a patent on the formula or mathematics itself." [Footnote 5] The examiner concluded that the claims did not describe a discovery that was eligible for patent protection.The Board of Appeals of the Patent and Trademark Office sustained the examiner's rejection. The Board also concluded that the "point of novelty in [respondent's] claimed method" [Footnote 6] lay in the formula or algorithm described in the claims, a subject matter that was unpatentable under Benson, supra.The Court of Customs and Patent Appeals reversed. In re Flook, 559 F.2d 21. It read Benson as applying only to claims that entirely preempt a mathematical formula or algorithm, and noted that respondent was only claiming on the use of his method to update alarm limits in a process comprising the catalytic chemical conversion of hydrocarbons. The court reasoned that, since the mere solution of the algorithm would not constitute infringement of the claims, a patent on the method would not preempt the formula.The Acting Commissioner of Patents and Trademarks filed a petition for a writ of certiorari, urging that the decision of the Court of Customs and Patent Appeals will have a debilitating effect on the rapidly expanding computer "software" industry, [Footnote 7] and will require him to process thousands of additional Page 437 U. S. 588 patent applications. Because of the importance of the question, we granted certiorari, 434 U.S. 1033.IIIThis case turns entirely on the proper construction of § 101 of the Patent Act, which describes the subject matter that is eligible for patent protection. [Footnote 8] It does not involve the familiar issues of novelty and obviousness that routinely arise under §§ 102 and 103 when the validity of a patent is challenged. For the purpose of our analysis, we assume that respondent's formula is novel and useful, and that he discovered it. We also assume, since respondent does not challenge the examiner's finding, that the formula is the only novel feature of respondent's method. The question is whether the discovery of this feature makes an otherwise conventional method eligible for patent protection.The plain language of § 101 does not answer the question. It is true, as respondent argues, that his method is a "process" in the ordinary sense of the word. [Footnote 9] But that was also true of the algorithm, which described a method for converting binary-coded decimal numerals into pure binary numerals, Page 437 U. S. 589 that was involved in Gottschalk v. Benson. The holding that the discovery of that method could not be patented as a "process" forecloses a purely literal reading of § 101. [Footnote 10] Reasoning that an algorithm, or mathematical formula, is like a law of nature, Benson applied the established rule that a law of nature cannot be the subject of a patent. Quoting from earlier cases, we said:"'A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.' Le Roy v. Tatham, 14 How. 156, 55 U. S. 175. Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work."409 U.S. at 409 U. S. 67.The line between a patentable "process" and an unpatentable "principle" is not always clear. Both are "conception[s] of the mind, seen only by [their] effects when being executed or performed." Tilghman v. Proctor, 102 U. S. 707, 102 U. S. 728. In Benson, we concluded that the process application in fact sought to patent an idea, noting that"[t]he mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that, if the judgment below is affirmed, the patent would wholly preempt the mathematical formula and, in practical effect, would be a patent on the algorithm itself."409 U.S. at 409 U. S. 71-72.Respondent correctly points out that this language does not apply to his claims. He does not seek to "wholly preempt the mathematical formula," since there are uses of his Page 437 U. S. 590 formula outside the petrochemical and oil refining industries that remain in the public domain. And he argues that the presence of specific "post-solution" activity -- the adjustment of the alarm limit to the figure computed according to the formula -- distinguishes this case from Benson and makes his process patentable. We cannot agree.The notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula; the Pythagorean theorem would not have been patentable, or partially patentable, because a patent application contained a final step indicating that the formula, when solved, could be usefully applied to existing surveying techniques. [Footnote 11] The concept of patentable subject matter under § 101 is not "like a nose of wax, which may be turned and twisted in any direction. . . ." White v. Dunbar, 119 U. S. 47, 119 U. S. 51.Yet it is equally clear that a process is not unpatentable simply because it contains a law of nature or a mathematical algorithm. See Eibel Process Co. v. Minnesota Ontario Paper Co., 261 U. S. 45; Tilghman v. Proctor, supra. [Footnote 12] For Page 437 U. S. 591 instance, in Mackay Radio & Telegraph Co. v. Radio Corp. of America, 306 U. S. 86, the applicant sought a patent on a directional antenna system in which the wire arrangement was determined by the logical application of a mathematical formula. Putting the question of patentability to one side as a preface to his analysis of the infringement issue, Mr. Justice Stone, writing for the Court, explained:"While a scientific truth, or the mathematical expression of it, is not patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be."Id. at 306 U. S. 94.Funk Bros. Seed Co. v. Kalo Co., 333 U. S. 127, 333 U. S. 130, expresses a similar approach:"He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end."Mackay Radio and Funk Bros. point to the proper analysis for this case: the process itself, not merely the mathematical algorithm, must be new and useful. Indeed, the novelty of the mathematical algorithm is not a determining factor at all. Whether the algorithm was in fact known or unknown at the time of the claimed invention, as one of the "basic tools of scientific and technological work," see Gottschalk v. Benson, Page 437 U. S. 592 409 U.S. at 409 U. S. 67, it is treated as though it were a familiar part of the prior art.This is also the teaching of our landmark decision in O'Reilly v. Morse, 15 How. 62. In that case, the Court rejected Samuel Morse's broad claim covering any use of electromagnetism for printing intelligible signs, characters, or letters at a distance. Id. at 56 U. S. 112-121. In reviewing earlier cases applying the rule that a scientific principle cannot be patented, the Court placed particular emphasis on the English case of Neilson v. Harford, Web.Pat.Cases 295, 371 (1844), which involved the circulation of heated air in a furnace system to increase its efficiency. The English court rejected the argument that the patent merely covered the principle that furnace temperature could be increased by injecting hot air, instead of cold into the furnace. That court's explanation of its decision was relied on by this Court in Morse:"'It is very difficult to distinguish it [the Neilson patent] from the specification of a patent for a principle, and this at first created in the minds of the court much difficulty; but after full consideration, we think that the plaintiff does not merely claim a principle, but a machine, embodying a principle, and a very valuable one. We think the case must be considered as if the principle being well known, the plaintiff had first invented a mode of applying it. . . .'"15 How. at 56 U. S. 115 (emphasis added). [Footnote 13] We think this case must also be considered as if the principle or mathematical formula were well known.Respondent argues that this approach improperly imports into § 101 the considerations of "inventiveness" which are the proper concerns of §§ 102 and 103. [Footnote 14] This argument is based on two fundamental misconceptions. Page 437 U. S. 593First, respondent incorrectly assumes that, if a process application implements a principle in some specific fashion, it automatically falls within the patentable subject matter of § 101 and the substantive patentability of the particular process can then be determined by the conditions of §§ 102 and 103. This assumption is based on respondent's narrow reading of Benson, and is as untenable in the context of § 101 as it is in the context of that case. It would make the determination of patentable subject matter depend simply on the draftsman's art, and would ill serve the principles underlying the prohibition against patents for "ideas" or phenomena of nature. The rule that the discovery of a law of nature cannot be patented rests not on the notion that natural phenomena are not processes, but rather on the more fundamental understanding that they are not the kind of "discoveries" that the statute was enacted to protect. [Footnote 15] The obligation to determine what type of discovery is sought to be patented must precede the determination of whether that discovery is, in fact, new or obvious.Second, respondent assumes that the fatal objection to his application is the fact that one of its components -- the mathematical Page 437 U. S. 594 formula -- consists of unpatentable subject matter. In countering this supposed objection, respondent relies on opinions by the Court of Customs and Patent Appeals which reject the notion"that a claim may be dissected, the claim components searched in the prior art, and, if the only component found novel is outside the statutory classes of invention, the claim may be rejected under 35 U.S.C. § 101."In re Chatfield, 545 F.2d 152, 15 (CCPA 1976). [Footnote 16] Our approach to respondent's application is, however, not at all inconsistent with the view that a patent claim must be considered as a whole. Respondent's process is unpatentable under § 101 not because it contains a mathematical algorithm as one component, but because, once that algorithm is assumed to be within the prior art, the application, considered as a whole, contains no patentable invention. Even though a phenomenon of nature or mathematical formula may be well known, an inventive application of the principle may be patented. Conversely, the discovery of such a phenomenon cannot support a patent unless there is some other inventive concept in its application.Here it is absolutely clear that respondent's application contains no claim of patentable invention. The chemical processes involved in catalytic conversion of hydrocarbons are well known, as are the practice of monitoring the chemical process variables, the use of alarm limits to trigger alarms, the notion that alarm limit values must be recomputed and readjusted, and the use of computers for "automatic monitoring alarming." [Footnote 17] Respondent's application simply provides a new and presumably better method for calculating alarm limit Page 437 U. S. 595 values. If we assume that that method was also known, as we must under the reasoning in Morse, then respondent's claim is, in effect, comparable to a claim that the formula 2�r can be usefully applied in determining the circumference of a wheel. [Footnote 18] As the Court of Customs and Patent Appeals has explained,"if a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory."In re Richman, 563 F.2d 1026, 1030 (1977).To a large extent, our conclusion is based on reasoning derived from opinions written before the modern business of developing programs for computers was conceived. The youth of the industry may explain the complete absence of precedent supporting patentability. Neither the dearth of precedent nor this decision should therefore be interpreted as reflecting a judgment that patent protection of certain novel and useful computer programs will not promote the progress of science and the useful arts, or that such protection is undesirable as a matter of policy. Difficult questions of policy concerning the kinds of programs that may be appropriate for patent protection and the form and duration of such protection can be answered by Congress on the basis of current empirical data not equally available to this tribunal. [Footnote 19] Page 437 U. S. 596It is our duty to construe the patent statutes as they now read, in light of our prior precedents, and we must proceed cautiously when we are asked to extend patent rights into areas wholly unforeseen by Congress. As MR. JUSTICE WHITE explained in writing for the Court in Deepsouth Packing Co. v. Latram Corp., 406 U. S. 518, 406 U. S. 531:"[W]e should not expand patent rights by overruling or modifying our prior cases construing the patent statutes unless the argument for expansion of privilege is based on more than mere inference from ambiguous statutory language. We would require a clear and certain signal from Congress before approving the position of a litigant who, as respondent here, argues that the beachhead of privilege is wider, and the area of public use narrower, than courts had previously thought. No such signal legitimizes respondent's position in this litigation."The judgment of the Court of Customs and Patent Appeals isReversed

U.S. Supreme CourtParker v. Flook, 437 U.S. 584 (1978)Parker v. FlookNo. 77-642Argued April 25, 1978Decided June 22, 1978437 U.S. 584SyllabusRespondent's method for updating alarm limits during catalytic conversion processes, in which the only novel feature is a mathematical formula, held not patentable under § 101 of the Patent Act. The identification of a limited category of useful, though conventional, post-solution applications of such a formula does not make the method eligible for patent protection, since, assuming the formula to be within prior art, as it must be, O'Reilly v. Morse, 15 How. 62, respondent's application contains no patentable invention. The chemical processes involved in catalytic conversion are well known, as are the monitoring of process variables, the use of alarm limits to trigger alarms, the notion that alarm limit values must be recomputed and readjusted, and the use of computers for "automatic process monitoring." Pp. 437 U. S. 588-596.559 F.2d 21, reversed.STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. STEWART, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 437 U. S. 598. Page 437 U. S. 585

1979_79-66

MR. JUSTICE STEWART delivered the opinion of the Court.The issue in this case is whether the Securities and Exchange Commission (Commission) is required to establish scienter as an element of a civil enforcement action to enjoin violations of § 17(a) of the Securities Act of 1933 (1933 Act), § 10(b) of the Securities Exchange Act of 1934 (1934 Act), and Commission Rule 10b-5 promulgated under that section of the 1934 Act.IWhen the events giving rise to this enforcement proceeding occurred, the petitioner was a managerial employee at E. L. Aaron & Co. (the firm), a registered broker-dealer with its principal office in New York City. Among other responsibilities at the firm, the petitioner was charged with supervising the sales made by its registered representatives and maintaining the so-called "due diligence" files for those securities in which the firm served as a market maker. One such security was the common stock of Lawn-A-Mat Chemical & Equipment Corp. (Lawn-A-Mat), a company engaged in the business of selling lawn-care franchises and supplying its franchisees with products and equipment.Between November, 1974, and September, 1975, two registered representatives of the firm, Norman Schreiber and Donald Jacobson, conducted a sales campaign in which they repeatedly made false and misleading statements in an effort to solicit orders for the purchase of Lawn-A-Mat common stock. During the course of this promotion, Schreiber and Jacobson informed prospective investors that Lawn-A-Mat was planning or in the process of manufacturing a new type of small car and tractor, and that the car would be marketed within six weeks. Lawn-A-Mat, however, had no such plans. The two registered representatives also made projections of Page 446 U. S. 683 substantial increases in the price of Lawn-A-Mat common stock and optimistic statements concerning the company's financial condition. These projections and statements were without basis in fact, since Lawn-A-Mat was losing money during the relevant period.Upon receiving several complaints from prospective investors, an officer of Lawn-A-Mat informed Schreiber and Jacobson that their statements were false and misleading and requested them to cease making such statements. This request went unheeded.Thereafter, Milton Kean, an attorney representing Lawn-A-Mat, communicated with the petitioner twice by telephone. In these conversations, Kean informed the petitioner that Schreiber and Jacobson were making false and misleading statements and described the substance of what they were saying. The petitioner, in addition to being so informed by Kean, had reason to know that the statements were false, since he knew that the reports in Lawn-A-Mat's due diligence file indicated a deteriorating financial condition and revealed no plans for manufacturing a new car and tractor. Although assuring Kean that the misrepresentations would cease, the petitioner took no affirmative steps to prevent their recurrence. The petitioner's only response to the telephone calls was to inform Jacobson of Kean's complaint and to direct him to communicate with Kean. Otherwise, the petitioner did nothing to prevent the two registered representatives under his direct supervision from continuing to make false and misleading statements in promoting Lawn-A-Mat common stock.In February, 1976, the Commission filed a complaint in the District Court for the Southern District of New York against the petitioner and seven other defendants in connection with the offer and sale of Lawn-A-Mat common stock. In seeking preliminary and final injunctive relief pursuant to § 2(b) of the 1933 Act and § 21(d) of the 1934 Act, the Commission alleged that the petitioner had violated and aided and abetted Page 446 U. S. 684 violations of three provisions -- § 17(a) of the 1933 Act, § 10(b) of the 1934 Act, and Commission Rule 10b-5 promulgated under that section of the 1934 Act. [Footnote 1] The gravamen of the charges against the petitioner was that he knew or had reason to know that the employees under his supervision were engaged in fraudulent practices, but failed to take adequate steps to prevent those practices from continuing. Before commencement of the trial, all the defendants except the petitioner consented to the entry of permanent injunctions against them.Following a bench trial, the District Court found that the petitioner had violated and aided and abetted violations of § 17(a), § 10(b), and Rule 10b-5 during the Lawn-A-Mat sales campaign, and enjoined him from future violations of these provisions. [Footnote 2] The District Court's finding of past violations was based upon its factual finding that the petitioner had intentionally failed to discharge his supervisory responsibility to stop Schreiber and Jacobson from making statements to prospective investors that the petitioner knew to be false and misleading. Although noting that negligence alone might suffice to establish a violation of the relevant provisions in a Commission enforcement action, the District Court concluded that the fact that the petitioner"intentionally failed to terminate the false and misleading statements made by Schreiber and Jacobson knowing them to be fraudulent, is sufficient to establish his scienter under the securities laws."As to the remedy, even though the firm had since gone bankrupt and the petitioner was no longer working for a broker-dealer, Page 446 U. S. 685 the District Court reasoned that injunctive relief was warranted in light of"the nature and extent of the violations . . the [petitioner's] failure to recognize the wrongful nature of his conduct and the likelihood of the [petitioner's] repeating his violative conduct."The Court of Appeals for the Second Circuit affirmed the judgment. 605 F.2d 612. Declining to reach the question whether the petitioner's conduct would support a finding of scienter, the Court of Appeals held instead that, when the Commission is seeking injunctive relief, "proof of negligence alone will suffice" to establish a violation of § 17(a), § 10(b), and Rule 10b-5. Id. at 619. With regard to § 10(b) and Rule 10b-5, the Court of Appeals noted that this Court's opinion in Ernst & Ernst v. Hochfelder, 425 U. S. 185, which held that an allegation of scienter is necessary to state a private cause of action for damages under § 10(b) and Rule 10b-5, had expressly reserved the question whether scienter must be alleged in a suit for injunctive relief brought by the Commission. Id. at 425 U. S. 194, n. 12. The conclusion of the Court of Appeals that the scienter requirement of Hochfelder does not apply to Commission enforcement proceedings was said to find support in the language of § 10(b), the legislative history of the 1934 Act, the relationship between § 10(b) and the overall enforcement scheme of the securities laws, and the "compelling distinctions between private damage actions and government injunction actions." [Footnote 3] For its holding that scienter Page 446 U. S. 686 is not a necessary element in a Commission injunctive action to enforce § 17(a), the Court of Appeals relied on its earlier decision in SEC v. Coen, 581 F.2d 1020 (1978). There that court had noted that the language of § 17(a) contains nothing to suggest a requirement of intent, and that, in enacting § 17(a), Congress had considered a scienter requirement, but instead "opted for liability without willfulness, intent to defraud, or the like." Id. at 1027-1028. [Footnote 4] Finally, the Court of Appeals affirmed the District Court's holding that, under all the facts and circumstances of this case, the Commission was entitled to injunctive relief. 605 F.2d at 623-624.We granted certiorari to resolve the conflict in the federal courts as to whether the Commission is required to establish scienter -- an intent on the part of the defendant to deceive, manipulate, or defraud [Footnote 5] -- as an element of a Commission enforcement action to enjoin violations of § 17(a), [Footnote 6] § 10(b), and Rule 10b-5. [Footnote 7] 444 U.S. 914. Page 446 U. S. 687IIThe two substantive statutory provisions at issue here are § 17(a) of the 1933 Act, 48 Stat. 84, as amended, 15 U.S.C. § 77q(a), and § 10(b) of the 1934 Act, 48 Stat. 891, 15 U.S.C. § 78j(b). Section 17(a), which applies only to sellers, provides:"It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly -- ""(1) to employ any device, scheme, or artifice to defraud, or""(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or""(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser."Section 10(b), which applies to both buyers and sellers, makes it"unlawful for any person . . . [t]o use or employ, in connection with the purchase or sale of any security . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors."Pursuant to its rulemaking Page 446 U. S. 688 power under this section, the Commission promulgated Rule 10b-5, which now provides:"It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,""(a) To employ any device, scheme, artifice to defraud,""(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or""(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security."17 CFR § 240.10b-5 (1979).The civil enforcement mechanism for these provisions consists of both express and implied remedies. One express remedy is a suit by the Commission for injunctive relief. Section 20(b) of the 1933 Act, 48 Stat. 86, as amended, as set forth in 15 U.S.C. § 77t(b), provides:"Whenever it shall appear to the Commission that any person is engaged or about to engage in any acts or practices which constitute or will constitute a violation of the provisions of this subchapter [e.g., § 17(a)], or of any rule or regulation prescribed under authority thereof, it may in its discretion, bring an action in any district court of the United States . . . to enjoin such acts or practices, and upon a proper showing a permanent or temporary injunction or restraining order shall be granted without bond."Similarly, § 21(d) of the 1934 Act, 48 Stat. 900, as amended, 15 U.S.C. § 78u(d), authorizes the Commission to seek injunctive relief whenever it appears that a person "is engaged or is about to engage in acts or practices constituting" Page 446 U. S. 689 a violation of the 1934 Act (e.g., § 10(b)), or regulations promulgated thereto (e.g., Rule 10b-5), and requires a district court, "upon a proper showing," to grant injunctive relief.Another facet of civil enforcement is a private cause of action for money damages. This remedy, unlike the Commission injunctive action, is not expressly authorized by statute, but rather has been judicially implied. See Ernst & Ernst v. Hochfelder, 425 U.S. at 425 U. S. 196-197. Although this Court has repeatedly assumed the existence of an implied cause of action under § 10(b) and Rule 10b-5, see Ernst & Ernst v. Hochfelder, supra; Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 421 U. S. 730; Affiliated Ute Citizens v. United States, 406 U. S. 128, 406 U. S. 150-154; Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U. S. 6, 404 U. S. 13, n. 9, it has not had occasion to address the question whether a private cause of action exists under § 17(a). See Blue Chip Stamps v. Manor Drug Stores, supra at 421 U. S. 733, n. 6.The issue here is whether the Commission, in seeking injunctive relief either under § 20(b) for violations of § 17(a) or under § 21(d) for violations of § 10(b) or Rule 10b-5, is required to establish scienter. Resolution of that issue could depend upon (1) the substantive provisions of § 17(a), § 10(b), and Rule 10b-5, or (2) the statutory provisions authorizing injunctive relief "upon a proper showing," § 20(b) and § 21(d). We turn to an examination of each to determine the extent to which they may require proof of scienter.AIn determining whether scienter is a necessary element of a violation of § 10(b) and Rule 10b-5, we do not write on a clean slate. Rather, the starting point for our inquiry is Ernst & Ernst v. Hochfelder, supra, a case in which the Court concluded that a private cause of action for damages will not lie under § 10(b) and Rule 10b-5 in the absence of an allegation of scienter. Although the issue presented in the Page 446 U. S. 690 present case was expressly reserved in Hochfelder, supra at 425 U. S. 193, n. 12, we nonetheless must be guided by the reasoning of that decision.The conclusion in Hochfelder that allegations of simple negligence could not sustain a private cause of action for damages under § 10(b) and Rule 10b-5 rested on several grounds. The most important was the plain meaning of the language of § 10(b). It was the view of the Court that the terms "manipulative," "device," and "contrivance" -- whether given their commonly accepted meaning or read as terms of art -- quite clearly evinced a congressional intent to proscribe only "knowing or intentional misconduct." 425 U.S. at 425 U. S. 197-199. This meaning, in fact, was thought to be so unambiguous as to suggest that "further inquiry may be unnecessary." Id. at 425 U. S. 201.The Court in Hochfelder nonetheless found additional support for its holding in both the legislative history of § 10(b) and the structure of the civil liability provisions in the 1933 and 1934 Acts. The legislative history, though "bereft of any explicit explanation of Congress' intent," contained "no indication . . . that § 10(b) was intended to proscribe conduct not involving scienter." Id. at 425 U. S. 201-202. Rather, as the Court noted, a spokesman for the drafters of the predecessor of § 10(b) described its function as a "catch-all clause to prevent manipulative devices.'" Id. at 425 U. S. 202. This description, as well as various passages in the Committee Reports concerning the evils to which the 1934 Act was directed, evidenced a purpose to proscribe only knowing or intentional misconduct. Moreover, with regard to the structure of the 1933 and 1934 Acts, the Court observed that, in each instance in which Congress had expressly created civil liability, it had specified the standard of liability. To premise civil liability under § 10(b) on merely negligent conduct, the Court concluded, would run counter to the fact that, wherever Congress intended to accomplish that result, it said so expressly and subjected such actions to significant procedural restraints not applicable to § 10(b). Page 446 U. S. 691 Id. at 425 U. S. 206-211. Finally, since the Commission's rulemaking power was necessarily limited by the ambit of its statutory authority, the Court reasoned that Rule 10b.-5 must likewise be restricted to conduct involving scienter. [Footnote 8]In our view, the rationale of Hochfelder ineluctably leads to the conclusion that scienter is an element of a violation of § 10(b) and Rule 10b-5, regardless of the identity of the plaintiff or the nature of the relief sought. Two of the three factors relied upon in Hochfelder -- the language of § 10(b) and its legislative history -- are applicable whenever a violation of § 10(b) or Rule 10b-5 is alleged, whether in a private cause of action for damages or in a Commission injunctive action under § 21(d). [Footnote 9] In fact, since Hochfelder involved an implied cause of action that was not within the contemplation of the Congress that enacted § 10(b), id. at 425 U. S. 196, it would be quite anomalous in a case like the present one, involving as it does the express remedy Congress created for § 10(b) violations, not to attach at least as much significance to the fact that the statutory language and its legislative history support a scienter requirement.The Commission argues that Hochfelder, which involved a private cause of action for damages, is not a proper guide in construing § 10(b) in the present context of a Commission enforcement action for injunctive relief. We are urged instead to look to SEC v. Capital Gains Research Bureau, 375 U.S. Page 446 U. S. 692 18. That case involved a suit by the Commission for injunctive relief to enforce the prohibition in § 206(2) of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-6, against any act or practice of an investment adviser that "operates as a fraud or deceit upon any client or prospective client." The injunction sought in Capital Gains was to compel disclosure of a practice known as "scalping," whereby an investment adviser purchases shares of a given security for his own account shortly before recommending the security to investors as a long-term investment, and then promptly sells the shares at a profit upon the rise in their market value following the recommendation.The issue in "Capital Gains" was whether, in an action for injunctive relief for violations of § 206(2), [Footnote 10] the Commission must prove that the defendant acted with an intent to defraud. The Court held that a showing of intent was not required. This conclusion rested upon the fact that the legislative history revealed that the"Investment Advisers Act of 1940 . . . reflects a congressional recognition 'of the delicate fiduciary nature of an investment advisory relationship,' as well as a congressional intent to eliminate, or at least to expose, all conflicts of interest which might incline an investment adviser -- consciously or unconsciously -- to render advice which Page 446 U. S. 693 was not disinterested."375 U.S. at 375 U. S. 91-192 (footnote omitted). To require proof of intent, the Court reasoned, would run counter to the expressed intent of Congress.The Court added that its conclusion was "not in derogation of the common law of fraud." Id. at 375 U. S. 192. Although recognizing that intent to defraud was a necessary element at common law to recover money damages for fraud in an arm's length transaction, the Court emphasized that the Commission's action was not a suit for damages, but rather a suit for an injunction in which the relief sought was the "mild prophylactic" of requiring a fiduciary to disclose his transactions in stocks he was recommending to his clients. Id. at 375 U. S. 193. The Court observed that it was not necessary in a suit for "equitable or prophylactic relief" to establish intent, for "[f]raud has a broader meaning in equity [than at law] and intention to defraud or to misrepresent is not a necessary element." Ibid., quoting W. De Funiak, Handbook of Modern Equity 235 (2d ed.1956). Moreover, it was not necessary, the Court said, in a suit against a fiduciary such as an investment adviser, to establish all the elements of fraud that would be required in a suit against a party to an arm's length transaction. Finally, the Court took cognizance of a"growing recognition by common law courts that the doctrines of fraud and deceit which developed around transactions involving land and other tangible items of wealth are ill-suited to the sale of such intangibles as advice and securities, and that, accordingly, the doctrines must be adapted to the merchandise in issue."375 U.S. at 375 U. S. 194. Unwilling to assume that Congress was unaware of these developments at common law, the Court concluded that they "reinforce[d]" its holding that Congress had not sought to require a showing of intent in actions to enjoin violations of § 206(2). Id. at 375 U. S. 195.The Commission argues that the emphasis in Capital Gains upon the distinction between fraud at law and in equity should guide a construction of § 10(b) in this suit for injunctive Page 446 U. S. 694 relief. [Footnote 11] We cannot, however, draw such guidance from Capital Gains for several reasons. First, wholly apart from its discussion of the judicial treatment of "fraud" at law and in equity, the Court in Capital Gains found strong support in the legislative history for its conclusion that the Commission need not demonstrate intent to enjoin practices in violation of § 206(2). By contrast, as the Court in Hochfelder noted, the legislative history of § 10(b) points towards a scienter requirement. Second, it is quite clear that the language in question in Capital Gains, "any . . . practice . . . which operates as a fraud or deceit," (emphasis added) focuses not on the intent of the investment adviser, but rather on the effect of a particular practice. Again, by contrast, the Court in Hochfelder found that the language of § 10(b) -- particularly the terms "manipulative," "device," and "contrivance" -- clearly refers to "knowing or intentional misconduct." Finally, insofar as Capital Gains involved a statutory provision regulating the special fiduciary relationship between an investment adviser and his client, the Court there was dealing with a situation in which intent to defraud would not have been required even in a common law action for money damages. [Footnote 12] Page 446 U. S. 695 Section 10(b), unlike the provision at issue in Capital Gains, applies with equal force to both fiduciary and nonfiduciary transactions in securities. It is our view, in sum, that the controlling precedent here is not Capital Gains, but rather Hochfelder. Accordingly, we conclude that scienter is a necessary element of a violation of § 10(b) and Rule 10b-5.BIn determining whether proof of scienter is a necessary element of a violation of § 17(a), there is less precedential authority in this Court to guide us. But the controlling principles are well settled. Though cognizant that"Congress intended securities legislation enacted for the purpose of avoiding frauds to be construed 'not technically and restrictively, but flexibly to effectuate its remedial purposes,'"Affiliated Ute Citizens v. United States, 406 U.S. at 406 U. S. 151, quoting, SEC v. Capital Gains Research Bureau, 375 U.S. at 375 U. S. 195, the Court has also noted that "generalized references to the remedial purposes'" of the securities laws "will not justify reading a provision `more broadly than its language and the statutory scheme reasonably permit.'" Touche Ross Co. v. Redington, 442 U. S. 560, 442 U. S. 578, quoting, SEC v. Sloan, 436 U. S. 103, 436 U. S. 116. Thus, if the language of a provision of the securities laws is sufficiently clear in its context and not at odds with the legislative history, it is unnecessary "to examine the additional considerations of `policy' . . . that may have influenced the lawmakers in their formulation of the statute." Ernst & Ernst v. Hochfelder, 425 U.S. at 425 U. S. 214, n. 33.The language of § 17(a) strongly suggests that Congress contemplated a scienter requirement under § 17(a)(1), but Page 446 U. S. 696 not under § 17(a)(2) or § 17(a)(3). The language of § 17(a)(1), which makes it unlawful "to employ any device, scheme, or artifice to defraud," plainly evinces an intent on the part of Congress to proscribe only knowing or intentional misconduct. Even if it be assumed that the term "defraud" is ambiguous, given its varied meanings at law and in equity, the terms "device," "scheme," and "artifice" all connote knowing or intentional practices. [Footnote 13] Indeed, the term "device," which also appears in § 10(b), figured prominently in the Court's conclusion in Hochfelder that the plain meaning of § 10(b) embraces a scienter requirement. [Footnote 14] Id. at 425 U. S. 199.By contrast, the language of § 17(a)(2), which prohibits any person from obtaining money or property "by means of any untrue statement of a material fact or any omission to state a material fact," is devoid of any suggestion whatsoever of a scienter requirement. As a well known commentator has noted, "[t]here is nothing on the face of Clause (2) itself which smacks of scienter or intent to defraud." 3 L. Loss, Securities Regulation 1442 (2d ed.1961). In fact, this Court in Hochfelder pointed out that the similar language of Rule 10b-5(b)"could be read as proscribing . . . any type of material misstatement or omission . . . that has the effect of defrauding investors, whether the wrongdoing was intentional or not."425 U.S. at 425 U. S. 212.Finally, the language of § 17(a)(3), under which it is Page 446 U. S. 697 unlawful for any person "to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit," (emphasis added) quite plainly focuses upon the effect of particular conduct on members of the investing public, rather than upon the culpability of the person responsible. This reading follows directly from Capital Gains, which attributed to a similarly worded provision in § 206(2) of the Investment Advisers Act of 1940 a meaning that does not require a "showing [of] deliberate dishonesty as a condition precedent to protecting investors." 375 U.S. at 375 U. S. 200.It is our view, in sum, that the language of § 17(a) requires scienter under § 17(a)(1), but not under § 17(a)(2) or § 17(a)(3). Although the parties have urged the Court to adopt a uniform culpability requirement for the three subparagraphs of § 17(a), the language of the section is simply not amenable to such an interpretation. This is not the first time that this Court has had occasion to emphasize the distinctions among the three subparagraphs of § 17(a). In United States v. Naftalin, 441 U. S. 768, 441 U. S. 774, the Court noted that each subparagraph of § 17(a)"proscribes a distinct category of misconduct. Each succeeding prohibition is meant to cover additional kinds of illegalities -- not to narrow the reach of the prior sections."(Footnote omitted.) Indeed, since Congress drafted § 17(a) in such a manner as to compel the conclusion that scienter is required under one subparagraph but not under the other two, it would take a very clear expression in the legislative history of congressional intent to the contrary to justify the conclusion that the statute does not mean what it so plainly seems to say.We find no such expression of congressional intent in the legislative history. The provisions ultimately enacted as § 17(a) had their genesis in § 13 of identical bills introduced simultaneously in the House and Senate in 1933. H.R. 4314, 73d Cong., 1st Sess. (Mar. 29, 1933); S. 875, 73d Cong., 1st Page 446 U. S. 698 Sess. (Mar. 29, 1933). [Footnote 15] As originally drafted, § 13 would have made it unlawful for any person"willfully to employ any device, scheme, or artifice to defraud or to obtain money or property by means of any false pretense, representation, or promise, or to engage in any transaction, practice, or course of business . . . which operates or would operate as a fraud upon the purchaser."Hearings on these bills were conducted by both the House Interstate and Foreign Commerce Committee and the Senate Banking and Currency Committee.The House and Senate Committees reported out different versions of § 13. The Senate Committee expanded its ambit by including protection against the intentionally fraudulent practices of a "dummy," a person holding legal or nominal title but under a moral or legal obligation to act for someone else. As amended by the Senate Committee, § 13 made it unlawful for any person"willfully to employ any device, scheme, or artifice or to employ any 'dummy,' or to act as any such 'dummy,' with the intent to defraud or to obtain money or property by means of any false pretense, representation, or promise, or to engage in any transaction, practice, or course of business . . . which operates or would operate as a fraud upon the purchaser. . . ."See S. 875, 73d Cong., 1st Sess. (Apr. 27, 1933); S.Rep. No. 47, 73d Cong., 1st Sess., 4-5 (1933). The House Committee retained the original version of § 13, except that the word "willfully" was deleted from the beginning of the provision. [Footnote 16] See H.R. 5480, 73d Cong., 1st Sess., § 16(a) (May 4, Page 446 U. S. 699 1933). It also rejected a suggestion that the first clause, "to employ any device, scheme, or artifice," be modified by the phrase, "with intent to defraud." See ibid.; Federal Securities Act: Hearings on H.R. 4314 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 1st Sess., 146 (1933). The House and Senate each adopted the version of the provision as reported out by its Committee. The Conference Committee then adopted the House version with a minor modification not relevant here, see H.R.Conf.Rep. No. 152, 73d Cong., 1st Sess., 12, 27 (1933), and it as later enacted into law as § 17(a) of the 1933 Act.The Commission argues that the deliberate elimination of the language of intent reveals that Congress considered and rejected a scienter requirement under all three clauses of § 17(a). This argument, however, rests entirely on inference, for the Conference Report sheds no light on what the Conference Committee meant to do about the question of scienter under § 17(a). [Footnote 17] The legislative history thus gives rise to the equally plausible inference that the Conference Committee concluded that (1) in light of the plain meaning of § 17(a)(1), the language of intent -- "willfully" and "with intent to defraud" -- was simply redundant, and (2) with regard to § 17(a)(2) and § 17(a)(3), a "willful[ness]" requirement was not to be included. It seems clear, therefore, that the Page 446 U. S. 700 legislative history, albeit ambiguous, may be read in a manner entirely consistent with the plain meaning of § 17(a). [Footnote 18] In the absence of a conflict between reasonably plain meaning and legislative history, the words of the statute must prevail. [Footnote 19]CThere remains to be determined whether the provisions authorizing injunctive relief, § 20(b) of the 1933 Act and § 21(d) of the 1034 Act, modify the substantive provisions at issue in this case so far as scienter is concerned.The language and legislative history of § 20(b) and § 21(d) both indicate that Congress intended neither to add to nor to detract from the requisite showing of scienter under the substantive provisions at issue. Sections 20(b) and 21(d) provide that the Commission may seek injunctive relief whenever it appears that a person "is engaged or [is] about to engage in any acts or practices" constituting a violation of the 1933 or 1934 Acts or regulations promulgated thereunder, and that, "upon a proper showing," a district court shall grant the injunction. The elements of "a proper showing" thus include, at a minimum, proof that a person is engaged in or is about Page 446 U. S. 701 to engage in a substantive violation of either one of the Acts or of the regulations promulgated thereunder. Accordingly, when scienter is an element of the substantive violation sought to be enjoined, it must be proved before an injunction may issue. But with respect to those provisions such as § 17(a)(2) and § 17(a)(3), which may be violated even in the absence of scienter, nothing on the face of § 20(b) or § 21(d) purports to impose an independent requirement of scienter. And there is nothing in the legislative history of either provision to suggest a contrary legislative intent.This is not to say, however, that scienter has no bearing at all on whether a district court should enjoin a person violating or about to violate § 17(a)(2) or § 17(a)(3). In cases where the Commission is seeking to enjoin a person "about to engage in any acts or practices which . . . will constitute" a violation of those provisions, the Commission must establish a sufficient evidentiary predicate to show that such future violation may occur. See SEC v. Commonwealth Chemical Securities, Inc., 574 F.2d 90, 98-100 (CA2 1978) (Friendly, J.); 3 L. Loss, Securities Regulation, at 1976. An important factor in this regard is the degree of intentional wrongdoing evident in a defendant's past conduct. See SEC v. Wills, 472 F. Supp. 1250, 1273-1275 (DC 1978). Moreover, as the Commission recognizes, a district court may consider scienter or lack of it as one of the aggravating or mitigating factors to be taken into account in exercising its equitable discretion in deciding whether or not to grant injunctive relief. And the proper exercise of equitable discretion is necessary to ensure a "nice adjustment and reconciliation between the public interest and private needs." Hecht Co. v. Bowles, 321 U. S. 321, 321 U. S. 329.IIIFor the reasons stated in this opinion, we hold that the Commission is required to establish scienter as an element of a civil enforcement action to enjoin violations of § 17(a)(1) of the 1933 Act, § 10(b) of the 1934 Act, and Rule 10b-5 Page 446 U. S. 702 promulgated under that section of the 1934 Act. We further hold that the Commission need not establish scienter as an element of an action to enjoin violations of § 17(a)(2) and § 17(a)(3) of the 1933 Act. The Court of Appeals affirmed the issuance of the injunction in this case in the misapprehension that it was not necessary to find scienter in order to support an injunction under any of the provisions in question. Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtAaron v. SEC, 446 U.S. 680 (1980)Aaron v. SECNo. 79-66Argued February 25, 1980Decided June 2, 1980446 U.S. 680SyllabusSection 17(a) of the Securities Act of 1933 (1933 Act) makes it unlawful for any person in the offer or sale of any security "(1) to employ any device, scheme, or artifice to defraud, or (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact . . or (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser." Section 10(b) of the Securities Exchange Act of 1934 (1934 Act) makes it unlawful to use, in connection with the purchase or sale of any security, "any manipulative or deceptive device or contrivance" in violation of such regulations as the Securities and Exchange Commission (SEC) may prescribe, and Rule 10b-5 was promulgated to implement this section. Section 20(b) of the 1933 Act and § 21(d) of the 1934 Act authorize the SEC to seek injunctive relief against violations of the respective Acts, and further provide that, "upon a proper showing," a district court shall grant the injunction. Pursuant to §§ 20(b) and 21(d), the SEC filed a complaint in a District Court against petitioner, a managerial employee of a broker-dealer, alleging that he had violated, and aided and abetted violations of, § 17(a) of the 1933 Act, § 10(b) of the 1934 Act, and SEC Rule 10b, in connection with his firm's sales campaign for certain securities. Concluding that there was scienter on petitioner's part, the District Court found that he had committed and aided and abetted the violations as alleged. The Court of Appeals affirmed, declining to decide whether petitioner's conduct would support a finding of scienter and holding instead that, when the SEC is seeking injunctive relief, proof of negligence alone will suffice.Held: The SEC is required to establish scienter as an element of a civil enforcement action to enjoin violations of § 10(b) of the 1934 Act, Rule 105, and § 17(a)(1) of the 1933 Act, but need not establish scienter as an element of an action to enjoin violations of §§ 17(a)(2) and 17(a)(3) of the 1933 Act. Pp. 446 U. S. 687-702.(a) Scienter is an element of violations of § 10(b) and Rule 10b-5, regardless of the identity of the plaintiff or the nature of the relief Page 446 U. S. 681 sought. Ernst & Ernst v. Hochfelder, 425 U. S. 185. Section 10(b)'s language, particularly t.he terms "manipulative," "device," and "contrivance," clearly refer to "knowing and intentional misconduct," and the section's legislative history also points toward a scienter requirement. SEC v. Capital Gains Research Bureau, 375 U. S. 180, distinguished. Pp. 446 U. S. 689-695.(b) Section 17(a)(1)'s language, "to employ any device, scheme, or artifice to defraud," plainly evinces an intent on Congress' part to proscribe only knowing or intentional misconduct. By contrast, § 17(a)(2)'s language, "by means of any untrue statement of a material fact or any omission to state a material fact," is devoid of any suggestion of a scienter requirement. And § 17(a)(3)'s language, "to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit," plainly focuses upon the effect of particular conduct on members of the investing public, rather than upon the culpability of the person responsible. Cf. SEC v. Capital Gains Research Bureau, supra. There is nothing in § 17(a)'s legislative history to show a congressional intent contrary to the conclusion that scienter is thus required under § 17(a)(1) but not under §§ 17(a)(2) and 17(a)(3). Pp. 446 U. S. 695-700.(c) The language and legislative history of §§ 20(b) and 21(d) both indicate that Congress intended neither to add to nor detract from the requisite showing of scienter under the substantive provisions at issue. Pp. 446 U. S. 700-701.605 F.2d 612, vacated and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, REHNQUIST, and STEVENS, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 446 U. S. 702. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, and MARSHALL, JJ., joined, post, p. 446 U. S. 703. Page 446 U. S. 682

1991_91-810

JUSTICE SCALIA delivered the opinion of the Court.This case presents the question whether a court, in determining an award of reasonable attorney's fees under § 7002(e) of the Solid Waste Disposal Act (SWDA), 90 Stat. 2826, as amended, 42 U. S. C. § 6972(e), or § 505(d) of the Federal Water Pollution Control Act (Clean Water Act (CWA)), 86 Stat. 889, as amended, 33 U. S. C. § 1365(d), may enhance the fee award above the "lodestar" amount in order to reflect the fact that the party's attorneys were retained on a contingent-fee basis and thus assumed the risk of receiving no payment at all for their services. Although different fee-shifting statutes are involved, the question is essentially identical to the one we addressed, but did not resolve, in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U. S. 711 (1987) (Delaware Valley II).IRespondent Ernest Dague, Sr. (whom we will refer to in place of all the respondents), owns land in Vermont adjacent to a landfill that was owned and operated by petitioner city of Burlington. Represented by attorneys retained on a contingent-fee basis, he sued Burlington over its operation of the landfill. The District Court ruled, inter alia, that Burlington had violated provisions of the SWDA and the CWA, and ordered Burlington to close the landfill by January 1, 1990. It also determined that Dague was a "substantially prevailing party" entitled to an award of attorney's fees under the Acts, see 42 U. S. C. § 6972(e); 33 U. S. C. § 1365(d). 732 F. Supp. 458 (Vt. 1989).In calculating the attorney's fees award, the District Court first found reasonable the figures advanced by Dague for his attorneys' hourly rates and for the number of hours expended by them, producing a resulting "lodestar" attorney's fee of $198,027.50. (What our cases have termed the "lodestar" is "the product of reasonable hours times a reasonable rate," Pennsylvania v. Delaware Valley Citizens' Council560for Clean Air, 478 U. S. 546, 565 (1986) (Delaware Valley I).) Addressing Dague's request for a contingency enhancement, the court looked to Circuit precedent, which provided that "'the rationale that should guide the court's discretion is whether "[w]ithout the possibility of a fee enhancement ... competent counsel might refuse to represent [environmental] clients thereby denying them effective access to the courts." ", App. to Pet. for Cert. 131-132 (quoting Friends of the Earth v. Eastman Kodak Co., 834 F.2d 295, 298 (CA2 1987), in turn quoting Lewis v. Coughlin, 801 F.2d 570, 576 (CA2 1986)). Following this guidance, the court declared that Dague's "risk of not prevailing was substantial" and that "absent an opportunity for enhancement, [Dague] would have faced substantial difficulty in obtaining counsel of reasonable skill and competence in this complicated field of law." It concluded that "a 25% enhancement is appropriate, but anything more would be a windfall to the attorneys." It therefore enhanced the lodestar amount by 25%-$49,506.87. App. to Pet. for Cert. 133, 134.The Court of Appeals affirmed in all respects. Reviewing the various opinions in Delaware Valley II, the court concluded that the issue whether and when a contingency enhancement is warranted remained open, and expressly disagreed with the position taken by some Courts of Appeals that the concurrence in Delaware Valley II was controlling. The court stated that the District Court had correctly relied on Circuit precedent, and, holding that the District Court's findings were not clearly erroneous, it upheld the 25% contingencyenhancement. 935 F.2d 1343, 1359-1360 (CA2 1991). We granted certiorari only with respect to the propriety of the contingency enhancement. 502 U. S. 1071 (1992).IIWe first provide some background to the issue before us.Fees for legal services in litigation may be either "certain" or "contingent" (or some hybrid of the two). A fee is certain561if it is payable without regard to the outcome of the suit; it is contingent if the obligation to pay depends on a particular result's being obtained. Under the most common contingent-fee contract for litigation, the attorney receives no payment for his services if his client loses. Under this arrangement, the attorney bears a contingent risk of nonpayment that is the inverse of the case's prospects of success: if his client has an 80% chance of winning, the attorney's contingent risk is 20%.In Delaware Valley II, we reversed a judgment that had affirmed enhancement of a fee award to reflect the contingent risk of nonpayment. In the process, we addressed whether the typical federal fee-shifting statute (there, § 304(d) of the Clean Air Act, 42 U. S. C. § 7604(d)) permits an attorney's fees award to be enhanced on account of contingency. In the principal opinion, JUSTICE WHITE, joined on this point by three other Justices, determined that such enhancement is not permitted. 483 U. S., at 723-727. JusTICE O'CONNOR, in an opinion concurring in part and concurring in the judgment, concluded that no enhancement for contingency is appropriate "unless the applicant can establish that without an adjustment for risk the prevailing party would have faced substantial difficulties in finding counsel in the local or other relevant market," id., at 733 (internal quotation marks omitted), and that any enhancement "must be based on the difference in market treatment of contingent fee cases as a class, rather than on an assessment of the 'riskiness' of any particular case," id., at 731 (emphasis in original). JUSTICE BLACKMUN'S dissenting opinion, joined by three other Justices, concluded that enhancement for contingency is always statutorily required. Id., at 737-742,754.We turn again to this same issue.IIISection 7002(e) of the SWDA and § 505(d) of the CWA authorize a court to "award costs of litigation (including rea-562sonable attorney ... fees)" to a "prevailing or substantially prevailing party." 42 U. s. C. § 6972(e) (emphasis added); 33 U. s. C. § 1365(d) (emphasis added). This language is similar to that of many other federal fee-shifting statutes, see, e. g., 42 U. s. C. §§ 1988, 2000e-5(k), 7604(d); our case law construing what is a "reasonable" fee applies uniformly to all of them. Flight Attendants v. Zipes, 491 U. S. 754, 758, n. 2 (1989).The "lodestar" figure has, as its name suggests, become the guiding light of our fee-shifting jurisprudence. We have established a "strong presumption" that the lodestar represents the "reasonable" fee, Delaware Valley I, supra, at 565, and have placed upon the fee applicant who seeks more than that the burden of showing that "such an adjustment is necessary to the determination of a reasonable fee." Blum v. Stenson, 465 U. S. 886, 898 (1984) (emphasis added). The Court of Appeals held, and Dague argues here, that a "reasonable" fee for attorneys who have been retained on a contingency-fee basis must go beyond the lodestar, to compensate for risk of loss and of consequent nonpayment. Feeshifting statutes should be construed, he contends, to replicate the economic incentives that operate in the private legal market, where attorneys working on a contingency-fee basis can be expected to charge some premium over their ordinary hourly rates. Petitioner Burlington argues, by contrast, that the lodestar fee may not be enhanced for contingency.We note at the outset that an enhancement for contingency would likely duplicate in substantial part factors already subsumed in the lodestar. The risk of loss in a particular case (and, therefore, the attorney's contingent risk) is the product of two factors: (1) the legal and factual merits of the claim, and (2) the difficulty of establishing those merits. The second factor, however, is ordinarily reflected in the lodestar-either in the higher number of hours expended to overcome the difficulty, or in the higher hourly rate of the attorney skilled and experienced enough to do so. Blum,563supra, at 898-899. Taking account of it again through lodestar enhancement amounts to double counting. Delaware Valley II, 483 U. S., at 726-727 (plurality opinion).The first factor (relative merits of the claim) is not reflected in the lodestar, but there are good reasons why it should play no part in the calculation of the award. It is, of course, a factor that always exists (no claim has a 100% chance of success), so that computation of the lodestar would never end the court's inquiry in contingent-fee cases. See id., at 740 (BLACKMUN, J., dissenting). Moreover, the consequence of awarding contingency enhancement to take account of this "merits" factor would be to provide attorneys with the same incentive to bring relatively meritless claims as relatively meritorious ones. Assume, for example, two claims, one with underlying merit of 20%, the other of 80%. Absent any contingency enhancement, a contingent-fee attorney would prefer to take the latter, since he is four times more likely to be paid. But with a contingency enhancement, this preference will disappear: the enhancement for the 20% claim would be a multiplier of 5 (100/20), which is quadruple the 1.25 multiplier (100/80) that would attach to the 80% claim. Thus, enhancement for the contingency risk posed by each case would encourage meritorious claims to be brought, but only at the social cost of indiscriminately encouraging nonmeritorious claims to be brought as well. We think that an unlikely objective of the "reasonable fees" provisions. "These statutes were not designed as a form of economic relief to improve the financial lot of lawyers." Delaware Valley I, 478 U. S., at 565.Instead of enhancement based upon the contingency risk posed by each case, Dague urges that we adopt the approach set forth in the Delaware Valley II concurrence. We decline to do so, first and foremost because we do not see how it can intelligibly be applied. On the one hand, it would require the party seeking contingency enhancement to "establish that without the adjustment for risk [he] 'would have faced564substantial difficulties in finding counsel in the local or other relevant market.'" 483 U. S., at 733. On the other hand, it would forbid enhancement based "on an assessment of the 'riskiness' of any particular case." Id., at 731; see id., at 734 (no enhancement "based on 'legal' risks or risks peculiar to the case"). But since the predominant reason that a contingent-fee claimant has difficulty finding counsel in any legal market where the winner's attorney's fees will be paid by the loser is that attorneys view his case as too risky (i. e., too unlikely to succeed), these two propositions, as a practical matter, collide. See King v. Palmer, 292 U. S. App. D. C. 362, 371, 950 F.2d 771, 780 (1991) (en bane), cert. pending sub nom. King v. Ridley, No. 91-1370.A second difficulty with the approach taken by the concurrence in Delaware Valley II is that it would base the contingency enhancement on "the difference in market treatment of contingent fee cases as a class." 483 U. S., at 731 (emphasis in original). To begin with, for a very large proportion of contingency-fee cases-those seeking not monetary damages but injunctive or other equitable relief-there is no "market treatment." Such cases scarcely exist, except to the extent Congress has created an artificial "market" for them by fee shifting-and looking to that "market" for the meaning of fee shifting is obviously circular. Our decrees would follow the "market," which in turn is based on our decrees. See King v. Palmer, 285 U. S. App. D. C. 68, 76, 906 F.2d 762, 770 (1990) (Williams, J., concurring) ("I see the judicial judgment as defining the market, not vice versa"), vacated, 292 U. S. App. D. C. 362, 950 F.2d 771 (1991), cert. pending sub nom. King v. Ridley, No. 91-1370. But even apart from that difficulty, any approach that applies uniform treatment to the entire class of contingent-fee cases, or to any conceivable subject-matter-based subclass, cannot possibly achieve the supposed goal of mirroring market incentives. As discussed above, the contingent risk of a case (and hence the difficulty of getting contingent-fee lawyers to take565it) depends principally upon its particular merits. Contingency enhancement calculated on any class-wide basis, therefore, guarantees at best (leaving aside the doublecounting problem described earlier) that those cases within the class that have the class-average chance of success will be compensated according to what the "market" requires to produce the services, and that all cases having above-classaverage chance of success will be overcompensated.Looking beyond the Delaware Valley II concurrence's approach, we perceive no other basis, fairly derivable from the fee-shifting statutes, by which contingency enhancement, if adopted, could be restricted to fewer than all contingent-fee cases. And we see a number of reasons for concluding that no contingency enhancement whatever is compatible with the fee-shifting statutes at issue. First, just as the statutory language limiting fees to prevailing (or substantially prevailing) parties bars a prevailing plaintiff from recovering fees relating to claims on which he lost, Hensley v. Eckerhart, 461 U. S. 424 (1983), so should it bar a prevailing plaintiff from recovering for the risk of loss. See Delaware Valley II, supra, at 719-720, 724-725 (principal opinion). An attorney operating on a contingency-fee basis pools the risks presented by his various cases: cases that turn out to be successful pay for the time he gambled on those that did not. To award a contingency enhancement under a fee-shifting statute would in effect pay for the attorney's time (or anticipated time) in cases where his client does not prevail.Second, both before and since Delaware Valley II, "we have generally turned away from the contingent-fee model"-which would make the fee award a percentage of the value of the relief awarded in the primary action*-"to*Contrary to JUSTICE BLACKMUN'S understanding, post, at 572, there is no reason in theory why the contingent-fee model could not apply to relief other than damages; where injunctive relief is obtained, for example, the fee award would simply be a percentage of the value of the injunctive relief. There would be, to be sure, severe problems of administration in566the lodestar model." Venegas v. Mitchell, 495 U. S. 82, 87 (1990). We have done so, it must be noted, even though the lodestar model often (perhaps, generally) results in a larger fee award than the contingent-fee model. See, e. g., Report of the Federal Courts Study Committee 104 (Apr. 2, 1990) (lodestar method may "give lawyers incentives to run up hours unnecessarily, which can lead to overcompensation"). For example, in Blanchard v. Bergeron, 489 U. S. 87 (1989), we held that the lodestar governed, even though it produced a fee that substantially exceeded the amount provided in the contingent-fee agreement between plaintiff and his counsel (which was self-evidently an amount adequate to attract the needed legal services). Id., at 96. Contingency enhancement is a feature inherent in the contingent-fee model (since attorneys factor in the particular risks of a case in negotiating their fee and in deciding whether to accept the case). To engraft this feature onto the lodestar model would be to concoct a hybrid scheme that resorts to the contingent-fee model to increase a fee award but not to reduce it. Contingency enhancement is therefore not consistent with our general rejection of the contingent-fee model for fee awards, nor is it necessary to the determination of a reasonable fee.And finally, the interest in ready administrability that has underlain our adoption of the lodestar approach, see, e. g., Hensley, 461 U. S., at 433, and the related interest in avoiding burdensome satellite litigation (the fee application "should not result in a second major litigation," id., at 437), counsel strongly against adoption of contingency enhancement. Contingency enhancement would make the setting of fees more complex and arbitrary, hence more unpredictable, and hence more litigable. It is neither necessary nor even possible for application of the fee-shifting statutes to mimic the intrica-determining the value of injunctive relief, but such problems simply highlight why we have rejected the contingent-fee model in favor of the lodestar model.567cies of the fee-paying market in every respect. See Delaware Valley I, 478 U. S., at 565.***Adopting the position set forth in JUSTICE WHITE'S opinion in Delaware Valley II, 483 U. S., at 715-727, we hold that enhancement for contingency is not permitted under the feeshifting statutes at issue. We reverse the Court of Appeals' judgment insofar as it affirmed the 25% enhancement of the lodestar.It is so ordered

OCTOBER TERM, 1991SyllabusCITY OF BURLINGTON v. DAGUE ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITNo. 91-810. Argued April 21, 1992-Decided June 24, 1992After ruling on the merits for respondents, the District Court determined that they were "substantially prevailing" parties entitled to "reasonable" attorney's fees under the attorney's fee provisions of the Solid Waste Disposal Act and the Clean Water Act. The District Court calculated the fee award by, inter alia, enhancing the "lodestar" amount by 25% on the grounds that respondents' attorneys were retained on a contingent-fee basis and that without such enhancement respondents would have faced substantial difficulties in obtaining suitable counsel. The Court of Appeals affirmed the fee award.Held: The fee-shifting statutes at issue do not permit enhancement of a fee award beyond the lodestar amount to reflect the fact that a party's attorneys were retained on a contingent-fee basis. In Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 483 U. S. 711 (Delaware Valley II), this Court addressed, but did not resolve, a question essentially identical to the one presented here. The position taken by the principal opinion in that case, id., at 723-727 (opinion of WHITE, J.)that the typical federal fee-shifting statute does not permit an attorney's fee award to be enhanced on account of contingency-is adopted. The position advocated by Delaware Valley II's concurrence, id., at 731, 733 (O'CONNOR, J., concurring in part and concurring in judgment)that contingency enhancement is appropriate in defined limited circumstances-is rejected, since it is based upon propositions that are mutually inconsistent as a practical matter; would make enhancement turn upon a circular test for a very large proportion of contingency-fee cases; and could not possibly achieve its supposed goal of mirroring market incentives to attorneys to take cases. Beyond that approach, there is no other basis, fairly derivable from the fee-shifting statutes, by which contingency enhancement, if adopted, could be restricted to fewer than all contingent-fee cases. Moreover, contingency enhancement is not compatible with the fee-shifting statutes at issue, since such enhancement would in effect pay for the attorney's time (or anticipated time) in cases where his client does not prevail; is unnecessary to the determination of a reasonable fee and inconsistent with this Court's general rejection of the contingent-fee model in favor of the lodestar model, see, e. g., Blanchard v. Bergeron, 489 U. S. 87, 96; and would make the setting of558Syllabusfees more complex and arbitrary, hence more unpredictable, and hence more litigable. Pp. 560-567.935 F.2d 1343, reversed in part.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, KENNEDY, SOUTER, and THOMAS, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 567. O'CONNOR, J., filed a dissenting opinion, post, p. 575.Michael B. Clapp argued the cause and filed briefs for petitioner.Barry L. Goldstein argued the cause for respondents.With him on the brief were William W Pearson, Guy T. Saperstein, and Mari Mayeda.Richard H. Seamon argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Mahoney, Deputy Assistant Attorney General Clegg, Harriet S. Shapiro, Anne S. Almy, and Mark R. Haag. **Briefs of amici curiae urging reversal were filed for the District of Columbia et al. by John Payton, Corporation Counsel for the District of Columbia, Charles L. Reischel, Deputy Corporation Counsel, and Donna M. Murasky, Assistant Corporation Counsel, and by the Attorneys General for their respective States as follows: James H. Evans of Alabama, Daniel E. Lungren of California, Robert A. Butterworth of Florida, Roland W Burris of Illinois, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, Scott Harshbarger of Massachusetts, Frankie Sue Del Papa of Nevada, Susan B. Loving of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, Mark W Barnett of South Dakota, Paul Van Dam of Utah, and James E. Doyle of Wisconsin; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.Briefs of amici curiae urging affirmance were filed for the Alabama Employment Lawyers Association et al. by Sanford Jay Rosen, Andrea G. Asaro, Steven R. Shapiro, John A. Powell, Leon Friedman, Julius L. Chambers, Charles Stephen Ralston, and Terisa E. Chaw; for the American Bar Association by Talbot S. D'Alemberte and Carter G. Phillips; and for the Lawyer's Committee for Civil Rights Under Law et al. by Roger E. Warin, Jerald S. Howe, Jr., D. Benson Tesdahl, Herbert M. Wachtell, William H. Brown III, Thomas J. Henderson, and Richard T. Seymour.559Full Text of Opinion

1980_80-207

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to consider whether the Federal Communications Commission properly construed 47 U.S.C. § 312(a)(7) and determined that petitioners failed to provide "reasonable access to . . . the use of a broadcasting station" as required by the statute. 449 U.S. 950 (1980).IAOn October 11, 1979, Gerald M. Rafshoon, President of the Carter-Mondale Presidential Committee, requested each of the three major television networks to provide time for a 30-minute program between 8 p.m. and 10:30 p.m. on either the 4th, 5th, 6th, or 7th of December, 1979. [Footnote 1] The Committee Page 453 U. S. 372 intended to present, in conjunction with President Carter's formal announcement of his candidacy, a documentary outlining the record of his administration.The networks declined to make the requested time available. Petitioner CBS emphasized the large number of candidates for the Republican and Democratic Presidential nominations and the potential disruption of regular programming to accommodate requests for equal treatment, but it offered to sell two 5-minute segments to the Committee, one at 10:55 p.m. on December 8 and one in the daytime. [Footnote 2] Petitioner Page 453 U. S. 373 American Broadcasting Cos. replied that it had not yet decided when it would begin selling political time for the 1980 Presidential campaign, [Footnote 3] but subsequently indicated that it would allow such sales in January, 1980. App. 58. Petitioner National Broadcasting Co., noting the number of potential requests for time from Presidential candidates, stated that it was not prepared to sell time for political programs as early as December, 1979. [Footnote 4]On October 29, 1979, the Carter-Mondale Presidential Committee filed a complaint with the Federal Communications Commission, charging that the networks had violated Page 453 U. S. 374 their obligation to provide "reasonable access" under § 312(a)(7) of the Communications Act of 1934, as amended. Title 47 U.S.C. § 312(a)(7), as added to the Act, 86 Stat. 4, states:"The Commission may revoke any station license or construction permit -- ""* * * *" "(7) for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy."At an open meeting on November 20, 1979, the Commission, by a 4-to-3 vote, ruled that the networks had violated § 312(a)(7). In its memorandum opinion and order, the Commission concluded that the networks' reasons for refusing to sell the time requested were "deficient" under its standards of reasonableness, and directed the networks to indicate by November 26, 1979, how they intended to fulfill their statutory obligations. 74 F.C.C.2d 631.Petitioners sought reconsideration of the FCC's decision. The reconsideration petitions were denied by the same 4-to-3 vote, and, on November 28, 1979, the Commission issued a second memorandum opinion and order clarifying its previous decision. It rejected petitioners' arguments that § 312(a)(7) was not intended to create a new right of access to the broadcast media and that the Commission had improperly substituted its judgment for that of the networks in evaluating the Carter-Mondale Presidential Committee's request for time. November 29, 1979, was set as the date for the networks to file their plans for compliance with the statute. 74 F.C.C.2d 657.The networks, pursuant to 47 U.S.C. § 402, then petitioned for review of the Commission's orders in the United States Court of Appeals for the District of Columbia Circuit. The Page 453 U. S. 375 court allowed the Committee and the National Association of Broadcasters to intervene, and granted a stay of the Commission's orders pending review.Following the seizure of American Embassy personnel in Iran, the Carter-Mondale Presidential Committee decided to postpone to early January, 1980, the 30-minute program it had planned to broadcast during the period of December 4-7, 1979. However, believing that some time was needed in conjunction with the President's announcement of his candidacy, the Committee sought and subsequently obtained from CBS the purchase of five minutes of time on December 4. In addition, the Committee sought and obtained from ABC and NBC offers of time for a 30-minute program in January, and the ABC offer eventually was accepted. Throughout these negotiations, the Committee and the networks reserved all rights relating to the appeal.BThe Court of Appeals affirmed the Commission's orders, 202 U.S.App.D.C. 369, 629 F.2d 1 (1980), holding that the statute created a new, affirmative right of access to the broadcast media for individual candidates for federal elective office. As to the implementation of § 312(a)(7), the court concluded that the Commission has the authority to independently evaluate whether a campaign has begun for purposes of the statute, and approved the Commission's insistence that "broadcasters consider and address all non-frivolous matters in responding to a candidate's request for time." Id. at 386, 629 F.2d at 18. For example, a broadcaster must weigh such factors as:"(a) the individual needs of the candidate (as expressed by the candidate); (b) the amount of time previously provided to the candidate; (c) potential disruption of regular programming; (d) the number of other candidates likely to invoke equal opportunity rights if the broadcaster grants the request before him; and (e) the timing of the request."Id. at 387, 629 F.2d at 19. And in reviewing a broadcaster's decision, the Commission will confine Page 453 U. S. 376 itself to two questions:"(1) has the broadcaster adverted to the proper standards in deciding whether to grant a request for access, and (2) is the broadcaster's explanation for his decision reasonable in terms of those standards?"Id. at 386, 629 F.2d at 18.Applying these principles, the Court of Appeals sustained the Commission's determination that the Presidential campaign had begun by November, 1979, and, accordingly, the obligations imposed by § 312(a)(7) had attached. Further, the court decided that "the record . . . adequately supports the Commission's conclusion that the networks failed to apply the proper standards." Id. at 389, 629 F.2d at 21. In particular, the "across-the-board" policies of all three networks failed to address the specific needs asserted by the Carter-Mondale Presidential Committee. Id. at 390, 629 F.2d at 22. From this, the court concluded that the Commission was correct in holding that the networks had violated the statute's "reasonable access" requirement.Finally, the Court of Appeals rejected petitioners' First Amendment challenge to § 312(a)(7) as applied, reasoning that the statute, as construed by the Commission,"is a constitutionally acceptable accommodation between, on the one hand, the public's right to be informed about elections and the right of candidates to speak and, on the other hand, the editorial rights of broadcasters."Id. at 389, 629 F.2d at 25. In a concurring opinion adopted by the majority, id. at 389, n. 117, 629 F.2d at 25, n. 117, Judge Tamm expressed the view that § 312(a)(7) is saved from constitutional infirmity "as long as the [Commission] . . . maintains a very limited overseer' role consistent with its obligation of careful neutrality. . . ." Id. at 402, 629 F.2d at 34.IIWe consider first the scope of § 312(a)(7). Petitioners CBS and NBC contend that the statute did not impose any Page 453 U. S. 377 additional obligations on broadcasters, but merely codified prior policies developed by the Federal Communications Commission under the public interest standard. The Commission, however, argues that 312(a)(7) created an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations for individual candidates seeking federal elective office.AThe Federal Election Campaign Act of 1971, which Congress enacted in 1972, included as one of its four Titles the Campaign Communications Reform Act (Title I). Title I contained the provision that was codified as 47 U.S.C. § 312(a)(7). [Footnote 5]We have often observed that the starting point in every case involving statutory construction is "the language employed by Congress." Reiter v. Sonotone Corp., 442 U. S. 330, 442 U. S. 337 (1979). In unambiguous language, § 312(a)(7) authorizes the Commission to revoke a broadcaster's license"for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy."It is clear on the face of the statute that Congress did not prescribe merely a general duty to afford some measure of political programming, which the public interest obligation Page 453 U. S. 378 of broadcasters already provided for. Rather, § 312(a)(7) focuses on the individual "legally qualified candidate" seeking air time to advocate "his candidacy," and guarantees him "reasonable access" enforceable by specific governmental sanction. Further, the sanction may be imposed for "willful or repeated" failure to afford reasonable access. This suggests that, if a legally qualified candidate for federal office is denied a reasonable amount of broadcast time, license revocation may follow even a single instance of such denial, so long as it is willful; where the denial is recurring, the penalty may be imposed in the absence of a showing of willfulness.The command of § 312(a)(7) differs from the limited duty of broadcasters under the public interest standard. The practice preceding the adoption of § 312(a)(7) has been described by the Commission as follows:"Prior to the enactment of the [statute], we recognized political broadcasting as one of the fourteen basic elements necessary to meet the public interest, needs and desires of the community. No legally qualified candidate had, at that time, a specific right of access to a broadcasting station. However, stations were required to make reasonable, good faith judgments about the importance and interest of particular races. Based upon those judgments, licensees were to 'determine how much time should be made available for candidates in each race on either a paid or unpaid basis.' There was no requirement that such time be made available for specific 'uses' of a broadcasting station to which Section 315 'equal opportunities' would be applicable."(Footnotes omitted.) Report and Order: Commission Policy in Enforcing Section 12(a)(7) of the Communications Act, 68 F.C.C.2d 1079, 1087-1088 (1978) (1978 Report and Order). Under the pre-1971 public interest requirement, compliance with which was necessary to assure license renewal, some time Page 453 U. S. 379 had to be given to political issues, but an individual candidate could claim no personal right of access unless his opponent used the station, and no distinction was drawn between federal, state, and local elections. [Footnote 6] See Farmers Educational & Cooperative Union v. WDAY, Inc., 360 U. S. 525 534 (1959). By its terms, however, § 312(a)(7) singles out legally qualified candidates for federal elective office and grants them a special right of access on an individual basis, violation of which carries the serious consequence of license revocation. The conclusion is inescapable that the statute did more than simply codify the preexisting public interest standard.BThe legislative history confirms that § 312(a)(7) created a right of access that enlarged the political broadcasting responsibilities of licensees. When the subject of campaign reform was taken up by Congress in 1971, three bills were introduced in the Senate -- S. 1, S. 382, and S. 956. All three measures, while differing in approach, were "intended to increase a candidate's accessibility to the media and to reduce the level of spending for its use." Federal Election Campaign Act of 1971: Hearings on S. 1, S. 382, and S. 956 before the Subcommittee on Communications of the Senate Committee on Commerce. 92d Cong., 1st Sess., 2 (1971) (remarks of Sen. Pastore). The subsequent Report of the Senate Commerce Committee stated that one of the primary purposes of the Federal Election Campaign Act of 1971 was to"give candidates for public office greater access to the media so that they may better explain their stand on the issues, and thereby more fully and completely inform the voters."S.Rep. No. 92-96, p. 20 (1971) (emphasis added). The Report contained Page 453 U. S. 380 neither an explicit interpretation of the provision that became § 312(a)(7) nor a discussion of its intended impact, but simply noted:"[The amendment] provide[s] that willful or repeated failure by a broadcast licensee to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of his station's facilities by a lagally [sic] qualified candidate for Federal elective office on behalf of his candidacy shall be grounds for adverse action by the FCC.""The duty of broadcast licensees generally to permit the use of their facilities by legally qualified candidates for these public offices is inherent in the requirement that licensees serve the needs and interests of the [communities] of license. The Federal Communications Commission has recognized this obligation. . . ."Id. at 34. While acknowledging the "general" public interest requirement, the Report treated it separately from the specific obligation prescribed by the proposed legislation. See also id. at 28.As initially reported in the Senate, § 312(a)(7) applied broadly to "the use of a broadcasting station by any person who is a legally qualified candidate on behalf of his candidacy." Id. at 3. The Conference Committee confined the provision to candidates seeking federal elective office. S.Conf.Rep. No. 92-580, p. 22 (1971); H.Conf.Rep. No. 92-752, p. 22 (1971). During floor debate on the Conference Report in the House, attention was called to the substantial impact § 312(a)(7) would have on the broadcasting industry:"[B]roadcasters [are required] to permit any legally qualified candidate [for federal office] to purchase a 'reasonable amount of time' for his campaign advertising. Any broadcaster found in willful or repeated violation of this requirement could lose his license and be Page 453 U. S. 381 thrown out of business, his total record of public service notwithstanding.""* * * *" "[U]nder this provision, a broadcaster, whose license is obtained and retained on basis of performance in the public interest, may be charged with being unreasonable, and therefore fall subject to revocation of his license."118 Cong.Rec. 326 (1972) (remarks of Rep. Keith). Such emphasis on the thrust of the statute would seem unnecessary if it did nothing more than reiterate the public interest standard.Perhaps the most telling evidence of congressional intent, however, is the contemporaneous amendment of § 315(a) of the Communications Act. [Footnote 7] That amendment was described by the Conference Committee as a "conforming amendment" necessitated by the enactment of § 312(a)(7). S.Conf.Rep. No. 92-580, supra, at 22; H.Conf.Rep. No. 92-752, supra, at 22. Prior to the "conforming amendment," the second sentence of 47 U.S.C. § 315(a) (1970 ed.) read: "No obligation is imposed upon any licensee to allow the use of its station by any such candidate." This language made clear that broadcasters were not common carriers as to affirmative, rather than responsive, requests for access. As a result of the amendment, the second sentence now contains an important qualification: "No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate." 47 U.S.C. § 315(a) (emphasis added). Congress retreated from its statement that "no obligation" exists to afford individual access presumably because § 312(a)(7) compels such access in the context of federal elections. If § 312(a)(7) simply reaffirmed the preexisting public interest Page 453 U. S. 382 requirement with the added sanction of license revocation, no conforming amendment to § 315(a) would have been needed.Thus, the legislative history supports the plain meaning of the statute that individual candidates for federal elective office have a right of reasonable access to the use of stations for paid political broadcasts on behalf of their candidacies, [Footnote 8] without reference to whether an opponent has secured time.CWe have held that"the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction."Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 381 (1969) (footnotes omitted). Accord, Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 121 (1973). Such deference"is particularly appropriate where, as here, an agency's interpretation involves issues of considerable public controversy, and Congress has not acted to correct any misperception of its statutory objectives."United States v. Rutherford, 442 U. S. 544, 442 U. S. 554 (1979).Since the enactment of § 312(a)(7), the Commission has consistently construed the statute as extending beyond the prior public interest policy. In 1972, the Commission made clear that § 312(a)(7)"now imposes on the overall obligation to operate in the public interest the additional specific requirement that reasonable access and purchase of reasonable amounts of time be afforded candidates for Federal office."Use of Broadcast and Cablecast Facilities by Candidates for Public Office, 34 F.C.C.2d 510, 537-538 (1972) Page 453 U. S. 383 (1972 Policy Statement) (emphasis added). Accord, Public Notice Concerning Licensee Responsibility Under Amendments to the Communications Act Made by the Federal Election Campaign Act of 1971, 47 F.C.C.2d 516 (1974). In its 1978 Report and Order, the Commission stated:"When Congress enacted Section 312(a)(7), it imposed an additional obligation on the general mandate to operate in the public interest. Licensees were specifically required to afford reasonable access to or to permit the purchase of reasonable amounts of broadcast time for the 'use' of Federal candidates.""We see no merit to the contention that Section 312(a)(7) was meant merely as a codification of the Commission's already existing policy concerning political broadcasts. There was no reason to commit that policy to statute, since it was already being enforced by the Commission. . . ."68 F.C.C.2d at 1088. See also 1978 Primer, 69 F.C.C.2d at 2286-2289. The Commission has adhered to this view of the statute in its rulings on individual inquiries and complaints. See, e.g., The Labor Party, 67 F.C.C.2d 589, 590 (1978); Ken Bauder, 62 F.C.C.2d 849 (Broadcast Bureau 1976); Don C. Smith, 49 F.C.C.2d 678, 679 (Broadcast Bureau 1974); Summa Corp., 43 F.C.C.2d 602, 603-605 (1973); Robert H. Hauslein, 39 F.C.C.2d 1064, 1065 (Broadcast Bureau 1973).Congress has been made aware of the Commission's interpretation of § 312(a)(7). In 1973, hearings were conducted to review the operation of the Federal Election Campaign Act of 1971. Federal Election Campaign Act of 1973: Hearings on S. 372 before the Subcommittee on Communications of the Senate Committee on Commerce, 93d Cong., 1st Sess. (1973). Commission Chairman Dean Burch testified regarding the agency's experience with § 312(a)(7). Id. at 136-137. He noted that the Commission's 1972 Policy Statement was "widely distributed, and represented our best judgment as to Page 453 U. S. 384 the requirements of the law and the intent of Congress." Id. at 135. Chairman Burch discussed some of the difficult questions implicit in determining whether a station has afforded "reasonable access" to a candidate for federal office, and in conclusion stated:"We have brought our approach to these problems. in the form of the 1972 Public Notice. to the attention of Congress. If we have erred in some important construction, we would, of course, welcome congressional guidance."Id. at 137. Senator Pastore, Chairman of the Communications Subcommittee, replied:"We didn't draw the provision any differently than we did because, when you begin to legislate on guidelines, and on standards, and on criteria, you know what you run up against. I think what we did was reasonable enough, and I think what you did was reasonable enough, as well.""* * * *" "I would suppose that, in cases of that kind, you would get some complaints. But, frankly, I think it has worked out pretty well."Id. at 137-138. The issue was joined when CBS Vice Chairman Frank Stanton also testified at the hearings and objected to the fact that § 312(a)(7) "grants rights to all legally qualified candidates for Federal office. . . ." Id. at 190. He strongly urged "repeal" of the statute, but his plea was unsuccessful. Ibid. [Footnote 9]The Commission's repeated construction of § 312(a)(7) as affording an affirmative right of reasonable access to individual Page 453 U. S. 385 candidates for federal elective office comports with the statute's language and legislative history, and has received congressional review. Therefore, departure from that construction is unwarranted."Congress' failure to repeal or revise [the statute] in the face of such administrative interpretation [is] persuasive evidence that that interpretation is the one intended by Congress."Zemel v. Rusk, 381 U. S. 1, 381 U. S. 11 (1965).DIn support of their narrow reading of § 312(a)(7) as simply a restatement of the public interest obligation, petitioners cite our decision in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 (1973), which held that neither the First Amendment nor the Communications Act requires broadcasters to accept paid editorial advertisements from citizens at large. The Court in Democratic National Committee observed that "the Commission on several occasions has ruled that no private individual or group has a right to command the use of broadcast facilities," and that Congress has not altered that policy even though it has amended the Communications Act several times. Id. at 412 U. S. 113. In a footnote, on which petitioners here rely, we referred to the then recently enacted § 312(a)(7) as one such amendment, stating that it had"essentially codified the Commission's prior interpretation of § 315(a) as requiring broadcasters to make time available to political candidates."Id. at 412 U. S. 113-114, n. 12.However, "the language of an opinion is not always to be parsed as though we were dealing with language of a statute." Reiter v. Sonotone Corp., 442 U.S. at 442 U. S. 341. The qualified observation that § 312(a)(7) "essentially codified" existing Commission practice was not a conclusion that the statute was in all respects coextensive with that practice, and imposed no additional duties on broadcasters. In Democratic National Committee, we did not purport to rule on the precise contours Page 453 U. S. 386 of the responsibilities created by § 312(a)(7), since that issue was not before us. Like the general public interest standard and the equal opportunities provision of § 315(a), § 312(a)(7) reflects the importance attached to the use of the public airwaves by political candidates. Yet we now hold that § 312(a)(7) expanded on those predecessor requirements and granted a new right of access to persons seeking election to federal office. [Footnote 10]IIIAAlthough Congress provided in § 312(a)(7) for greater use of broadcasting stations by federal candidates, it did not give guidance on how the Commission should implement the statute's access requirement. Essentially, Congress adopted a "rule of reason," and charged the Commission with its enforcement. Pursuant to 47 U.S.C. § 303(r), which empowers the Commission to"[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of [the Communications Act] ,"the agency has developed standards to effectuate the guarantees of § 312(a)(7). See also 47 U.S.C. § 154(i). The Commission has issued some general interpretative statements, but its standards implementing § 312(a)(7) have evolved principally on a case-by-case basis, and are not embodied in formalized rules. The relevant criteria broadcasters must employ in evaluating access requests under the statute can be summarized from the Commission's 1978 Report and Order and the memorandum opinions and orders in these cases.Broadcasters are free to deny the sale of air time prior to Page 453 U. S. 387 the commencement of a campaign, but once a campaign has begun, they must give reasonable and good faith attention to access requests from "legally qualified" candidates [Footnote 11] for federal elective office. Such requests must be considered on an individualized basis, and broadcasters are required to tailor their responses to accommodate, as much as reasonably possible, a candidate's stated purposes in seeking air time. In responding to access requests, however, broadcasters may also give weight to such factors as the amount of time previously sold to the candidate, the disruptive impact on regular programming, and the likelihood of requests for time by rival candidates under the equal opportunities provision of § 315(a). These considerations may not be invoked as pretexts for denying access; to justify a negative response, broadcasters must cite a realistic danger of substantial program disruption -- perhaps caused by insufficient notice to allow adjustments in the schedule -- or of an excessive number of equal time requests. Further, in order to facilitate review by the Commission, broadcasters must explain their reasons for refusing time or making a more limited counter-offer. If broadcasters take the appropriate factors into account and act reasonably and in good faith, their decisions will be entitled to deference even if the Commission's analysis would have differed in the first instance. But if broadcasters adopt "across-the-board policies" and do not attempt to respond to Page 453 U. S. 388 the individualized situation of a particular candidate, the Commission is not compelled to sustain their denial of access. See 74 F.C.C.2d at 665-674; 74 F.C.C.2d at 642-651; 1078 Report and Order, 68 F.C.C.2d at 1089-1092, 1094. Petitioners argue that certain of these standards are contrary to the statutory objectives of § 312(a)(7).(1)The Commission has concluded that, as a threshold matter, it will independently determine whether a campaign has begun and the obligations imposed by § 312(a)(7) have attached. 74 F.C.C.2d at 665-666. Petitioners assert that, in undertaking such a task, the Commission becomes improperly involved in the electoral process and seriously impairs broadcaster discretion.However, petitioners fail to recognize that the Commission does not set the starting date for a campaign. Rather, on review of a complaint alleging denial of "reasonable access," it examines objective evidence to find whether the campaign has already commenced, "taking into account the position of the candidate and the networks, as well as other factors." Id. at 665 (emphasis added). As the Court of Appeals noted, the"determination of when the statutory obligations attach does not control the electoral process . . . the determination is controlled by the process."202 U.S.App.D.C. at 384, 629 F.2d at 16. Such a decision is not, and cannot be, purely one of editorial judgment.Moreover, the Commission's approach serves to narrow § 312(a)(7), which might be read as vesting access rights in an individual candidate as soon as he becomes "legally qualified" without regard to the status of the campaign. See n 11, supra. By confining the applicability of the statute to the period after a campaign commences, the Commission has limited its impact on broadcasters and given substance to its command of reasonable access. Page 453 U. S. 389(2)Petitioners also challenge the Commission's requirement that broadcasters evaluate and respond to access requests on an individualized basis. In petitioners' view, the agency has attached inordinate significance to candidates' needs, thereby precluding fair assessment of broadcasters' concerns and prohibiting the adoption of uniform policies regarding requests for access.While admonishing broadcasters not to "second-guess' the `political' wisdom or . . . effectiveness" of the particular format sought by a candidate, the Commission has clearly acknowledged that"the candidate's . . . request is by no means conclusive of the question of how much time, if any, is appropriate. Other . . . factors, such as the disruption or displacement of regular programming (particularly as affected by a reasonable probability of requests by other candidates) must be considered in the balance."74 F.C.C.2d at 667-668. Thus, the Commission mandates careful consideration of, not blind assent to, candidates' desires for air time.Petitioners are correct that the Commission's standards proscribe blanket rules concerning access; each request must be examined on its own merits. While the adoption of uniform policies might well prove more convenient for broadcasters, such an approach would allow personal campaign strategies and the exigencies of the political process to be ignored. A broadcaster's "evenhanded" response of granting only time spots of a fixed duration to candidates may be "unreasonable" where a particular candidate desires less time for an advertisement or a longer format to discuss substantive issues. In essence, petitioners seek the unilateral right to determine in advance how much time to afford all candidates. Yet § 312(a)(7) assures a right of reasonable access to individual candidates for federal elective office, and the Commission's requirement that their requests be considered on an individualized basis is consistent with that guarantee. Page 453 U. S. 390(3)The Federal Communications Commission is the experienced administrative agency long entrusted by Congress with the regulation of broadcasting, and the Commission is responsible for implementing and enforcing § 312(a)(7) of the Communications Act. Accordingly, its construction of the statute is entitled to judicial deference "unless there are compelling indications that it is wrong." Red Lion Broadcasting Co. v. FCC, 395 U.S. at 395 U. S. 381. As we held in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. at 412 U. S. 120, the Commission must be allowed to"remain in a posture of flexibility to chart a workable 'middle course' in its quest to preserve a balance between the essential public accountability and the desired private control of the media."Like the Court of Appeals, we cannot say that the Commission's standards are arbitrary and capricious, or at odds with the language and purposes of § 312(a)(7). See 5 U.S.C. § 706(2)(A). Indeed, we are satisfied that the Commission's action represents a reasoned attempt to effectuate the statute's access requirement, giving broadcasters room to exercise their discretion but demanding that they act in good faith. [Footnote 12]BThere can be no doubt that the Commission's standards have achieved greater clarity as a result of the orders in these cases. [Footnote 13] However laudable that may be, it raises the question Page 453 U. S. 391 whether § 312(a)(7) was properly applied to petitioners. [Footnote 14] Based upon the Commission's prior decisions and 1978 Report and Order, however, we must conclude that petitioners had adequate notice that their conduct in responding to the Carter-Mondale Presidential Committee's request for access would contravene the statute.In the 1978 Report and Order, the Commission stated that it could not establish a precise point at which § 312(a)(7) obligations would attach for all campaigns, because each is unique:"For instance, a presidential campaign may be in full swing almost a year before an election; other campaigns may be limited to a short concentrated period. . . . [W]e believe that, generally, a licensee would be unreasonable if it refused to afford access to Federal candidates at least during those time periods [when the 'lowest unit charge' provision of § 315 applied]. Moreover, it may be required to afford reasonable access before these periods; however, the determination of whether 'reasonable access' must be afforded before these periods for particular races must be made in each case under all the facts and circumstances present. . . . [W]e expect licensees to afford access at a reasonable time prior to a convention or caucus. We will review a licensee's decisions in Page 453 U. S. 392 this area on a case-by-case basis."68 F.C.C.2d at 1091-1092 (emphasis added). In Anthony R. Martin-Trigona, 67 F.C.C.2d 743 (1978), the Commission observed:"[T]he licensee, and ultimately the Commission, must look to the circumstances of each particular case to determine when it is reasonable for a candidate's access to begin. . . ."Id. at 746, n. 4 (emphasis added). Further, the 1978 Report and Order made clear that"Federal candidates are the intended beneficiary of Section 312(a)(7), and therefore a candidate's desires as to the method of conducting his or her media campaign should be considered by licensees in granting reasonable access."68 F.C.C.2d at 1089, n. 14. The agency also stated:"[A]n arbitrary 'blanket' ban on the use by a candidate of a particular class or length of time in a particular period cannot be considered reasonable. A Federal candidate's decisions as to the best method of pursuing his or her media campaign should be honored as much as possible under the 'reasonable' limits imposed by the licensee."Id. at 1090.Here, the Carter-Mondale Presidential Committee sought broadcast time approximately 11 months before the 1980 Presidential election and 8 months before the Democratic National Convention. In determining that a national campaign was underway at that point, the Commission stressed: (a) that 10 candidates formally had announced their intention to seek the Republican nomination, and 2 candidates had done so for the Democratic nomination; (b) that various states had started the delegate selection process; (c) that candidates were traveling across the country making speeches and attempting to raise funds; (d) that national campaign organizations were established and operating; (e) that the Iowa caucus would be held the following month; (f) that public officials and private groups were making endorsements; and (g) that the national print media had given campaign � 3 and S. 393� activities prominent coverage for almost two months. 74 F.C.C.2d at 645-647. The Commission's conclusion about the status of the campaign accorded with its announced position on the vesting of § 312(a)(7) rights, and was adequately supported by the objective factors on which it relied. Nevertheless, petitioners ABC and NBC refused to sell the Carter-Mondale Presidential Committee any time in December, 1979 on the ground that it was "too early in the political season." App. 41-43, 52-74; nn. 3 and | 3 and S. 367fn4|>4, supra. These petitioners made no counter-offers, but adopted "blanket" policies refusing access despite the admonition against such an approach in the 1978 Report and Order. Cf. Donald W. Riegle, 59 F.C.C.2d 1314 (1976); WALB-TV, Inc., 59 F.C.C.2d 146 (1976). Likewise, petitioner CBS, while not barring access completely, had an across-the-board policy of selling only 5-minute spots to all candidates, notwithstanding the Commission's directive in the 1978 Report and Order that broadcasters consider "a candidate's desires as to the method of conducting his or her media campaign." 68 F.C.C.2d at 1089, n. 14. See App. 4-5, 75-93; 3 and S. 367fn2|>n. 2, supra. Petitioner CBS responded with its standard offer of separate 5-minute segments, even though the Carter-Mondale Presidential Committee sought 30 minutes of air time to present a comprehensive statement launching President Carter's re-election campaign. Moreover, the Committee's request was made almost two months before the intended date of broadcast, was flexible, in that it could be satisfied with any prime time slot during a 4-day period, was accompanied by an offer to pay the normal commercial rate, and was not preceded by other requests from President Carter for access. See App. 27-40; 3 and S. 367fn1|>n. 1, supra. Although petitioners adverted to the disruption of regular programming and the potential equal time requests from rival candidates in their responses to the Carter-Mondale Presidential Committee's complaint, the Commission rejected these claims as "speculative and unsubstantiated, at best." 74 F.C.C.2d at 674. � 3 and S. 394�Under these circumstances, we cannot conclude that the Commission abused its discretion in finding hat petitioners failed to grant the "reasonable access" required by § 312(a)(7). [Footnote 15] See 5 U.S.C. § 706(2)(A)."[T]he fact that we might not have made the same determination on the same facts does not warrant a substitution of judicial for administrative discretion, since Congress has confided the problem to the latter."FCC v. WOKO, Inc., 329 U. S. 223, 329 U. S. 229 (1946). "[C]ourts should not overrule an administrative decision merely because they disagree with its wisdom." Radio Corp. of America v. United States, 341 U. S. 412, 341 U. S. 420 (1951).IVFinally, petitioners assert that § 312(a)(7), as implemented by the Commission, violates the First Amendment rights of broadcasters by unduly circumscribing their editorial discretion. In Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. at 412 U. S. 117, we stated:"Th[e] role of the Government as an 'overseer' and ultimate arbiter and guardian of the public interest, and the role of the licensee as a journalistic 'free agent,' call for a delicate balancing of competing interests. The maintenance of this balance for more than 40 years has called on both the regulators and the licensees to walk a 'tightrope' to preserve the First Amendment values written Page 453 U. S. 395 into the Radio Act and its successor, the Communications Act."Petitioners argue that the Commission's interpretation of § 312(a)(7)'s access requirement disrupts the "delicate balanc[e]" that broadcast regulation must achieve. We disagreeA licensed broadcaster is"granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise, it is burdened by enforceable public obligations."Office of Communication of the United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 337, 359 F.2d 994, 1003 (1966). This Court has noted the limits on a broadcast license:"A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a . . . frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others. . . ."Red Lion Broadcasting Co. v. FCC, 395 U.S. at 389. See also FCC v. National Citizens Comm. for Broadcasting, 436 U. S. 775, 436 U. S. 799-800 (1978). Although the broadcasting industry is entitled under the First Amendment to exercise "the widest journalistic freedom consistent with its public [duties]," Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, at 412 U. S. 110, the Court has made clear that:"It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market. . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here."Red Page 453 U. S. 396 Lion Broadcasting Co. v. FCC, supra, at 395 U. S. 390 (citations omitted) (emphasis added).The First Amendment interests of candidates and voters, as well as broadcasters, are implicated by § 312(a)(7). We have recognized that"it is of particular importance that candidates have the . . . opportunity to make their views known, so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day."Buckley v. Valeo, 424 U. S. 1, 424 U. S. 52-53 (1976). Indeed, "speech concerning public affairs is . . . the essence of self-government." Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 74-75 (1964). The First Amendment "has its fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, 401 U. S. 265, 401 U. S. 272 (1971). Section 312(a)(7) thus makes a significant contribution to freedom of expression by enhancing the ability of candidates to present, and the public to receive, information necessary for the effective operation of the democratic process.Petitioners are correct that the Court has never approved a general right of access to the media. See, e.g., FCC v. Midwest Video Corp., 440 U. S. 689 (179); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); Columbia Broadcasting System, Inc. v. Democratic National Committee, supra. Nor do we do so today. Section 312(a)(7) creates a limited right to "reasonable" access that pertains only to legally qualified federal candidates, and may be invoked by them only for the purpose of advancing their candidacies once a campaign has commenced. The Commission has stated that, in enforcing the statute, it will "provide leeway to broadcasters, and not merely attempt de novo to determine the reasonableness of their judgments. . . ." 74 F.C.C.2d at 672. If broadcasters have considered the relevant factors in good faith, the Commission will uphold their decisions. See 202 U.S.App.D.C. at 393, 629 F.2d at 25. Further, § 312(a)(7) Page 453 U. S. 397 does not impair the discretion of broadcasters to present their views on any issue, or to carry any particular type of programming.Section 312(a)(7) represents an effort by Congress to assure that an important resource -- the airwaves -- will be used in the public interest. We hold that the statutory right of access, as defined by the Commission and applied in these cases, properly balances the First Amendment rights of federal candidates, the public, and broadcasters.The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtCBS, Inc. v. FCC, 453 U.S. 367 (1981)CBS, Inc. v. Federal Communications CommissionNo. 80-207Argued March 3, 1981Decided July 1, 1981*453 U.S. 367SyllabusSection 312 (a) (7) of the Communications Act of 1934, as added by Title I of the Federal Election Campaign Act of 1971, authorizes the Federal Communications Commission (FCC) to revoke any broadcasting station license"for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy."On October 11, 1979, the Carter-Mondale Presidential Committee(Committee) requested each of the three major television networks (petitioners) to provide time for a 30-minute program between 8 p. m. and 10:30 p.m. on any day from the 4th through the 7th of December, 1979. The Committee intended to present, in conjunction with President Carter's formal announcement of his candidacy, a documentary outlining the record of his administration. The petitioners refused to make the requested time available. CBS emphasized the large number of candidates for the Presidential nominations and the potential disruption of regular programming to accommodate requests for equal treatment, but offered to sell a 5-minute segment at 10:55 p.m. on December 8 and a 5-minute segment in the daytime; American Broadcasting Cos. replied that it had not yet decided when it would begin selling political time for the 1980 Presidential campaign, but later indicated that it would allow such sales in January, 1980; and National Broadcasting Co., noting the number of potential requests for time from Presidential candidates, stated that it was not prepared to sell time for political programs as early as December, 1979. The Committee then filed a complaint with the FCC, charging that the networks had violated their obligation to provide "reasonable access" under § 312(a)(7). The FCC ruled that the networks had violated the statute, concluding that their reasons for refusing to sell the time requested were "deficient" under the FCC's standards Page 453 U. S. 368 of reasonableness, and directing the networks to indicate by a specified date how they intended to fulfill their statutory obligations. On the networks' petition for review, the Court of Appeals affirmed the FCC's orders, holding that the statute created a new, affirmative right of access to the broadcast media for individual candidates for federal elective office, and that the FCC has the authority to independently evaluate whether a campaign has begun for purposes of the statute. The court approved the FCC's insistence that, in responding to a candidate's request for time, broadcasters must weigh certain factors, including the individual needs of the candidate (as expressed by the candidate); the amount of time previously provided to the candidate; potential disruption of regular programming; the number of other candidates likely to invoke equal opportunity rights if the broadcaster granted the request before it; and the timing of the request. The court determined that the record supported the FCC's conclusion that the networks failed to apply the proper standards, and had thus violated the statute's "reasonable access" requirement. The court also rejected petitioners' First Amendment challenge to § 312(a)(7) as applied.Held:1. Section 312 (a)(7) created an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations for individual candidates seeking federal elective office. It went beyond merely codifying prior FCC policies developed under the public interest standard. Pp. 453 U. S. 376-386.(a) It is clear on the face of the statute that Congress did not prescribe simply a general duty to afford some measure of political programming, which the public interest obligation of broadcasters already provided for. Rather, § 312(a)(7) focuses on the individual "legally qualified candidate" seeking air time to advocate "his candidacy," and guarantees him "reasonable access" enforceable by specific governmental sanction. Further, the sanction may be imposed for either "willful or repeated" failure to afford reasonable access. Pp. 453 U. S. 377-379.(b) The legislative history confirms that § 312(a)(7) created a right of access that enlarged the political broadcasting responsibilities of licensees. Pp. 453 U. S. 379-382.(c) Since the enactment of § 312(a)(7), the FCC has consistently construed the statute as extending beyond the prior public interest policy, and as imposing the additional requirement that reasonable access and purchase of reasonable amounts of time be afforded candidates for federal office. This repeated construction of the statute comports with its language and legislative history, and has received congressional review, so that departure from that construction is unwarranted. Pp. 453 U. S. 382-385. Page 453 U. S. 369(d) The qualified observation in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 412 U. S. 113-114, n. 12, relied on by petitioners, that § 312(a)(7) "essentially codified" existing FCC practice was not a conclusion that the statute was in all respects coextensive with that practice, and imposed no additional duties on broadcasters. That case did not purport to rule on the precise contours of the responsibilities created by § 312(a)(7), since that issue was not before the Court. Pp. 453 U. S. 385-386.2. Contrary to petitioners' contentions, certain of the FCC's standards to effectuate the guarantees of § 312(a)(7) -- which standards evolved principally on a case-by-case basis, and are not embodied in formalized rules -- do not contravene the statutory objectives or unduly intrude on petitioners' editorial discretion, and the statute was properly applied to petitioners in determining that they had failed to grant the "reasonable access" required by the statute. Pp. 453 U. S. 386-394.(a) The FCC's practice of independently determining -- by examining objective evidence and considering the position of both the candidate and the networks, as well as other factors -- whether a campaign has begun and the obligations imposed by the statute have attached does not improperly involve the FCC in the electoral process or significantly impair broadcasters' editorial discretion. Nor is the FCC's standard requiring broadcasters to evaluate access requests on an individualized basis improper on the alleged ground that it attaches inordinate significance to candidates' needs, thereby precluding fair assessment of broadcasters' concerns. The FCC mandates careful consideration of, not blind assent to, candidates' desires for air time. Although the standard does proscribe blanket rules concerning access, such as a broadcaster's rule of granting only time spots of a fixed duration to all candidates, the standard is consistent with § 312(a)(7)'s guarantee of reasonable access for individual candidates for federal elective office. The FCC's standards are not arbitrary and capricious, but represent a reasoned attempt to effectuate the statute's access requirement, giving broadcasters room to exercise their discretion, but demanding that they act in good faith. Pp. 453 U. S. 388-390.(b) On the basis of prior FCC decisions and interpretations, petitioners had adequate notice that their conduct in responding to the Committee's request for access would contravene the statute. The FCC's conclusion about the status of the campaign accorded with its announced position on the vesting of § 312(a)(7) rights, and was adequately supported by the objective factors on which it relied. And under the circumstances here, it cannot be concluded that the FCC abused its discretion in finding that petitioners failed to grant the "reasonable access" required by § 312(a)(7). Pp. 453 U. S. 390-394. Page 453 U. S. 3703. The right of access to the media under § 312(a)(7), as defined by the FCC and applied here, does not violate the First Amendment rights of broadcasters by unduly circumscribing their editorial discretion, but instead properly balances the First Amendment rights of federal candidates, the public, and broadcasters. Although the broadcasting industry is entitled under the First Amendment to exercise "the widest journalistic freedom consistent with its public [duties] ," Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, at 412 U. S. 110, "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 390. Section 312(a)(7), which creates only a limited right of access to the media, makes a significant contribution to freedom of expression by enhancing the ability of candidates to present, and the public to receive, information necessary for the effective operation of the democratic process. Pp. 453 U.S. 394-397.202 U.S.App.D.C. 369, 629 F.2d 1, affirmed.BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, BLACKMUN, and POWELL, JJ., joined. WHITE, J., filed a dissenting opinion, in which REHNQUIST and STEVENS, JJ., joined, post, p. 453 U. S. 397. STEVENS, J., filed a dissenting opinion, post, p. 418. Page 453 U. S. 371

2001_01-408

respondent sued a competitor, Duracraft Corp., claiming that Duracraft's use of a "spiral grill design" in its fans infringed respondent's trade dress. The Court of Appeals for the Tenth Circuit found for Duracraft, holding that Vornado had no protectable trade-dress rights in the grill design. See Vornado Air Circulation Systems, Inc. v. Duracraft Corp., 58 F.3d 1498 (1995) (Vornado I).Nevertheless, on November 26, 1999, respondent lodged a complaint with the United States International Trade Commission against petitioner, The Holmes Group, Inc., claiming that petitioner's sale of fans and heaters with a spiral grill design infringed respondent's patent and the same trade dress held unprotectable in Vornado 1. Several weeks later, petitioner filed this action against respondent in the United States District Court for the District of Kansas, seeking, inter alia, a declaratory judgment that its products did not infringe respondent's trade dress and an injunction restraining respondent from accusing it of trade-dress infringement in promotional materials. Respondent's answer asserted a compulsory counterclaim alleging patent infringement.The District Court granted petitioner the declaratory judgment and injunction it sought. 93 F. Supp. 2d 1140 (Kan. 2000). The court explained that the collateralestoppel effect of Vornado I precluded respondent from relitigating its claim of trade-dress rights in the spiral grill design. It rejected respondent's contention that an intervening Federal Circuit case, Midwest Industries, Inc. v. Karavan Trailers, Inc., 175 F.3d 1356 (1999), which disagreed with the Tenth Circuit's reasoning in Vornado I, constituted a change in the law of trade dress that warranted relitigation of respondent's trade-dress claim. The court also stayed all proceedings related to respondent's counterclaim, adding that the counterclaim would be dismissed if the declaratory judgment and injunction entered in favor of petitioner were affirmed on appeal.829Respondent appealed to the Court of Appeals for the Federal Circuit. Notwithstanding petitioner's challenge to its jurisdiction, the Federal Circuit vacated the District Court's judgment, 13 Fed. Appx. 961 (2001), and remanded for consideration of whether the "change in the law" exception to collateral estoppel applied in light of TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U. S. 23 (2001), a case decided after the District Court's judgment which resolved a Circuit split involving Vornado I and Midwest Industries. We granted certiorari to consider whether the Federal Circuit properly asserted jurisdiction over the appeal. 534 U. S. 1016 (2001).IICongress vested the Federal Circuit with exclusive jurisdiction over "an appeal from a final decision of a district court of the United States ... if the jurisdiction of that court was based, in whole or in part, on [28 U. S. C. §] 1338 .... " 28 U. S. C. § 1295(a)(1) (emphasis added). Section 1338(a), in turn, provides in relevant part that "[t]he district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to patents .... " Thus, the Federal Circuit's jurisdiction is fixed with reference to that of the district court, and turns on whether the action arises under federal patent law.1Section 1338(a) uses the same operative language as 28 U. S. C. § 1331, the statute conferring general federalquestion jurisdiction, which gives the district courts "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." (Emphasis added.) We said in Christianson v. Colt Industries Operat-1 Like Christianson v. Colt Industries Operating Corp., 486 U. S. 800, 814-815 (1988), this case does not call upon us to decide whether the Federal Circuit's jurisdiction is fixed with reference to the complaint as initially filed or whether an actual or constructive amendment to the complaint raising a patent-law claim can provide the foundation for the Federal Circuit's jurisdiction.830ing Corp., 486 U. S. 800, 808 (1988), that "[l]inguistic consistency" requires us to apply the same test to determine whether a case arises under § 1338(a) as under § 1331.The well-pleaded-complaint rule has long governed whether a case "arises under" federal law for purposes of § 1331.2 See, e. g., Phillips Petroleum Co. v. Texaco Inc., 415 U. S. 125, 127-128 (1974) (per curiam). As "appropriately adapted to § 1338(a)," the well-pleaded-complaint rule provides that whether a case "arises under" patent law "must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration .... " Christianson, 486 U. S., at 809 (internal quotation marks omitted). The plaintiff's well-pleaded complaint must "establis[h] either that federal patent law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal patent law .... " Ibid. Here, it is undisputed that petitioner's well-pleaded complaint did not assert any claim arising under federal patent law. The Federal Circuit therefore erred in asserting jurisdiction over this appeal.ARespondent argues that the well-pleaded-complaint rule, properly understood, allows a counterclaim to serve as the basis for a district court's "arising under" jurisdiction. We disagree.2 The well-pleaded-complaint rule also governs whether a case is removable from state to federal court pursuant to 28 U. S. C. § 1441(a), which provides in relevant part:"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."See Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 (1983).831Admittedly, our prior cases have only required us to address whether a federal defense, rather than a federal counterclaim, can establish "arising under" jurisdiction. N evertheless, those cases were decided on the principle that federal jurisdiction generally exists "only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U. S. 386, 392 (1987) (emphasis added). As we said in The Fair v. Kohler Die & Specialty Co., 228 U. S. 22, 25 (1913), whether a case arises under federal patent law "cannot depend upon the answer." Moreover, we have declined to adopt proposals that "the answer as well as the complaint ... be consulted before a determination [is] made whether the case 'ar[ises] under' federal law .... " Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 10-11, n. 9 (1983) (citing American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts § 1312, pp. 188-194 (1969)). It follows that a counterclaim-which appears as part of the defendant's answer, not as part of the plaintiff's complaint-cannot serve as the basis for "arising under" jurisdiction. See, e. g., In re Adams, 809 F.2d 1187, 1188, n. 1 (CAS 1987); FDIC v. Elefant, 790 F.2d 661, 667 (CA7 1986); Takeda v. Northwestern National Life Ins. Co., 765 F.2d 815, 822 (CA9 1985); 14B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3722, pp. 402-414 (3d ed. 1998).Allowing a counterclaim to establish "arising under" jurisdiction would also contravene the longstanding policies underlying our precedents. First, since the plaintiff is "the master of the complaint," the well-pleaded-complaint rule enables him, "by eschewing claims based on federal law, ... to have the cause heard in state court." Caterpillar Inc., supra, at 398-399. The rule proposed by respondent, in contrast, would leave acceptance or rejection of a state forum to the master of the counterclaim. It would allow a832defendant to remove a case brought in state court under state law, thereby defeating a plaintiff's choice of forum, simply by raising a federal counterclaim. Second, conferring this power upon the defendant would radically expand the class of removable cases, contrary to the "[d]ue regard for the rightful independence of state governments" that our cases addressing removal require. See Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100, 109 (1941) (internal quotation marks omitted). And finally, allowing responsive pleadings by the defendant to establish "arising under" jurisdiction would undermine the clarity and ease of administration of the well-pleaded-complaint doctrine, which serves as a "quick rule of thumb" for resolving jurisdictional conflicts. See Franchise Tax Bd., supra, at 11.For these reasons, we decline to transform the longstanding well-pleaded-complaint rule into the "well-pleadedcomplaint-or-counterclaim rule" urged by respondent.BRespondent argues, in the alternative, that even if a counterclaim generally cannot establish the original "arising under" jurisdiction of a district court, we should interpret the phrase "arising under" differently in ascertaining the Federal Circuit's jurisdiction. In respondent's view, effectuating Congress's goal of "promoting the uniformity of patent law," Brief for Respondent 21, requires us to interpret §§ 1295(a)(1) and 1338(a) to confer exclusive appellate jurisdiction on the Federal Circuit whenever a patent-law counterclaim is raised.33 Echoing a variant of this argument, JUSTICE GINSBURG contends that "giv[ing] effect" to Congress's intention "to eliminate forum shopping and to advance uniformity in ... patent law" requires that the Federal Circuit have exclusive jurisdiction whenever a patent claim was "actually adjudicated." Post, at 840 (opinion concurring in judgment). We rejected precisely this argument in Christianson, viz., the suggestion that the Federal833We do not think this option is available. Our task here is not to determine what would further Congress's goal of ensuring patent-law uniformity, but to determine what the words of the statute must fairly be understood to mean. It would be difficult enough to give "arising under" the meaning urged by respondent if that phrase appeared in § 1295(a)(1)-the jurisdiction-conferring statute-itself Cf. Economic Stabilization Act of 1970, § 211(b)(2), 85 Stat. 749 (providing the Temporary Emergency Court of Appeals with exclusive jurisdiction over appeals "in cases and controversies arising under this title"). Even then the phrase would not be some neologism that might justify our adverting to the general purpose of the legislation, but rather a term familiar to all law students as invoking the wellpleaded-complaint rule. Cf. Coastal States Marketing, Inc. v. New England Petroleum Corp., 604 F.2d 179, 183 (CA2 1979) ("The use of the phrase 'cases and controversies arising under' ... is strong evidence that Congress intended to borrow the body of decisional law that has developed under 28 U. S. C. § 1331 and other grants of jurisdiction to the district courts over cases 'arising under' various regulatory statutes"). But the present case is even weaker than that, since § 1295(a)(1) does not itself use the term, but rather refers to jurisdiction under § 1338, where it is well established that "arising under any Act of Congress relating to patents" invokes, specifically, the well-pleaded-complaint rule. It would be an unprecedented feat of interpretive necromancy to say that § 1338(a)'s "arising under" language means one thing (the well-pleaded-complaint rule) in its own right,Circuit's jurisdiction is "fixed 'by reference to the case actually litigated.' " 486 U. S., at 813 (quoting Brief for Respondent in Christianson v. Colt Industries Operating Corp., O. T. 1987, No. 87-499, p. 31). We held that the Federal Circuit's jurisdiction, like that of the district court, "is determined by reference to the well-pleaded complaint, not the well-tried case." 486 U. S., at 814.834Opinion of STEVENS, J.but something quite different (respondent's complaint-orcounterclaim rule) when referred to by § 1295(a)(1).4***Not all cases involving a patent-law claim fall within the Federal Circuit's jurisdiction. By limiting the Federal Circuit's jurisdiction to cases in which district courts would have jurisdiction under § 1338, Congress referred to a wellestablished body of law that requires courts to consider whether a patent-law claim appears on the face of the plaintiff's well-pleaded complaint. Because petitioner's complaint did not include any claim based on patent law, we vacate the judgment of the Federal Circuit and remand the case with instructions to transfer the case to the Court of Appeals for the Tenth Circuit. See 28 U. S. C. § 1631.It is so ordered

OCTOBER TERM, 2001SyllabusHOLMES GROUP, INC. v. VORNADO AIR CIRCULATION SYSTEMS, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUITNo. 01-408. Argued March 19, 2002-Decided June 3, 2002Petitioner filed a federal-court action, seeking, inter alia, a declaratory judgment that its products did not infringe respondent's trade dress and an injunction restraining respondent from accusing it of such infringement. Respondent's answer asserted a compulsory patentinfringement counterclaim. The District Court ruled in petitioner's favor. Respondent appealed to the Federal Circuit, which, notwithstanding petitioner's challenge to its jurisdiction, vacated the District Court's judgment and remanded the case.Held: The Federal Circuit cannot assert jurisdiction over a case in which the complaint does not allege a patent-law claim, but the answer contains a patent-law counterclaim. Pp. 829-834.(a) The Federal Circuit's jurisdiction is fixed with reference to that of the district court, 28 U. S. C. § 1295(a)(1), and turns on whether the action is one "arising under" federal patent law, § 1338(a). Because § 1338(a) uses the same operative language as § 1331, which confers general federal-question jurisdiction, the well-pleaded-complaint rule governing whether a case arises under § 1331 also governs whether a case arises under § 1338(a). As adapted to § 1338(a), the rule provides that whether a case arises under patent law is determined by what appears in the plaintiff's well-pleaded complaint. Christianson v. Colt Industries Operating Corp., 486 U. S. 800, 809. Because petitioner's well-pleaded complaint asserted no claim arising under patent law, the Federal Circuit erred in asserting jurisdiction over this appeal. Pp. 829-830.(b) The well-pleaded-complaint rule does not allow a counterclaim to serve as the basis for a district court's "arising under" jurisdiction. To rule otherwise would contravene the face-of-the-complaint principle set forth in this Court's prior cases, see, e. g., Caterpillar Inc. v. Williams, 482 U. S. 386, 392, and the longstanding policies furthered by that principle: It would leave acceptance or rejection of a state forum to the master of the counterclaim rather than to the plaintiff; it would radically expand the class of removable cases; and it would undermine the clarity and ease of administration of the well-pleaded-complaint doctrine. Pp. 830-832.827(c) As for respondent's alternative argument, that reading §§ 1295(a)(I) and 1338(a) to confer appellate jurisdiction on the Federal Circuit whenever a patent-law counterclaim is raised is necessary to effectuate Congress's goal of promoting patent-law uniformity: This Court's task is not to determine what would further Congress's goal, but to determine what the statute's words must fairly be understood to mean. It would be impossible to say that § 1338(a)'s "arising under" language means the well-pleaded-complaint rule when read on its own, but respondent's complaint-or-counterc1aim rule when referred to by § 1295(a)(I). Pp. 832-834.13 Fed. Appx. 961, vacated and remanded.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and KENNEDY, SOUTER, THOMAS, and BREYER, JJ., joined, and in which STEVENS, J., joined as to Parts I and II-A. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 834. GINSBURG, J., filed an opinion concurring in the judgment, in which O'CONNOR, J., joined, post, p. 839.James W Dabney argued the cause for petitioner. With him on the brief were Paul Izzo, Timothy P. Gallogly, Arthur R. Miller, Marcia H. Sundeen, and Carol M. Wilhelm.Peter W Gowdey argued the cause for respondent. With him on the brief were Christopher P. Murphy, Janine A. Carlan, Kenneth W Starr, and Daryl L. Joseffer. *JUSTICE SCALIA delivered the opinion of the Court.In this case, we address whether the Court of Appeals for the Federal Circuit has appellate jurisdiction over a case in which the complaint does not allege a claim arising under federal patent law, but the answer contains a patent-law counterclaim.IRespondent, Vornado Air Circulation Systems, Inc., is a manufacturer of patented fans and heaters. In late 1992,* David W Long filed a brief for the Patent, Trademark, and Copyright Section of the Bar Association of the District of Columbia as amicus curiae.828Full Text of Opinion

1982_81-827

JUSTICE POWELL delivered the opinion of the Court.The issue presented is whether the sale of pharmaceutical products to state and local government hospitals for resale in competition with private retail pharmacies is exempt from the proscriptions of the Robinson-Patman Act.IPetitioner, a trade association of retail pharmacists and pharmacies doing business in Jefferson County, Alabama, Page 460 U. S. 152 commenced this action in 1978 in the District Court for the Northern District of Alabama as the assignee of its members' claims. Respondents are 15 pharmaceutical manufacturers, the Board of Trustees of the University of Alabama, and the Cooper Green Hospital Pharmacy. The University operates a medical center, including hospitals, and a medical school. Located in the University's medical center are two pharmacies. Cooper Green Hospital is a county hospital, existing as a public corporation under Alabama law.The complaint seeks treble damages and injunctive relief under §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, 15 U.S.C. §§ 15 and 26, for alleged violations of §§ 2(a) and (f) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act (Act), 49 Stat. 1526, 15 U.S.C. §§ 13(a) and (f). Petitioner contends that the respondent manufacturers violated § 2(a) [Footnote 1] by selling their products to the University's two pharmacies and to Cooper Green Hospital Pharmacy at prices lower than those charged petitioner's members for like products. Petitioner alleges that the respondent hospital pharmacies knowingly induced such lower prices in violation of § 2(f) [Footnote 2] and sold the drugs to the general public in direct competition with privately owned pharmacies. Petitioner Page 460 U. S. 153 also alleges that the price discrimination is not exempted from the proscriptions of the Act by 15 U.S.C. § 13c. [Footnote 3]Respondents moved to dismiss the complaint on the ground that state purchases [Footnote 4] are exempt as a matter of law from the sanctions of § 2. In granting respondents' motions, the District Court expressly accepted as true the allegations that local retail pharmacies had been injured by the challenged price discrimination and that at least some of the state purchases were not exempt under § 13c. 656 F.2d 92, 98 (CA5 1981) (reprinting District Court's opinion as Appendix). The District Court held that"governmental purchases are, without regard to 15 U.S.C. § 13c, beyond the intended reach of the Robinson-Patman Price Discrimination Act, at least with respect to purchases for hospitals and other traditional governmental purposes."Id. at 102. The Court of Appeals for the Fifth Circuit, in a divided per curiam decision, affirmed "on the basis of the district court's Memorandum of Opinion." Id. at 93. [Footnote 5]We granted certiorari to resolve this important question of federal law. 455 U.S. 999 (1982). We now reverse.IIThe issue here is narrow. We are not concerned with sales to the Federal Government, nor with state purchases Page 460 U. S. 154 for use in traditional governmental functions. [Footnote 6] Rather, the issue before us is limited to state purchases for the purpose of competing against private enterprise -- with the advantage of discriminatory prices -- in the retail market. [Footnote 7]The courts below held, and respondents contend, that the Act exempts all state purchases. Assuming, without deciding, that Congress did not intend the Act to apply to state purchases for consumption in traditional governmental functions, and that such purchases are therefore exempt, we conclude that the exemption does not apply where a State has chosen to compete in the private retail market.IIIThe Robinson-Patman Act, by its terms, does not exempt state purchases. The only express exemption is that for Page 460 U. S. 155 nonprofit institutions contained in 15 U.S.C. § 13c. [Footnote 8] Moreover, as the courts below conceded, "[t]he statutory language -- persons' and `purchasers' -- is sufficiently broad to cover governmental bodies. 15 U.S.C. §§ 12, 13(a, f)." 656 F.2d at 99. [Footnote 9] This concession was compelled by several of this Court's decisions. [Footnote 10] In City of Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 435 U. S. 395 (1978), for example, we stated without qualification that "the definition of `person' or `persons' embraces both cities and States.'" [Footnote 11] Page 460 U. S. 156Respondents would distinguish City of Lafayette from the case before us because it involved the Sherman Act, rather than the Robinson-Patman Act. [Footnote 12] Such a distinction ignores the specific reference to the Robinson-Patman Act in our discussion of the all-inclusive nature of the term "person." Id. at 435 U. S. 397, n. 14. We do not perceive any reason to construe the word "person" in that Act any differently than we have in the Clayton Act, which it amends, [Footnote 13] and it is undisputed that the Clayton Act applies to States. See Hawaii v. Standard Oil Co., 405 U. S. 251, 405 U. S. 260-261 (1972). [Footnote 14] In sum, the plain language Page 460 U. S. 157 of the Act strongly suggests that there is no exemption for state purchases to compete with private enterprise.IVThe plain language of the Act is controlling unless a different legislative intent is apparent from the purpose and history of the Act. An examination of the legislative purpose and history here reveals no such contrary intention.AOur cases have been explicit in stating the purposes of the antitrust laws, including the Robinson-Patman Act. On numerous occasions, this Court has affirmed the comprehensive coverage of the antitrust laws, and has recognized that these laws represent"a carefully studied attempt to bring within [them] every person engaged in business whose activities might restrain or monopolize commercial intercourse among the states."United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 322 U. S. 553 (1944). [Footnote 15] In Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), the Court observed that "our cases have repeatedly established that there is a heavy presumption Page 460 U. S. 158 against implicit exemptions" from the antitrust laws. Id. at 421 U. S. 787 (citing United States v. Philadelphia National Bank, 374 U. S. 321, 374 U. S. 350-351 (1963); California v. FPC, 369 U. S. 482, 369 U. S. 485 (1962)). [Footnote 16] In City of Lafayette, supra, applying antitrust laws to a city in competition with a private utility, we held that no exemption for local governments would be implied. The Court emphasized the purposes and scope of the antitrust laws:"[T]he economic choices made by public corporations . . . designed as they are to assure maximum benefits for the community constituency, are not inherently more likely to comport with the broader interests of national economic wellbeing than are those of private corporations acting in furtherance of the interests of the organization and its shareholders."436 U.S. at 436 U. S. 403. See also id. at 436 U. S. 408. [Footnote 17]These principles, and the purposes they further, have been helpful in interpreting the language of the Robinson-Patman Page 460 U. S. 159 Act. As JUSTICE BLACKMUN stated for the Court in Abbott Laboratories v. Portland Retail Druggists Assn., Inc., 425 U. S. 1, 425 U. S. 11-12 (1976):"It has been said, of course, that the antitrust laws, and Robinson-Patman in particular, are to be construed liberally, and that the exceptions from their application are to be construed strictly. United States v. McKesson & Robbins, 351 U. S. 305, 351 U. S. 316 (1956); FMC v. Seatrain Lines, Inc., 411 U. S. 726, 411 U. S. 733 (1973); Perkins v. Standard Oil Co., 395 U. S. 642, 395 U. S. 646-647 (1969). The Court has recognized, also, that Robinson-Patman""was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power.""FTC v. Broch & Co., 363 U. S. 166, 363 U. S. 168 (1960); FTC v. Fred Meyer, Inc., 390 U. S. 341, 390 U. S. 349 (1968). Because the Act is remedial, it is to be construed broadly to effectuate its purposes. See Tcherepnin v. Knight, 389 U. S. 332, 389 U. S. 336 (1967); Peyton v. Rowe, 391 U. S. 54, 391 U. S. 65 (1968)."BThe legislative history falls far short of supporting respondents' contention that there is an exemption for state purchases of "commodities" for "resale." There is nothing whatever in the Senate or House Committee Reports, or in the floor debates, focusing on the issue. [Footnote 18] Some Members of Congress were aware of the possibility that the Act would Page 460 U. S. 160 apply to governmental purchases. Most Members, however, were concerned not with state purchases, but with possible limitations on the Federal Government. The most relevant legislative history is the testimony of the Act's principal draftsman, H. B. Teegarden, before the House Judiciary Committee. [Footnote 19] Although the testimony is ambiguous on the Page 460 U. S. 161 application of the Act to state purchases for consumption, one conclusion is certain: Teegarden expressly stated that the Act would apply to the purchases of municipal hospitals in at least some circumstances. [Footnote 20] Thus, his comments directly contradict the exemption found by the courts below for all such purchasing. [Footnote 21] In the absence of any other relevant evidence, Page 460 U. S. 162 we find no legislative intention to enable a State, by an unexpressed exemption, to enter private competitive markets with congressionally approved price advantages. [Footnote 22] Page 460 U. S. 163VDespite the plain language of the Act and its legislative history, respondents nevertheless argue that subsequent legislative events and decisions of District Courts confirm that state purchases are outside the scope of the Act. We turn therefore to these subsequent events. Page 460 U. S. 164ARespondents cite the hearings on the Robinson-Patman Act held in the late 1960's. [Footnote 23] Testimony before the House Subcommittee investigating practices in the pharmaceutical industry indicated that the Act did not cover price discrimination in favor of state hospitals, [Footnote 24] and Federal Trade Commission Chairman Paul Dixon disclaimed any authority over transactions involving state health care programs. [Footnote 25] It Page 460 U. S. 165 is not at all clear, however, whether Chairman Dixon contemplated cases in which the state agency competed with private retailers, although he was aware of such practices by institutional purchasers. [Footnote 26] Other statements expressed little more than informed, interested opinions on the issue presented, and are not entitled to the consideration appropriate for the constructions given contemporaneously with the Act's passage. [Footnote 27] See supra at 460 U. S. 159-162, and n. 22.It is clear from the House Subcommittee's conclusions that it did not focus on the question presented by this case. The Subcommittee found that the difference between drug prices for retailers and government customers "is extremely substantial," and"not always fully explainable by either cost justifiable quantity discounts, economies of scale, or other factors inherent in bulk distribution."H.R.Rep. No.1983, 90th Cong., 2d Sess., 77 (1968). In the next conclusion, it stated that "[n]umerous acts and policies of individual manufacturers seem . . . violative of the Robinson-Patman Page 460 U. S. 166 Act. . . ." Ibid. Thus, it is quite possible that the Subcommittee considered some state purchasing at discriminatory prices -- about which it had heard testimony -- to be unlawful. The Subcommittee Report did include the awkwardly worded statement:"There is no basis apparent . . . why the mandate of the Robinson-Patman Act should not be applied to discriminatory drug sales favoring nongovernmental institutional purchasers, profit or nonprofit, to the extent there is prescription drug competition at the retail level with disfavored retail druggists."Id. at 79. This unexceptional opinion, however, simply says that private institutional purchases may not facilitate unfair retail competition through sales at discriminatory prices. The Subcommittee said nothing expressly about the unfair competition at issue in this case. [Footnote 28]BRespondents also argue that, without exception, courts considering the Act's coverage have concluded that it does not apply to government purchasers. They insist that no court has imposed liability upon a seller or buyer, under either § 2(a) or § 2(f), when the discriminatory price involved a sale to a State, city, or county. See Brief for Respondent Board of Trustees 31-32. There are serious infirmities in these broad assertions: (i) this Court has never held nor suggested that there is an exemption for state purchases; [Footnote 29] (ii) the number of judicial decisions even considering the Act's application Page 460 U. S. 167 to purchases by state agencies is relatively small; [Footnote 30] (iii) respondents cite no Court of Appeals decision that has expressly adopted their interpretation of § 2 before the decision below; (iv) some of the District Court cases upon which respondents rely are simply inapposite; [Footnote 31] (V) it is not clear that any published District Court opinion has relied solely on a state purchase exemption to dismiss a Robinson-Patman Act claim alleging injury as a result of government competition in the private market; [Footnote 32] and (vi) there are several cases that Page 460 U. S. 168 suggest that the Robinson-Patman Act is applicable to state purchases for resale purposes. [Footnote 33] This judicial track record is in no sense comparable to the unbroken chain of judicial decisions upon which this Court previously has relied for ascertaining a construction of the antitrust laws that Congress, over a long period of time, has chosen to preserve. See cases cited, n 27, supra.Respondents also seek support in the interpretations of various commentators and executive officials. But the most authoritative of these sources indicate that the question presented Page 460 U. S. 169 is unsettled; [Footnote 34] others are not necessarily inconsistent with our holding, [Footnote 35] and, in some cases, they support it. [Footnote 36] Thus, Congress cannot be said to have left untouched a universally held interpretation of the Act. [Footnote 37]In sum, it is clear that post-enactment developments -- whether legislative, judicial, or in commentary -- rarely have Page 460 U. S. 170 considered the specific issue before us. There is simply no unambiguous evidence of congressional intent to exempt purchases by a State for the purpose of competing in the private retail market with a price advantage. [Footnote 38]VIThe Robinson-Patman Act has been widely criticized, both for its effects and for the policies that it seeks to promote. Although Congress is well aware of these criticisms, the Act has remained in effect for almost half a century. And it certainly is"not for [this Court] to indulge in the business of policymaking in the field of antitrust legislation. . . . Our function ends with the endeavor to ascertain from the words used, construed in the light of the relevant material, what was in fact the intent of Congress."United States v. Cooper Corp., 312 U. S. 600, 312 U. S. 606 (1941)."A general application of the [Robinson-Patman] Act to all combinations of business and capital organized to suppress commercial competition is in harmony with the spirit and impulses of the times which gave it birth."South-Eastern Underwriters, 322 U.S. at 322 U. S. 553. The legislative history is replete with references to the economic evil of large organizations purchasing from other large organizations for resale in competition with the small, local retailers. There is no reason, Page 460 U. S. 171 in the absence of an explicit exemption, to think that Congressmen who feared these evils intended to deny small businesses, such as the pharmacies of Jefferson County, Alabama, protection from the competition of the strongest competitor of them all. [Footnote 39] To create an exemption here clearly would be contrary to the intent of Congress.VIIWe hold that the sale of pharmaceutical products to state and local government hospitals for resale in competition with private pharmacies is not exempt from the proscriptions of the Robinson-Patman Act. 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

U.S. Supreme CourtJefferson Cty. Pharm. Ass'n v. Abbott Labs., 460 U.S. 150 (1983)Jefferson County Pharmaceutical Association v. Abbott LaboratoriesNo. 81-827Argued November 8, 1982Decided February 23, 1983460 U.S. 150SyllabusPetitioner trade association of retail pharmacists and pharmacies filed an antitrust suit in Federal District Court against respondent pharmaceutical manufacturers, the Board of Trustees of the University of Alabama, which operates pharmacies in connection with its hospitals, and a county hospital pharmacy. Petitioner alleged that respondent manufacturers violated the price-discrimination proscriptions of the Robinson-Patman Act by selling their products to respondent hospital pharmacies at prices lower than those charged petitioners' members for like products, and that respondent pharmacies knowingly induced such lower prices in violation of the Act and sold the drugs to the general public in direct competition with privately owned pharmacies. The District Court granted respondents' motions to dismiss the complaint, holding that state purchases are beyond the Act's intended reach. The Court of Appeals affirmed .Held: The sale of pharmaceutical products to state and local government hospitals for resale in competition with private pharmacies is not exempt from the Act's proscriptions. Pp. 460 U. S. 153-171.(a) The Act, by its terms, does not exempt state purchases, and the statutory language is sufficiently broad to cover governmental bodies. Thus, the Act's plain language strongly suggests that there is no exemption for state purchases to compete with private enterprise. Pp. 460 U. S. 154-157.(b) Such an exemption is not supported by the purposes of the antitrust laws, including the Robinson-Patman Act. Those laws represent a carefully studied attempt to bring within them every person engaged in business whose activities might restrain or monopolize commercial intercourse among the States. And the Act's history does not reveal any legislative intention to enable a State, by an unexpressed exemption, to enter private competitive markets with congressionally approved price advantages. Pp. 460 U. S. 157-162.(c) Nor is respondents' contention that state purchases are outside the Act's scope clearly supported by subsequent legislative events (particularly the hearings on the Act held in the late 1960's) or by court decisions or the interpretations of commentators and executive officials. Page 460 U. S. 151 Thus, Congress cannot be said to have left untouched a universally held interpretation of the Act. Pp. 460 U. S. 163-170.(d) It is not for this Court to indulge in the business of policymaking in the field of antitrust legislation. The legislative history is replete with references to the economic evil of large organizations purchasing from other large organizations for resale in competition with small, local retailers. To create an exemption in this case clearly would be contrary to Congress' intent. Pp. 460 U. S. 170-171.656 F.2d 92, reversed and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 460 U. S. 171. O'CONNOR, J., filed a dissenting opinion, in which BRENNAN, REHNQUIST and STEVENS, JJ., joined, post, p. 460 U. S. 174.

1996_95-974

interest in defending the measure they successfully sponsored-is dubious because they are not elected state legislators, authorized by state law to represent the State's interests, see Karcher v. May, 484 U. S. 72, 82. Furthermore, this Court has never identified initiative proponents as Article-Ill-qualified defenders. Cf. Don't Bankrnpt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U. S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e. g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. 544, 551-553, and absent anything in Article XXVIII's state-court citizen-suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article's constitutionality in federal court. Nevertheless, this Court need not definitively resolve the standing of AOE and Park to proceed as they did, but assumes such standing arguendo in order to analyze the question of mootness occasioned by originating plaintiff Yniguez's departure from state employment. See, e. g., Burke v. Barnes, 479 U. S. 361,363,364, n. Pp.64-67.(b) Because Yniguez no longer satisfies the case-or-controversy requirement, this case is moot. To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. E. g., Preiser v. Newkirk, 422 U. S. 395, 401. Although Yniguez had a viable claim at the outset of this litigation, her resignation from public sector employment to pursue work in the private sector, where her speech was not governed by Article XXVIII, mooted the case stated in her complaint. Cf. Boyle v. Landry, 401 U. S. 77, 78, 80-81. Contrary to the Ninth Circuit's ruling, her implied plea for nominal damages, which the Ninth Circuit approved as against the State of Arizona, could not revive the case, as § 1983 actions do not lie against a State, Will v. Michigan Dept. of State Police, 491 U. S. 58, 71; Arizona was permitted to participate in the appeal only as an intervenor, through its Attorney General, not as a party subject to an obligation to pay damages; and the State's cooperation with Yniguez in waiving Eleventh Amendment immunity did not recreate a live case or controversy fit for federal-court adjudication, cf., e. g., United States v. Johnson, 319 U. S. 302, 304. Pp. 67-71.(c) When a civil case becomes moot pending appellate adjudication, the established practice in the federal system is to reverse or vacate the judgment below and remand with a direction to dismiss. United States v. Munsingwear, Inc., 340 U. S. 36, 39. This Court is not disarmed from that course by the State Attorney General's failure to petition for certiorari. The Court has an obligation to inquire not only into its own46authority to decide the questions presented, but to consider also the authority of the lower courts to proceed, even though the parties are prepared to concede it. E. g., Bender v. Williamsport Area School Dist., 475 U. S. 534,541. Because the Ninth Circuit refused to stop the adjudication when it learned of the mooting event-Yniguez's departure from public employment-its unwarranted en banc judgment must be set aside. Nor is the District Court's judgment saved by its entry before the occurrence of the mooting event or by the Governor's refusal to appeal from it. AOE and Park had an arguable basis for seeking appellate review; moreover, the State Attorney General's renewed certification plea and his motion to intervene in this litigation demonstrate that he was pursuing his § 2403(b) right to defend Article XXVIII's constitutionality when the mooting event occurred. His disclosure of that event to the Ninth Circuit warranted a mootness disposition, which would have stopped his § 2403(b) endeavor and justified vacation of the District Court's judgment. The extraordinary course of this litigation and the federalism concern next considered lead to the conclusion that vacatur down the line is the equitable solution. pp. 71-75.(d) Taking into account the novelty of the question of Article XXVIII's meaning, its potential importance to the conduct of Arizona's business, the State Attorney General's views on the subject, and the at-least-partial agreement with those views by the Article's sponsors, more respectful consideration should have been given to the Attorney General's requests to seek, through certification, an authoritative construction of the Article from the State Supreme Court. When anticipatory relief is sought in federal court against a state statute, respect for the place of the States in our federal system calls for close consideration of the question whether conflict is avoidable. Federal courts are not well equipped to rule on a state statute's constitutionality without a controlling interpretation of the statute's meaning and effect by the state courts. See, e. g., Poe v. Ullman, 367 U. S. 497, 526 (Harlan, J., dissenting). Certification saves time, energy, and resources and helps build a cooperative judicial federalism. See, e. g., Lehman Brothers v. Schein, 416 U. S. 386, 391. Contrary to the Ninth Circuit's suggestion, this Court's decisions do not require as a condition precedent to certification a concession by the Attorney General that Article XXVIII would be unconstitutional if construed as Yniguez contended it should be. Moreover, that court improperly blended abstention with certification when it found that "unique circumstances," rather than simply a novel or unsettled state-law question, are necessary before federal courts may employ certification. The Arizona Supreme Court has before it, in Ruiz v. State, the question: What does Article XXVIII mean? Once that court has spoken, adjudication of any remaining federal constitu-47tional question may be "greatly simplifie[d]." See Bellotti v. Baird, 428 U. S. 132, 151. Pp. 75-80.69 F.3d 920, vacated and remanded.GINSBURG, J., delivered the opinion for a unanimous Court.Barnaby W Zall argued the cause and filed briefs for petitioners.Robert J. Pohlman argued the cause for respondents.With him on the brief for respondent Yniguez was Brian A. Luscher. Stephen G. Montoya, Albert M. Flores, and George Robles Vice III filed a brief for respondents Arizonans Against Constitutional Tampering et al. Grant Woods, Attorney General, Rebecca White Berch, First Assistant Attorney General, C. Tim Delaney, Solicitor General, Paula S. Bickett, Assistant Attorney General, and Carter G. Phillips filed briefs for respondents State of Arizona et al. **Briefs of amici curiae urging reversal were filed for the FLA-187 Committee et al. by Stanley W Sokolowski; for the Pacific Legal Foundation by Sharon L. Browne; for U. S. English, Inc., by Leonard J. Henzke, Jr.; for the Washington Legal Foundation et al. by Richard K. Willard, Bennett Evan Cooper, Daniel J. Popeo, Richard A. Samp, and Don Stenberg; and for Thurston Greene, pro se.Briefs of amici curiae urging affirmance were filed for the State of New Mexico by Tom Udall, Attorney General, Manuel Tijerina, Deputy Attorney General, and Gerald T. E. Gonzalez, Tannis L. Fox, Laura Fashing, Elizabeth A. Glenn, and William S. Keller, Assistant Attorneys General; for the American Civil Liberties Union et al. by Edward M. Chen, Steven R. Shapiro, Marjorie Heins, and Robert L. Rusky; for the Hawaii Civil Rights Commission et al. by John H. Ishihara, Carl C. Christensen, and Eric K. Yamamoto; for Human Rights Watch by Allan Blumstein and Kenneth Roth; for the Linguistic Society of America et al. by Peter M. Tiersma; for the Mexican American Legal Defense and Educational Fund by E. Richard Larson; for the National Council of La Raza et al. by Joseph N. Onek, William D. Wallace, and Javier M. Guzman; for the Navajo Nation by Thomas W Christie; for the Puerto Rican Legal Defense and Education Fund et al. by Kenneth Kimerling, Karen K. Narasaki, and Richard Albores; and for Representative Nydia M. Velazquez et al. by Walter A. Smith, Jr., and Audrey J. Anderson.Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Deputy Assistant Attorney Gen-48JUSTICE GINSBURG delivered the opinion of the Court. Federal courts lack competence to rule definitively on the meaning of state legislation, see, e. g., Reetz v. Bozanich, 397 U. S. 82, 86-87 (1970), nor may they adjudicate challenges to state measures absent a showing of actual impact on the challenger, see, e. g., Golden v. Zwickler, 394 U. S. 103, 110 (1969). The Ninth Circuit, in the case at hand, lost sight of these limitations. The initiating plaintiff, Maria-Kelly F. Yniguez, sought federal-court resolution of a novel question: the compatibility with the Federal Constitution of a 1988 amendment to Arizona's Constitution declaring English "the official language of the State of Arizona"-"the language of ... all government functions and actions." Ariz. Const., Art. XXVIII, §§ 1(1), 1(2). Participants in the federallitigation, proceeding without benefit of the views of the Arizona Supreme Court, expressed diverse opinions on the meaning of the amendment.Yniguez commenced and maintained her suit as an individual, not as a class representative. A state employee at the time she filed her complaint, Yniguez voluntarily left the State's employ in 1990 and did not allege she would seek to return to a public post. Her departure for a position in the private sector made her claim for prospective relief moot. Nevertheless, the Ninth Circuit held that a plea for nominal damages could be read into Yniguez's complaint to save the case, and therefore pressed on to an ultimate decision. A three-judge panel of the Court of Appeals declared Article XXVIII unconstitutional in 1994, and a divided en banc court, in 1995, adhered to the panel's position.The Ninth Circuit had no warrant to proceed as it did.The case had lost the essential elements of a justiciable controversy and should not have been retained for adjudication on the merits by the Court of Appeals. We thereforeeral Preston, Irving L. Gornstein, and Anthony J. Steinmeyer filed a brief for the United States as amicus curiae.49vacate the Ninth Circuit's judgment, and remand the case to that court with directions that the action be dismissed by the District Court. We express no view on the correct interpretation of Article XXVIII or on the measure's constitutionality.IA 1988 Arizona ballot initiative established English as the official language of the State. Passed on November 8, 1988, by a margin of one percentage point,l the measure became effective on December 5 as Arizona State Constitution Article XXVIII. Among key provisions, the Article declares that, with specified exceptions, the State "shall act in English and in no other language." Ariz. Const., Art. XXVIII, § 3(1)(a). The enumerated exceptions concern compliance with federal laws, participation in certain educational programs, protection of the rights of criminal defendants and crime victims, and protection of public health or safety. Id., § 3(2). In a final provision, Article XXVIII grants standing to any person residing or doing business in the State "to bring suit to enforce thee] Article" in state court, under such "reasonable limitations" as "[t]he Legislature may enact." Id., §4.2Federal-court litigation challenging the constitutionality of Article XXVIII commenced two days after the ballot initiative passed. On November 10, 1988, Maria-Kelly F. Yniguez, then an insurance claims manager in the Arizona Department of Administration's Risk Management Division, sued the State of Arizona in the United States District Court for the District of Arizona. Yniguez invoked 42 U. S. C.1 The measure, opposed by the Governor as "sadly misdirected," App. 38, drew the affirmative votes of 50.5% of Arizonans casting ballots in the election, see Yniguez v. Arizonans for Official English, 69 F.3d 920, 924 (CA91995).2 Article XXVIII, titled "English as the Official Language," is set out in full in an appendix to this opinion.50§ 1983 as the basis for her suit.3 Soon after the lawsuit commenced, Yniguez added as defendants, in their individual and official capacities, Arizona Governor Rose Mofford, Arizona Attorney General Robert K. Corbin, and the Director of Arizona's Department of Administration, Catherine Eden. Yniguez brought suit as an individual and never sought designation as a class representative.Fluent in English and Spanish, Yniguez was engaged primarily in handling medical malpractice claims against the State. In her daily service to the public, she spoke English to persons who spoke only that language, Spanish to persons who spoke only that language, and a combination of English and Spanish to persons able to communicate in both languages. Record, Doc. No. 62, "8, 13 (Statement of Stipulated Facts, filed Feb. 9, 1989). Yniguez feared that Article XXVIII's instruction to "act in English," § 3(1)(a), if read broadly, would govern her job performance "every time she [did] something." See Record, Doc. No. 62, , 10. She believed she would lose her job or face other sanctions if she did not immediately refrain from speaking Spanish while serving the State. See App. 58, , 19 (Second Amended Complaint). Yniguez asserted that Article XXVIII violated the First and Fourteenth Amendments to the United States Constitution and Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d. She requested injunctive and declaratory relief, counsel fees, and "all other relief that the3 Derived from § 1 of the Civil Rights Act of 1871, Rev. Stat. § 1979, 42 U. S. C. § 1983 provides in relevant part:"Civil action for deprivation of rights."Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."51Court deems just and proper under the circumstances." App.60.All defendants named in Yniguez's complaint moved to dismiss all claims asserted against them.4 The State of Arizona asserted immunity from suit under the Eleventh Amendment. The individual defendants asserted the absence of a case or controversy because "none of [them] ha[d] threatened [Yniguez] concerning her use of Spanish in the performance of her job duties [or had] ever told her not to use Spanish [at work]." Record, Doc. No. 30, p. 1. The defendants further urged that novel state-law questions concerning the meaning and application of Article XXVIII should be tendered first to the state courts. See id., at 2.5Trial on the merits of Yniguez's complaint, the parties agreed, would be combined with the hearing on her motion for a preliminary injunction.6 Before the trial occurred, the State Attorney General, on January 24, 1989, released an opinion, No. 189-009, construing Article XXVIII and explaining why he found the measure constitutional. App. 61-76.4 Under Arizona law, the State Attorney General represents the State in federal court. See Ariz. Rev. Stat. Ann. § 41-193(A)(3) (1992). Throughout these proceedings, the State and all state officials have been represented by the State Attorney General, or law department members under his supervision. See §41-192(A).5 Arizona law permits the State's highest court to "answer questions of law certified to it by the supreme court of the United States, a court of appeals of the United States, a United States district court or a tribal court ... if there are involved in any proceedings before the certifying court questions of [Arizona law] which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the intermediate appellate courts of this state." Ariz. Rev. Stat. Ann. § 12-1861 (1994).6 The District Court, on December 8, 1988, had denied Yniguez's application for a temporary restraining order, finding no "imminent danger of the imposition of sanctions" against her. Record, Doc. No. 23, p. 1.52In Opinion No. 189-009, the Attorney General said it was his obligation to read Article XXVIII "as a whole," in line "with the other portions of the Arizona Constitution" and "with the United States Constitution and federal laws." App. 61. While Article XXVIII requires the performance of "official acts of government" in English, it was the Attorney General's view that government employees remained free to use other languages "to facilitate the delivery of governmental services." Id., at 62. Construction of the word "act," as used in Article XXVIII, to mean more than an "official ac[t] of government," the Attorney General asserted, "would raise serious questions" of compatibility with federal and state equal protection guarantees and federal civil rights legislation. Id., at 65-66.7On February 9, 1989, two weeks after release of the Attorney General's opinion, the parties filed a statement of stipulated facts, which reported Governor Mofford's opposition to the ballot initiative, her intention nevertheless "to comply with Article XXVIII," and her expectation that "State service employees [would] comply" with the measure. See Record, Doc. No. 62, "35, 36, 39. The stipulation confirmed the view of all parties that "[t]he efficient operation [and administration] of the State is enhanced by permitting State service employees to communicate with citizens of the State in languages other than English where the citizens are not proficient in English." Id.," 16, 17. In particular, the parties recognized that "Y niguez'[s] use of a language other7 Specifically addressing "[t]he handling of customer inquiries or complaints involving state or local government services," the Attorney General elaborated:"All official documents that are governmental acts must be in English, but translation services and accommodating communications are permissible, and may be required if reasonably necessary to the fair and effective delivery of services, or required by specific federal regulation. Communications between elected and other governmental employees with the public at large may be in a language other than English on the same principles." App.74.53than English in the course of her performing government business contributes to the efficient operation ... and ... administration of the State." Id.,' 15. The stipulation referred to the Attorney General's January 24, 1989, opinion, id., , 46, and further recounted that since the passage of Article XXVIII, "none of [Yniguez's] supervisors ha[d] ever told her to change or cease her prior use of Spanish in the performance of her duties," id., , 48.8The District Court heard testimony on two days in February and April 1989, and disposed of the case in an opinion and judgment filed February 6, 1990. Yniguez v. Mofford, 730 F. Supp. 309. Prior to that final decision, the court had dismissed the State of Arizona as a defendant, accepting the State's plea of Eleventh Amendment immunity. See id., at 311. Yniguez's second amended complaint, filed February 23, 1989, accordingly named as defendants only the Governor, the Attorney General, and the Director of the Department of Administration. See App. 55.9The District Court determined first that, among the named defendants, only the Governor, in her official capacity, was a proper party. The Attorney General, the District Court found, had no authority under Arizona law to enforce provisions like Article XXVIII against state employees. 730 F. Supp., at 311-312. The Director and the Governor,8 Supplementing their pleas to dismiss for want of a case or controversy, the defendants urged that Attorney General Opinion No. 189-009 "puts to rest any claim that [Yniguez] will be penalized by the State for using Spanish in her work." Record, Doc. No. 51, p. 4, n. 1.9 The second amended complaint added another plaintiff, Arizona State Senator Jaime Gutierrez. Senator Gutierrez alleged that Article XXVIII interfered with his rights to communicate freely with persons, including residents of his Senate district, who spoke languages other than English. App. 58-59. The District Court dismissed Gutierrez's claim on the ground that the defendants, all executive branch officials, lacked authority to take enforcement action against elected legislative branch officials. Yniguez v. Mofford, 730 F. Supp. 309, 311 (Ariz. 1990). Gutierrez is no longer a participant in these proceedings.54on the other hand, did have authority to enforce state laws and rules against state service employees. Id., at 311. But nothing in the record, the District Court said, showed that the Director had undertaken or threatened to undertake any action adverse to Yniguez. Id., at 313. That left Governor Mofford.The Attorney General "ha[d] formally interpreted Article XXVIII as not imposing any restrictions on Yniguez's continued use of Spanish during the course of her official duties," id., at 312, and indeed all three named defendantsMofford as well as Corbin and Eden, see supra, at 50-"ha[d] stated on the record that Yniguez may continue to speak Spanish without fear of official retribution." 730 F. Supp., at 312. Governor Mofford therefore reiterated that Yniguez faced no actual or threatened injury attributable to any Arizona executive branch officer, and hence presented no genuine case or controversy. See ibid. But the District Court singled out the stipulations that "Governor Mofford intends to comply with Article XXVIII," and "expects State service employees to comply with Article XXVII!." Record, Doc. No. 62, " 35, 36; see 730 F. Supp., at 312. If Yniguez proved right and the Governor wrong about the breadth of Article XXVIII, the District Court concluded, then Yniguez would be vulnerable to the Governor's pledge to enforce compliance with the Article. See ibid.Proceeding to the merits, the District Court found Article XXVIII fatally overbroad. The measure, as the District Court read it, was not merely a direction that all official acts be in English, as the Attorney General's opinion maintained; instead, according to the District Court, Article XXVIII imposed a sweeping ban on the use of any language other than English by all of Arizona officialdom, with only limited exceptions. Id., at 314. The District Court adverted to the Attorney General's confining construction, but found it unpersuasive. Opinion No. 189-009, the District Court observed, is "merely ... advisory," not binding on any55court. 730 F. Supp., at 315. "More importantly," the District Court concluded, "the Attorney General's interpretation ... is simply at odds with Article XXVIII's plain language." Ibid.The view that Article XXVIII's text left no room for a moderate and restrained interpretation led the District Court to decline "to allow the Arizona courts the initial opportunity to determine the scope of Article XXVII!." Id., at 316. The District Court ultimately dismissed all parties save Yniguez and Governor Mofford in her official capacity, then declared Article XXVIII unconstitutional as violative of the First and Fourteenth Amendments, but denied Yniguez's request for an injunction because "she ha[d] not established an enforcement threat sufficient to warrant [such] relief." Id., at 316-317.Post judgment motions followed, sparked by Governor Mofford's announcement that she would not pursue an appeal. See App. 98. The Attorney General renewed his request to certify the pivotal state-law question-the correct construction of Article XXVIII-to the Arizona Supreme Court. See Record, Doc. No. 82. He also moved to intervene on behalf of the State, pursuant to 28 U. S. C. § 2403(b),lO in order to contest on appeal the District Court's declaration that a provision of Arizona's Constitution violated the Federal Constitution. Record, Doc. Nos. 92, 93.10 Title 28 U. S. C. § 2403(b) provides:"In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality."56Two newcomers also appeared in the District Court after judgment: the Arizonans for Official English Committee (AOE) and Robert D. Park, Chairman of AOE. Invoking Rule 24 of the Federal Rules of Civil Procedure, AOE and Park moved to intervene as defendants in order to urge on appeal the constitutionality of Article XXVIII. App. 94102. AOE, an unincorporated association, was principal sponsor of the ballot initiative that became Article XXVIII. AOE and Park alleged in support of their intervention motion the interest of AOE members in enforcement of Article XXVIII and Governor Mofford's unwillingness to defend the measure on appeal. Responding to the AOE/Park motion, Governor Mofford confirmed that she did not wish to appeal, but would have no objection to the Attorney General's intervention to pursue an appeal as the State's representative, or to the pursuit of an appeal by any other party. See Record, Doc. No. 94.Yniguez expressed reservations about proceeding further."She ha[d] won [her] suit against her employer" and had "obtained her relief," her counsel noted. Record, Doc. No. 114, p. 18 (Tr. of Proceeding on Motion to Intervene and Motion to Alter or Amend Judgment, Mar. 26, 1990). If the litigation "goes forward," Yniguez's counsel told the District Court, "I guess we do, too," but, counsel added, it might be in Yniguez's "best interest ... if we stopped it right here." Ibid. The District Court agreed.In an opinion filed April 3, 1990, the District Court denied all three post judgment motions. Yniguez v. Mofford, 130 F. R. D. 410. Certification was inappropriate, the District Court ruled, in light of the court's prior rejection of the Attorney General's narrow reading of Article XXVIII. See id., at 412. As to the Attorney General's intervention application, the District Court observed that § 2403(b) addresses only actions "'to which the State or any agency, officer, or employee thereof is not a party.'" See id., at 413 (quoting § 2403(b)). Yniguez's action did not fit the § 2403(b) de-57scription, the District Court said, because the State and its officers were the very defendants-the sole defendantsYniguez's complaint named. Governor Mofford remained a party throughout the District Court proceedings. If the State lost the opportunity to defend the constitutionality of Article XXVIII on appeal, the District Court reasoned, it was "only because Governor Mofford determine[d] that the state's sovereign interests would be best served by foregoing an appeal." Ibid.Turning to the AOE/Park intervention motion, the District Court observed first that the movants had failed to file a pleading "setting forth the[ir] claim or defense," as required by Rule 24(c). Ibid. But that deficiency was not critical, the District Court said. Ibid. The insurmountable hurdle was Article III standing. The labor and resources AOE spent to promote the ballot initiative did not suffice to establish standing to sue or defend in a federal tribunal, the District Court held. Id., at 414-415. Nor did Park or any other AOE member qualify for party status, the District Court ruled, for the interests of voters who favored the initiative were too general to meet traditional standing criteria. Id., at 415.In addition, the District Court was satisfied that AOE and Park could not tenably assert practical impairment of their interests stemming from the precedential force of the decision. As nonparticipants in the federal litigation, they would face no issue preclusion. And a lower federal-court judgment is not binding on state courts, the District Court noted. Thus, AOE and Park would not be precluded by the federal declaration from pursuing "any future state court proceeding [based on] Article XXVII!." Id., at 415-416.IIThe Ninth Circuit viewed the matter of standing to appeal differently. In an opinion released July 19, 1991, Yniguez v. Arizona, 939 F.2d 727, the Court of Appeals reached these58conclusions: AOE and Park met Article III requirements and could proceed as appellants; Arizona's Attorney General, however, having successfully moved in the District Court for his dismissal as a defendant, could not reenter as a party, but would be permitted to present argument regarding the constitutionality of Article XXVIII. Id., at 738-740. The Ninth Circuit reported it would retain jurisdiction over the District Court's decision on the merits, id., at 740, but did not then address the question whether Article XXVIII's meaning should be certified for definitive resolution by the Arizona Supreme Court.Concerning AOE's standing, the Court of Appeals reasoned that the Arizona Legislature would have standing to defend the constitutionality of a state statute; by analogy, the Ninth Circuit maintained, AOE, as principal sponsor of the ballot initiative, qualified to defend Article XXVIII on appeal. Id., at 732-733; see also id., at 734, n. 5 ("[WJe hold that AOE has standing in the same way that a legislature might."). AOE Chairman Park also had standing to appeal, according to the Ninth Circuit, because Yniguez "could have had a reasonable expectation that Park (and possibly AOE as well) would bring an enforcement action against her" under § 4 of Article XXVIII, which authorizes any person residing in Arizona to sue in state court to enforce the Article. Id., at 734, and n. 5.1111 In a remarkable passage, the Ninth Circuit addressed Yniguez's argument, opposing intervention by AOE and Park, that the District Court's judgment was no impediment to any state-court proceeding AOE and Park might wish to bring, because that judgment is not a binding precedent on Arizona's judiciary. See 939 F. 2d, at 735-736. The Court of Appeals questioned the wisdom of the view expressed "in the academic literature," "by some state courts," and by "several individual justices" that state courts are "coordinate and coequal with the lower federal courts on matters of federal law." Id., at 736 (footnote omitted). The Ninth Circuit acknowledged "there may be valid reasons not to bind the state courts to a decision of a single federal district judge-which is not even binding on the same judge in a subsequent action." Id., at 736-737. However, the appellate panel added, those reasons "are inapplicable to59Having allowed AOE and Park to serve as appellants, the Court of Appeals held Arizona's Attorney General "judicial[ly] estoppe[d]" from again appearing as a party. Id., at 738-739; see also id., at 740 ("[H]aving asked the district court to dismiss him as a party, [the Attorney General] cannot now become one again.").12 With Governor Mofford choosing not to seek Court of Appeals review, the appeal became one to which neither "[the] State [n]or any agency, officer, or employee thereof [was] a party," the Ninth Circuit observed, so the State's Attorney General could appear pursuant to 28 U. S. C. § 2403(b). See 939 F. 2d, at 739.13 But, the Ninth Circuit added, § 2403(b) "confers only a limited right," a right pendent to the AOE/Park appeal, "to make an argument on the question of [Article XXVIII's] constitutionality." Id., at 739-740.Prior to the Ninth Circuit's July 1991 opinion, indeed the very day after AOE, Park, and the Arizona Attorney General filed their notices of appeal, a development of prime importance occurred. On April 10, 1990, Yniguez resigned from state employment in order to accept another job. Her resig-decisions of the federal courts of appeals." Id., at 737. But cf. ASARCO Inc. v. Kadish, 490 U. S. 605, 617 (1989) ("state courts ... possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own interpretations of federal law"); Lockhart v. Fretwell, 506 U. S. 364, 375-376 (1993) (THOMAS, J., concurring) (Supremacy Clause does not require state courts to follow rulings by federal courts of appeals on questions of federal law).12 Because the Court of Appeals found AOE and Park to be proper appellants, that court did not "address the question whether the Attorney General would have standing to appeal under Article III if no other party were willing and able to appeal." 939 F. 2d, at 738. The Court of Appeals assumed, however, that "whenever the constitutionality of a provision of state law is called into question, the state government will have a sufficient interest [to satisfy] Article IlL" Id., at 733, n. 4. Cf. Maine v. Taylor, 477 U. S. 131, 137 (1986) (intervening State had standing to appeal from judgment holding state law unconstitutional); Diamond v. Charles, 476 U. S. 54, 62 (1986) ("a State has standing to defend the constitutionality of its statute").13 The full text of 28 U. S. C. § 2403(b) is set out supra, at 55, n. 10.60nation apparently became effective on April 25, 1990. Arizona's Attorney General so informed the Ninth Circuit in September 1991, "suggest[ing] that this case may lack a viable plaintiff and, hence, may be moot." Suggestion of Mootness in Nos. 90-15546 and 90-15581 (CA9), Affidavit and Exh. A.One year later, on September 16, 1992, the Ninth Circuit rejected the mootness suggestion. Yniguez v. Arizona, 975 F.2d 646. The court's ruling adopted in large part Yniguez's argument opposing a mootness disposition. See App. 194-204 (Appellee Yniguez's Response Regarding Mootness Considerations). "[T]he plaintiff may no longer be affected by the English only provision," the Court of Appeals acknowledged. 975 F. 2d, at 647. Nevertheless, the court continued, "[her] constitutional claims may entitle her to an award of nominal damages." Ibid. Her complaint did "not expressly request nominal damages," the Ninth Circuit noted, but "it did request 'all other relief that the Court deems just and proper under the circumstances.'" Id., at 647, n. 1; see supra, at 50-51. Thus, the Court of Appeals reasoned, one could regard the District Court's judgment as including an "implicit denial" of nominal damages. 975To permit Yniguez and AOE to clarify their positions, the Ninth Circuit determined to return the case to the District Court. There, with the Ninth Circuit's permission, AOE's Chairman Park could file a notice of appeal from the District Court's judgment, following up the Circuit's decision 14 months earlier allowing AOE and Park to intervene. Id., at 647.14 And next, Yniguez could cross-appeal to place before14 In their original notice of appeal, filed April 9, 1990, AOE and Park targeted the District Court's denial of their motion to intervene. See App. 150-151. Once granted intervention, their original notice indicated, they would be positioned to file an appeal from the judgment declaring Article XXVIII unconstitutional. See id., at 150.61the Ninth Circuit, explicitly, the issue of nominal damages. Id., at 647, and n. 2.15In line with the Ninth Circuit's instructions, the case file was returned to the District Court on November 5, 1992; AOE and Park filed their second notice of appeal on December 3, App. 206-208, and Yniguez cross-appealed on December 15, App. 209.16 The Ninth Circuit heard argument on the merits on May 3, 1994. After argument, on June 21, 1994, the Ninth Circuit allowed Arizonans Against Constitutional Tampering (AACT) and Thomas Espinosa, Chairman of AACT, to intervene as plaintiffs-appellees. App. 14; Yniguez v. Arizona, 42 F.3d 1217, 1223-1224 (1994) (amended Jan. 17, 1995). AACT was the principal opponent of the ballot initiative that became Article XXVIII. Id., at 1224. In permitting this late intervention, the Court of Appeals noted that "it d[id] not rely on [AACT's] standing as a party." Ibid. The standing of the preargument participants, in the Ninth Circuit's view, sufficed to support a determination on the merits. See ibid.In December 1994, the Ninth Circuit panel that had superintended the case since 1990 affirmed the judgment declaring Article XXVIII unconstitutional and remanded the case, directing the District Court to award Yniguez nominal dam-15 The Ninth Circuit made two further suggestions in the event that Yniguez failed to seek nominal damages: A new plaintiff "whose claim against the operation of the English only provision is not moot" might intervene; or Yniguez herself might have standing to remain a suitor if she could show that others had refrained from challenging the English-only provision in reliance on her suit. See 975 F. 2d, at 647-648. No state employee later intervened to substitute for Yniguez, nor did Yniguez endeavor to show that others had not sued because they had relied on her suit.16 On March 16, 1993, the District Court awarded Yniguez nearly $100,000 in attorney's fees. Record, Doc. No. 127. Governor Mofford and the State filed a notice of appeal from that award on April 8, 1993. Record, Doc. No. 128. Because the Ninth Circuit ultimately affirmed the District Court's judgment on the merits, the appeals court did not reach the state defendants' appeal from the award offees. 69 F. 3d, at 924, n. 2, 927.62ages. 42 F.3d 1217 (amended Jan. 17, 1995). Despite the Court of Appeals' July 1991 denial of party status to Arizona, the Ninth Circuit apparently viewed the State as the defendant responsible for any damages, for it noted: "The State of Arizona expressly waived its right to assert the Eleventh Amendment as a defense to the award of nominal damages." Id., at 1243. The Ninth Circuit agreed to rehear the case en banc, 53 F.3d 1084 (1995), and in October 1995, by a 6-to-5 vote, the en banc court reinstated the panel opinion with minor alterations. 69 F.3d 920.Adopting the District Court's construction of ArticleXXVIII, the en banc court read the provision to prohibit"'the use of any language other than English by all officers and employees of all political subdivisions in Arizona while performing their official duties, save to the extent that they may be allowed to use a foreign language by the limited exceptions contained in § 3(2) of Article XXVII!.'" 69 F. 3d, at 928 (quoting 730 F. Supp., at 314).Because the court found the "plain language" dispositive, 69 F. 3d, at 929, it rejected the State Attorney General's limiting construction and declined to certify the matter to the Arizona Supreme Court, id., at 929-931. As an additional reason for its refusal to grant the Attorney General's request for certification, the en banc court stated: "The Attorney General ... never conceded that [Article XXVIII] would be unconstitutional if construed as Yniguez asserts it properly should be." Id., at 931, and n. 14.17 The Ninth Circuit also pointed to a state-court challenge to the constitutionality of17The Court of Appeals contrasted Virginia v. American Booksellers Assn., Inc., 484 U. S. 383 (1988), in which this Court certified to the Virginia Supreme Court questions concerning the proper interpretation of a state statute. In American Booksellers, the Ninth Circuit noted, "the State Attorney General conceded [the statute] would be unconstitutional if construed as the plaintiffs contended it should be." 69 F. 3d, at 930.63Article XXVIII, Ruiz v. State, No. CV92-19603 (Sup. Ct. Maricopa County, Jan. 24, 1994). In Ruiz, the Ninth Circuit observed, the state court of first instance "dispos[ed] of [the] First Amendment challenge in three paragraphs" and "d[id] nothing to narrow [the provision]." 69 F. 3d, at 931.18After construing Article XXVIII as sweeping in scope, the en banc Court of Appeals condemned the provision as manifestly overbroad, trenching untenably on speech rights of Arizona officials and public employees. See id., at 931-948. For prevailing in the § 1983 action, the court ultimately announced, Yniguez was "entitled to nominal damages." Id., at 949. On remand, the District Court followed the en banc Court of Appeals' order and, on November 3, 1995, awarded Yniguez $1 in damages. App.211.AOE and Park petitioned this Court for a writ of certiorari to the Ninth Circuit.19 They raised two questions: (1) Does Article XXVIII violate the Free Speech Clause of the First18The Ruiz case included among its several plaintiffs four elected officials and five state employees. After defeat in the court of first instance, the Ruiz plaintiffs prevailed in the Arizona Court of Appeals. Ruiz v. Symington, No.1 CA-CV 94-0235,1996 WL 309512 (Ariz. App., June 11, 1996). That court noted, with evident concern, that "the Ninth Circuit refused to abstain and certify the question of Article [XXVIII]'s proper interpretation to the Arizona Supreme Court, although the issue was pending in our state court system." Id., at *4. "Comity," the Arizona intermediate appellate court observed, "typically applies when a federal court finds that deference to a state court, on an issue of state law, is proper." Ibid. Nevertheless, in the interest of uniformity and to discourage forum shopping, the Arizona appeals court decided to defer to the federal litigation, forgoing independent analysis. Ibid. The Arizona Supreme Court granted review in Ruiz in November 1996, and stayed proceedings pending our decision in this case. App. to Supplemental Brief for Petitioners 1.19 The State did not oppose the petition and, in its Appearance Form, filed in this Court on January 10, 1996, noted that "if the Court grants the Petition and reverses the lower court's decision ... Arizona will seek reversal of award of attorney's fees against the State." See supra, at 61, n. 16.64Amendment by "declaring English the official language of the State and requiring English to be used to perform official acts"?; (2) Do public employees have "a Free Speech right to disregard the [State's] official language" and perform official actions in a language other than English? This Court granted the petition and requested the parties to brief as threshold matters (1) the standing of AOE and Park to proceed in this action as defending parties, and (2) Yniguez's continuing satisfaction of the case-or-controversy requirement. 517 U. S. 1102 (1996).IIIArticle III, § 2, of the Constitution confines federal courts to the decision of "Cases" or "Controversies." Standing to sue or defend is an aspect of the case-or-controversy requirement. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656, 663-664 (1993) (standing to sue); Diamond v. Charles, 476 U. S. 54, 56 (1986) (standing to defend on appeal). To qualify as a party with standing to litigate, a person must show, first and foremost, "an invasion of a legally protected interest" that is "concrete and particularized" and" 'actual or imminent.'" Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U. S. 149, 155 (1990)). An interest shared generally with the public at large in the proper application of the Constitution and laws will not do. See Defenders of Wildlife, 504 U. S., at 573-576. Standing to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess "a direct stake in the outcome." Diamond, 476 U. S., at 62 (quoting Sierra Club v. Morton, 405 U. S. 727, 740 (1972) (internal quotation marks omitted)).The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance. Diamond, 476 U. S., at 62. The decision to seek review "is not to be placed in the65hands of 'concerned bystanders,'" persons who would seize it "as a 'vehicle for the vindication of value interests.'" Ibid. (citation omitted). An intervenor cannot step into the shoes of the original party unless the intervenor independently "fulfills the requirements of Article IlL" Id., at 68.In granting the petition for a writ of certiorari in this case, we called for briefing on the question whether AOE and Park have standing, consonant with Article III of the Federal Constitution, to defend in federal court the constitutionality of Arizona Constitution Article XXVIII. Petitioners argue primarily that, as initiative proponents, they have a quasilegislative interest in defending the constitutionality of the measure they successfully sponsored. AOE and Park stress the funds and effort they expended to achieve adoption of Article XXVIII. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests. See Karcher v. May, 484 U. S. 72, 82 (1987).20 AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article-Ill-qualified defenders of the measures they advocated. Cf. Don't Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U. S. 1077 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional).AOE also asserts representational or associational standing. An association has standing to sue or defend in such20 Cf. INS v. Chadha, 462 U. S. 919,930, n. 5,939-940 (1983) (Immigration and Naturalization Service appealed Court of Appeals ruling to this Court but declined to defend constitutionality of one-House veto provision; Court held Congress a proper party to defend measure's validity where both Houses, by resolution, had authorized intervention in the lawsuit).66capacity, however, only if its members would have standing in their own right. See Food and Commercial Workers v. Brown Group, Inc., 517 U. S. 544, 551-553 (1996); Hunt v. Washington State Apple Advertising Comm'n, 432 U. S. 333, 343 (1977). The requisite concrete injury to AOE members is not apparent. As nonparties in the District Court, AOE's members were not bound by the judgment for Yniguez. That judgment had slim precedential effect, see supra, at 58-59, n. 11,21 and it left AOE entirely free to invoke Article XXVIII, § 4, the citizen suit provision, in state court, where AOE could pursue whatever relief state law authorized. Nor do we discern anything flowing from Article XXVIII's citizen suit provision-which authorizes suits to enforce Article XXVIII in state court-that could support standing for Arizona residents in general, or AOE in particular, to defend the Article's constitutionality in federal court.We thus have grave doubts whether AOE and Park have standing under Article III to pursue appellate review. Nevertheless, we need not definitively resolve the issue. Rather, we will follow a path we have taken before and inquire, as a primary matter, whether originating plaintiff Yniguez still has a case to pursue. See Burke v. Barnes, 479 U. S. 361, 363, 364, n. (1987) (leaving unresolved question of congressional standing because Court determined case was moot). For purposes of that inquiry, we will assume, arguendo, that AOE and Park had standing to place this case before an appellate tribunal. See id., at 366 (STEVENS, J., dissenting) (Court properly assumed standing, even though that matter raised a serious question, in order to analyze mootness issue). We may resolve the question whether21 As the District Court observed, the stare decisis effect of that court's ruling was distinctly limited. The judgment was "not binding on the Arizona state courts [and did] not foreclose any rights of [AOE] or Park in any future state-court proceeding arising out of Article XXVII!." Yniguez v. Mofford, 130 F. R. D. 410, 416 (D. Ariz. 1990).67there remains a live case or controversy with respect to Yniguez's claim without first determining whether AOE or Park has standing to appeal because the former question, like the latter, goes to the Article III jurisdiction of this Court and the courts below, not to the merits of the case. Cf. U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 20-22 (1994).IVTo qualify as a case fit for federal-court adjudication, "an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Preiser v. Newkirk, 422 U. S. 395, 401 (1975) (quoting Steffel v. Thompson, 415 U. S. 452, 459, n. 10 (1974)) (internal quotation marks omitted). As a state employee subject to Article XXVIII, Yniguez had a viable claim at the outset of the litigation in late 1988. We need not consider whether her case lost vitality in January 1989 when the Attorney General released Opinion No. 189-009. That opinion construed Article XXVIII to require the expression of "official acts" in English, but to leave government employees free to use other languages "if reasonably necessary to the fair and effective delivery of services" to the public. See App. 71, 74; supra, at 52-53, 54; see also Marston's Inc. v. Roman Catholic Church of Phoenix, 132 Ariz. 90, 94, 644 P. 2d 244, 248 (1982) ("Attorney General opinions are advisory only and are not binding on the court .... This does not mean, however, that citizens may not rely in good faith on Attorney General opinions until the courts have spoken."). Yniguez left her state job in April 1990 to take up employment in the private sector, where her speech was not governed by Article XXVIII. At that point, it became plain that she lacked a still vital claim for prospective relief. Cf. Boyle v. Landry, 401 U. S. 77, 78, 80-81 (1971) (prospective relief denied where plaintiffs failed to show challenged measures adversely affected any plaintiff's primary conduct).68The Attorney General suggested mootness,22 but Yniguez resisted, and the Ninth Circuit adopted her proposed method of saving the case. See supra, at 60-61.23 It was not dispositive, the court said, that Yniguez "may no longer be affected by the English only provision," 975 F. 2d, at 647, for Yniguez had raised in response to the mootness suggestion "[t]he possibility that [she] may seek nominal damages," ibid.; see App. 197-200 (Appellee Yniguez's Response Regarding Mootness Considerations). At that stage of the litigation, however, Yniguez's plea for nominal damages was not the possibility the Ninth Circuit imagined.Yniguez's complaint rested on 42 U. S. C. § 1983. See supra, at 49-50, and n. 3. Although Governor Mofford in her official capacity was the sole defendant against whom the22 Mootness has been described as "'the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).''' United States Parole Comm'n v. Geraghty, 445 U. S. 388, 397 (1980) (quoting Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L. J. 1363, 1384 (1973)).23Yniguez's counsel did not inform the Court of Appeals of Yniguez's departure from government employment, a departure effective April 25, 1990, the day before the appeal was docketed. See App. 7. It was not until September 1991 that the State's Attorney General notified the Ninth Circuit of the plaintiff's changed circumstances. See id., at 187. Yniguez's counsel offered a laconic explanation for this lapse: First, "legal research disclosed that this case was not moot"; second, counsel for the State of Arizona knew of the resignation and "agreed this appeal should proceed." App. 196, n. 2 (Appellee Yniguez's Response Regarding Mootness Considerations). The explanation was unsatisfactory. It is the duty of counsel to bring to the federal tribunal's attention, "without delay," facts that may raise a question of mootness. See Board of License Comm'rs of Tiverton v. Pastore, 469 U. S. 238, 240 (1985) (per curiam). Nor is a change in circumstances bearing on the vitality of a case a matter opposing counsel may withhold from a federal court based on counsels' agreement that the case should proceed to judgment and not be treated as moot. See United States v. Alaska S. S. Co., 253 U. S. 113, 116 (1920); R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 721-722 (7th ed. 1993).69District Court's February 1990 declaratory judgment ran, see supra, at 55, the Ninth Circuit held the State answerable for the nominal damages Yniguez requested on appeal. See 69 F. 3d, at 948-949 (declaring Yniguez "entitled to nominal damages for prevailing in an action under 42 U. S. C. § 1983" and noting that "[t]he State of Arizona expressly waived its right to assert the Eleventh Amendment as a defense to the award of nominal damages"). We have held, however, that § 1983 actions do not lie against a State. Will v. Michigan Dept. of State Police, 491 U. S. 58, 71 (1989). Thus, the claim for relief the Ninth Circuit found sufficient to overcome mootness was nonexistent. The barrier was not, as the Ninth Circuit supposed, Eleventh Amendment immunity, which the State could waive. The stopper was that § 1983 creates no remedy against a State.24Furthermore, under the Ninth Circuit's ruling on intervention, the State of Arizona was permitted to participate in the appeal, but not as a party. 939 F. 3d, at 738-740. The Court of Appeals never revised that ruling. To recapitulate,24 State officers in their official capacities, like States themselves, are not amenable to suit for damages under § 1983. See Will v. Michigan Dept. of State Police, 491 U. S., at 71, and n. 10. State officers are subject to § 1983 liability for damages in their personal capacities, however, even when the conduct in question relates to their official duties. Hafer v. Melo, 502 U. S. 21, 25-31 (1991). At no point after the nominal damages solution to mootness surfaced in this case did the Ninth Circuit identify Governor Mofford as a party whose conduct could be the predicate for retrospective relief. That is hardly surprising, for Mofford never participated in any effort to enforce Article XXVIII against Yniguez. Moreover, she opposed the ballot initiative that became Article XXVIII, see supra, at 49, n. 1, associated herself with the Attorney General's restrained interpretation of the provision, see supra, at 52-53, and was unwilling to appeal from the District Court's judgment declaring the Article unconstitutional, see supra, at 56. In this Court, Yniguez raised the possibility of Governor Mofford's individual liability under the doctrine of Ex parte Young, 209 U. S. 123 (1908). See Brief for Respondent Yniguez 21-22. That doctrine, however, permits only prospective relief, not retrospective monetary awards. See Edelman v. Jordan, 415 U. S. 651, 664 (1974).70in July 1991, two months prior to the Attorney General's suggestion of mootness, the Court of Appeals rejected the Attorney General's plea for party status, as representative of the State. Ibid. The Ninth Circuit accorded the Attorney General the "right [under 28 U. S. C. § 2403(b)] to argue the constitutionality of Article XXVIII ... contingent upon AOE and Park's bringing the appeal." Id., at 740; see supra, at 59. But see Maine v. Taylor, 477 U. S. 131, 136-137 (1986) (State's § 2403(b) right to urge on appeal the constitutionality of its laws is not contingent on participation of other appellants). AOE and Park, however, were the sole participants recognized by the Ninth Circuit as defendants-appellants. The Attorney General "ha[d] asked the district court to dismiss him as a party," the Court of Appeals noted, hence he "cannot now become one again." 939 F. 2d, at 740. While we do not rule on the propriety of the Ninth Circuit's exclusion of the State as a party, we note this lapse in that court's accounting for its decision: The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nevertheless, to an obligation to pay damages.True, Yniguez and the Attorney General took the steps the Ninth Circuit prescribed: Yniguez filed a cross-appeal notice, see supra, at 61; the Attorney General waived the State's right to assert the Eleventh Amendment as a defense to an award of nominal damages, see 69 F. 3d, at 948-949. But the earlier, emphatic Court of Appeals ruling remained in place: The State's intervention, although proper under § 2403(b), the Ninth Circuit maintained, gave Arizona no status as a party in the lawsuit. See 939 F. 2d, at 738-740.2525 Section 2403(b) by its terms subjects an intervenor "to all liabilities of a party as to court costs" required "for a proper presentation of the facts and law relating to the question of constitutionality." 28 U. S. C. § 2403(b) (emphasis added). It does not subject an intervenor to liability for damages available against a party defendant.71In advancing cooperation between Yniguez and the Attorney General regarding the request for and agreement to pay nominal damages, the Ninth Circuit did not home in on the federal courts' lack of authority to act in friendly or feigned proceedings. Cf. United States v. Johnson, 319 U. S. 302, 304 (1943) (per curiam) (absent "a genuine adversary issue between ... parties," federal court "may not safely proceed to judgment"). It should have been clear to the Court of Appeals that a claim for nominal damages, extracted late in the day from Yniguez's general prayer for relief and asserted solely to avoid otherwise certain mootness, bore close inspection. Cf. Fox v. Board of Trustees of State Univ. of N. Y., 42 F.3d 135, 141-142 (CA2 1994) (rejecting claim for nominal damages proffered to save case from mootness years after litigation began where defendants could have asserted qualified immunity had plaintiffs' complaint specifically requested monetary relief). On such inspection, the Ninth Circuit might have perceived that Yniguez's plea for nominal damages could not genuinely revive the case.26When a civil case becomes moot pending appellate adjudication, "[t]he established practice ... in the federal system ... is to reverse or vacate the judgment below and remand with a direction to dismiss." United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). Vacatur "clears the path for future relitigation" by eliminating a judgment the loser was stopped from opposing on direct review. Id., at 40. Vacatur is in order when mootness occurs through happenstance-circumstances not attributable to the parties-or,26 Endeavoring to meet the live case requirement, petitioners AOE and Park posited in this Court several "controversies remaining between the parties." Reply Brief for Petitioners 18-19. Tellingly, none of the asserted controversies involved Yniguez, sole plaintiff and prevailing party in the District Court. See ibid. (describing AOE and Park as adverse to intervenor Arizonans Against Constitution Tampering (AACT), see supra, at 61, AACT as adverse to the State, AOE and Park as adverse to the State).72relevant here, the "unilateral action of the party who prevailed in the lower court." U. S. Bancorp Mortgage Co., 513 U. S., at 23; cf. id., at 29 ("mootness by reason of settlement [ordinarily] does not justify vacatur of a judgment under review").As just explained, Yniguez's changed circumstances-her resignation from public sector employment to pursue work in the private sector-mooted the case stated in her complaint.27 We turn next to the effect of that development on the judgments below. Yniguez urges that vacatur ought not occur here. She maintains that the State acquiesced in the Ninth Circuit's judgment and that, in any event, the District Court judgment should not be upset because it was entered before the mooting event occurred and was not properly appealed. See Brief for Respondent Yniguez 23-25.Concerning the Ninth Circuit's judgment, Yniguez argues that the State's Attorney General effectively acquiesced in that court's dispositions when he did not petition for this Court's review. See id., at 24-25; Brief for United States as Amicus Curiae 10-11, and n. 4 (citing Diamond v. Charles, 476 U. S. 54 (1986)).28 We do not agree that this Court is disarmed in the manner suggested.27 It bears repetition that Yniguez did not sue on behalf of a class. See supra, at 50; cf. Preiser v. Newkirk, 422 U. S. 395, 404 (1975) (Marshall, J., concurring) (mootness determination unavoidable where plaintiffrespondent's case lost vitality and action was not filed on behalf of a class); Sosna v. Iowa, 419 U. S. 393, 397-403 (1975) (recognizing class action exception to mootness doctrine).28 Designated a respondent in this Court, the State was not required or specifically invited to file a brief answering the AOE/Park petition. In his appearance form, filed January 10, 1996, Arizona's Attorney General made this much plain: The State-aligned with petitioners AOE and Park in that Arizona defended Article XXVIII's constitutionality-did not oppose certiorari; in the event Yniguez did not prevail here, Arizona would seek to recoup the attorney's fees the District Court had ordered the State to pay her. See supra, at 61, n. 16.73We have taken up the case for consideration on the petition for certiorari filed by AOE and Park. Even if we were to rule definitively that AOE and Park lack standing, we would have an obligation essentially to search the pleadings on core matters of federal-court adjudicatory authority-to inquire not only into this Court's authority to decide the questions petitioners present, but to consider, also, the authority of the lower courts to proceed. As explained in Bender v. Williamsport Area School Dist., 475 U. S. 534 (1986):"[E]very federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it. Mitchell v. Maurer, 293 U. S. 237, 244 (1934). See Juidice v. Vail, 430 U. S. 327, 331-332 (1977) (standing). 'And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it. [When the lower federal court] lack[s] jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.' United States v. Corrick, 298 U. S. 435, 440 (1936) (footnotes omitted)." Id., at 541 (brackets in original).See also Iron Arrow Honor Soc. v. Heckler, 464 U. S. 67, 72-73 (1983) (per curiam) (vacating judgment below where Court of Appeals had ruled on the merits although case had become moot). In short, we have authority to "make such disposition of the whole case as justice may require." U. S. Bancorp Mortgage Co., 513 U. S., at 21 (citation and internal quotation marks omitted). Because the Ninth Circuit refused to stop the adjudication when Yniguez's departure from public employment came to its attention, we set aside the unwarranted en banc Court of Appeals judgment.74As to the District Court's judgment, Yniguez stresses that the date of the mooting event-her resignation from state employment effective April 25, 1990-was some 2lh months after the February 6, 1990, decision she seeks to preserve. Governor Mofford was the sole defendant bound by the District Court judgment, and Mofford declined to appeal. Therefore, Yniguez contends, the District Court's judgment should remain untouched.But AOE and Park had an arguable basis for seeking appellate review, and the Attorney General promptly made known his independent interest in defending Article XXVIII against the total demolition declared by the District Court. First, the Attorney General repeated his plea for certification of Article XXVIII to the Arizona Supreme Court. See Record, Doc. No. 82. And if that plea failed, he asked, in his motion to intervene, "to be joined as a defendant so that he may participate in all post-judgment proceedings." Record, Doc. No. 93, p. 2. Although denied party status, the Attorney General had, at a minimum, a right secured by Congress, a right to present argument on appeal "on the question of constitutionality." See 28 U. S. C. § 2403(b). He was in the process of pursuing that right when the mooting event occurred.We have already recounted the course of proceedings thereafter. First, Yniguez did not tell the Court of Appeals that she had left the State's employ. See supra, at 68, n. 23. When that fact was disclosed to the court by the Attorney General, a dismissal for mootness was suggested, and rejected. A mootness disposition at that point was in order, we have just explained. Such a dismissal would have stopped in midstream the Attorney General's endeavor, premised on § 2403(b), to defend the State's law against a declaration of unconstitutionality, and so would have warranted a path-clearing vacatur decree.The State urges that its current plea for vacatur is compelling in view of the extraordinary course of this litigation.75See Brief for Respondents State of Arizona et al. 34 ("It would certainly be a strange doctrine that would permit a plaintiff to obtain a favorable judgment, take voluntary action [that] moot[s] the dispute, and then retain the [benefit of the] judgment."). We agree. The "exceptional circumstances" that abound in this case, see U. S. Bancorp M ortgage Co., 513 U. S., at 29, and the federalism concern we next consider, lead us to conclude that vacatur down the line is the equitable solution.vIn litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary? 29 When anticipatory relief is sought in federal court against a state statute, respect for the place of the States in our federal system calls for close consideration of that core question. See, e. g., Poe v. Ullman, 367 U. S. 497, 526 (1961) (Harlan, J., dissenting) ("[N]ormally this Court ought not to consider the Constitutionality of a state statute in the absence of a controlling interpretation of its meaning and effect by the state courts."); Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549, 573-574 (1947); Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev. 543, 580-585 (1985).Arizona's Attorney General, in addition to releasing his own opinion on the meaning of Article XXVIII, see supra, at 52, asked both the District Court and the Court of Appeals to pause before proceeding to judgment; specifically, he asked both federal courts to seek, through the State's certification process, an authoritative construction of the new measure from the Arizona Supreme Court. See supra, at 51, and n. 5, 55, 62-63, and nn. 17, 18.Certification today covers territory once dominated by a deferral device called "Pullman abstention," after the gen-29 The phrasing is borrowed from Traynor, Is This Conflict Really Necessary?, 37 Texas L. Rev. 657 (1959).76erative case, Railroad Comm'n of Tex. v. Pullman Co., 312 U. S. 496 (1941). Designed to avoid federal-court error in deciding state-law questions antecedent to federal constitutional issues, the Pullman mechanism remitted parties to the state courts for adjudication of the unsettled state-law issues. If settlement of the state-law question did not prove dispositive of the case, the parties could return to the federal court for decision of the federal issues. Attractive in theory because it placed state-law questions in courts equipped to rule authoritatively on them, Pullman abstention proved protracted and expensive in practice, for it entailed a full round of litigation in the state court system before any resumption of proceedings in federal court. See generally 17 A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §§ 4242, 4243 (2d ed. 1988 and Supp. 1996).Certification procedure, in contrast, allows a federal court faced with a novel state-law question to put the question directly to the State's highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response. See Note, Federal Courts-Certification Before Facial Invalidation: A Return to Federalism, 12 W. New Eng. L. Rev. 217 (1990). Most States have adopted certification procedures. See generally 17 A Wright, Miller, & Cooper, supra, § 4248. Arizona's statute, set out supra, at 51, n. 5, permits the State's highest court to consider questions certified to it by federal district courts, as well as courts of appeals and this Court.Both lower federal courts in this case refused to invite the aid of the Arizona Supreme Court because they found the language of Article XXVIII "plain," and the Attorney General's limiting construction unpersuasive. See 730 F. Supp., at 315-316; 69 F. 3d, at 928-931.30 Furthermore, the Ninth30 But cf. Huggins v. Isenbarger, 798 F.2d 203, 207-210 (CA71986) (Easterbrook, J., concurring) (reasoned opinion of State Attorney General should be accorded respectful consideration; federal courts should hesitate77Circuit suggested as a proper price for certification a concession by the Attorney General that Article XXVIII "would be unconstitutional if construed as [plaintiff Yniguez] contended it should be." Id., at 930; see id., at 931, and n. 14. Finally, the Ninth Circuit acknowledged the pendency of a case similar to Yniguez's in the Arizona court system, but found that litigation no cause for a stay of the federal-court proceedings. See id., at 931; supra, at 62-63, and n. 18 (describing the Ruiz litigation).A more cautious approach was in order. Through certification of novel or unsettled questions of state law for authoritative answers by a State's highest court, a federal court may save "time, energy, and resources and hel[p] build a cooperative judicial federalism." Lehman Brothers v. Schein, 416 U. S. 386, 391 (1974); see also Bellotti v. Baird, 428 U. S. 132, 148 (1976) (to warrant district court certification, "[i]t is sufficient that the statute is susceptible of ... an interpretation [that] would avoid or substantially modify the federal constitutional challenge to the statute"). It is true, as the Ninth Circuit observed, 69 F. 3d, at 930, that in our decision certifying questions in Virginia v. American Booksellers Assn., Inc., 484 U. S. 383 (1988), we noted the State's concession that the statute there challenged would be unconstitutional if construed as plaintiffs contended it should be, id., at 393-396. But neither in that case nor in any other did we declare such a concession a condition precedent to certification.The District Court and the Court of Appeals ruled out certification primarily because they believed Article XXVIII was not fairly subject to a limiting construction. See 730 F. Supp., at 316 (citing Houston v. Hill, 482 U. S. 451, 467 (1987)); 69 F. 3d, at 930. The assurance with which the lower courts reached that judgment is all the more puzzlingto conclude that "[a State's] Executive Branch does not understand state law").78in view of the position the initiative sponsors advanced before this Court on the meaning of Article XXVIII.At oral argument on December 4, 1996, counsel for petitioners AOE and Park informed the Court that, in petitioners' view, the Attorney General's reading of the Article was "the correct interpretation." Tr. of Oral Arg. 6; see id., at 5 (in response to the Court's inquiry, counsel for petitioners stated: "[W]e agree with the Attorney General's opinion as to [the] construction of Article XXVIII on [constitutional] grounds."). The Ninth Circuit found AOE's "explanations as to the initiative's scope ... confused and selfcontradictory," 69 F. 3d, at 928, n. 12, and we agree that AOE wavered in its statements of position, see, e. g., Brief for Petitioners 15 (AOE may "protect its political and statutory rights against the State and government employees"), 32-39 (Article XXVIII regulates Yniguez's "language on the job"), 44 ("AOE might ... sue the State for limiting Art. XXVIII"). Nevertheless, the Court of Appeals understood that the ballot initiative proponents themselves at least "partially endorsed the Attorney General's reading." 69 F. 3d, at 928, n. 12. Given the novelty of the question and its potential importance to the conduct of Arizona's business, plus the views of the Attorney General and those of Article XXVIII's sponsors, the certification requests merited more respectful consideration than they received in the proceedings below.Federal courts, when confronting a challenge to the constitutionality of a federal statute, follow a "cardinal principle":They "will first ascertain whether a construction ... is fairly possible" that will contain the statute within constitutional bounds. See Ashwander v. TV A, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring); Ellis v. Railway Clerks, 466 U. S. 435,444 (1984); Califano v. Yamasaki, 442 U. S. 682, 692-693 (1979); Rescue Army, 331 U. S., at 568-569. State courts, when interpreting state statutes, are similarly equipped to apply that cardinal principle. See Knoell v. Cerkvenik-79Anderson Travel, Inc., 185 Ariz. 546, 548, 917 P. 2d 689, 691 (1996) (citing Ashwander).Warnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State's law, for the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest court. See Rescue Army, 331 U. S., at 573-574. "Speculation by a federal court about the meaning of a state statute in the absence of prior state court adjudication is particularly gratuitous when ... the state courts stand willing to address questions of state law on certification from a federal court." Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 510 (1985) (O'CONNOR, J., concurring).Blending abstention with certification, the Ninth Circuit found "no unique circumstances in this case militating in favor of certification." 69 F. 3d, at 931. Novel, unsettled questions of state law, however, not "unique circumstances," are necessary before federal courts may avail themselves of state certification procedures.31 Those procedures do not entail the delays, expense, and procedural complexity that generally attend abstention decisions. See supra, at 76. Taking advantage of certification made available by a State may "greatly simplif[y]" an ultimate adjudication in federal court. See Bellotti, 428 U. S., at 151.The course of Yniguez's case was complex. The complexity might have been avoided had the District Court, more than eight years ago, accepted the certification suggestion made by Arizona's Attorney General. The Arizona Supreme Court was not asked by the District Court or the Court of Appeals to say what Article XXVIII means. But the State's highest court has that very question before it in31 Arizona itself requires no "unique circumstances." It permits certification to the State's highest court of matters "which may be determinative of the cause," and as to which "no controlling precedent" is apparent to the certifying court. Ariz. Rev. Stat. Ann. § 12-1861 (1994).80Ruiz v. Symington, see supra, at 62-63, and n. 18, the case the Ninth Circuit considered no cause for federal-court hesitation. In Ruiz, which has been stayed pending our decision in this case, see supra, at 63, n. 18, the Arizona Supreme Court may now rule definitively on the proper construction of Article XXVIII. Once that court has spoken, adjudication of any remaining federal constitutional question may indeed become greatly simplified.***For the reasons stated, the judgment of the Court of Appeals is vacated, and the case is remanded to that court with directions that the action be dismissed by the District Court.It is so ordered

OCTOBER TERM, 1996SyllabusARIZONANS FOR OFFICIAL ENGLISH ET AL. v.ARIZONA ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 95-974. Argued December 4, 1996-Decided March 3,1997Maria-Kelly F. Yniguez, an Arizona state employee at the time, sued the State and its Governor, Attorney General, and Director of the Department of Administration under 42 U. S. C. § 1983, alleging that State Constitution Article XXVIII-key provisions of which declare English "the official language of the State," require the State to "act in English and in no other language," and authorize state residents and businesses "to bring [state-court] suitEs] to enforce thEe] Article"-violated, inter alia, the Free Speech Clause of the First Amendment. Yniguez used both English and Spanish in her work and feared that Article XXVIII, if read broadly, would require her to face discharge or other discipline if she did not refrain from speaking Spanish while serving the State. She requested injunctive and declaratory relief, counsel fees, and "all other relief that the Court deems just and proper." During the early phases of the suit, the State Attorney General released an opinion expressing his view that Article XXVIII is constitutional in that, although it requires the expression of "official acts" in English, it allows government employees to use other languages to facilitate the delivery of governmental services. The Federal District Court heard testimony and, among its rulings, determined that only the Governor, in her official capacity, was a proper defendant. The court, at the same time, dismissed the State because of its Eleventh Amendment immunity, the State Attorney General because he had no authority to enforce Article XXVIII against state employees, and the Director because there was no showing that she had undertaken or threatened any action adverse to Yniguez; rejected the Attorney General's interpretation of the Article on the ground that it conflicted with the measure's plain language; declared the Article fatally overbroad after reading it to impose a sweeping ban on the use of any language other than English by all of Arizona officialdom; and declined to allow the Arizona courts the initial opportunity to determine the scope of Article XXVIII. Following the Governor's announcement that she would not appeal, the District Court denied the State Attorney General's request to certify the pivotal statelaw question-the Article's correct construction-to the Arizona Supreme Court. The District Court also denied the State Attorney Gen-44eral's motion to intervene on behalf of the State, under 28 U. S. C. § 2403(b), to contest on appeal the court's holding that the Article is unconstitutional. In addition, the court denied the motion of newcomers Arizonans for Official English Committee (AOE) and its Chairman Park, sponsors of the ballot initiative that became Article XXVIII, to intervene to support the Article's constitutionality. The day after AOE, Park, and the State Attorney General filed their notices of appeal, Yniguez resigned from state employment to accept a job in the private sector. The Ninth Circuit then concluded that AOE and Park met standing requirements under Article III of the Federal Constitution and could proceed as party appellants, and that the Attorney General, having successfully obtained dismissal below, could not reenter as a party, but could present an argument, pursuant to § 2403(b), regarding the constitutionality of Article XXVIII. Thereafter, the State Attorney General informed the Ninth Circuit of Yniguez's resignation and suggested that, for lack of a viable plaintiff, the case was moot. The court disagreed, holding that a plea for nominal damages could be read into the complaint's "all other relief" clause to save the case. The en banc Ninth Circuit ultimately affirmed the District Court's ruling that Article XXVIII was unconstitutional, and announced that Yniguez was entitled to nominal damages from the State. Finding the Article's "plain language" dispositive, and noting that the State Attorney General had never conceded that the Article would be unconstitutional if construed as Yniguez asserted it should be, the Court of Appeals also rejected the Attorney General's limiting construction of the Article and declined to certify the matter to the State Supreme Court. Finally, the Ninth Circuit acknowledged a state-court challenge to Article XXVIII's constitutionality, Ruiz v. State, but found that litigation no cause to stay the federal proceedings.Held: Because the case was moot and should not have been retained for adjudication on the merits, the Court vacates the Ninth Circuit's judgment and remands the case with directions that the action be dismissed by the District Court. This Court expresses no view on the correct interpretation of Article XXVIII or on the measure's constitutionality. Pp.64-80.(a) Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article Ill's case-or-controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess "a direct stake in the outcome." Diamond v. Charles, 476 U. S. 54, 62. Petitioners' primary argument-that, as initiative proponents, they have a quasi-legislative45Full Text of Opinion

1993_92-97

Transportation's regulatory authority regarding the federal aviation laws. In view of the Department's authority, there is no cause for courts to offer a substitute for conventional public utility regulation. While the AAIA directly addresses the use of airport revenues, the Airlines do not suggest that the Airport has misused the funds in violation of that Act and did not seek review of the lower courts' ruling that they had no AAIA cause of action. Finally, the record in this case does not support the Airlines' argument that the lower general aviation fees discriminate against interstate commerce and travel. There is no proof that the large and diverse general aviation population served by the Airport travels typically intrastate and seldom ventures beyond Michigan's borders. Pp. 369-373.3. The fees do not violate the "dormant" Commerce Clause. Even if the AHTA's express permission for States' imposition of reasonable fees were insufficiently clear to rule out dormant Commerce Clause analysis, the Court has already found the challenged fees reasonable under the AHTA using a standard taken directly from the Court's dormant Commerce Clause jurisprudence. Pp.373-374.955 F.2d 1054, affirmed.GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. THOMAS, J., filed a dissenting opinion, post, p. 374. BLACKMUN, J., took no part in the consideration or decision of the case.Walter A. Smith, Jr., argued the cause for petitioners.With him on the briefs was Jonathan S. Franklin.William F. Hunting, Jr., argued the cause for respondents. With him on the brief were Mark S. Allard, Robert A. Buchanan, and Michael M. Conway.Edward C. DuMont argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Wallace, William Kanter, Christine N. Kohl, Paul M. Geier, and Dale C. Andrews. **Briefs of amici curiae urging reversal were filed for the Air Transport Association of America by Mary E. Downs; for Thrifty Rent-A-Car System, Inc., by Randall J. Holder and Nancy Glisan Gourley; and for the358JUSTICE GINSBURG delivered the opinion of the Court. Seven commercial airlines, petitioners in this case, assert that certain airport user fees charged to them are unreasonable and discriminatory, in violation of the federal Anti-Head Tax Act (AHTA), 49 U. S. C. App. § 1513, and the Commerce Clause. Because the record, as it now stands, does not warrant a judicial determination that the fees in question are unreasonable or unlawfully discriminatory, we affirm the judgment of the Court of Appeals.I AThe user fees contested in this case are charged by the Kent County International Airport in Grand Rapids, Michigan. The Airport is owned by respondent Kent County and operated by respondents Kent County Board of Aeronautics and Kent County Department of Aeronautics (collectively,American Trucking Associations, Inc., by Andrew L. Frey, Andrew J. Pincus, Daniel R. Barney, and Robert Digges, Jr.Briefs of amici curiae urging affirmance were filed for the State of New Hampshire et al. by Jeffrey R. Howard, Attorney General of New Hampshire, and Monica A. Ciolfi, Assistant Attorney General, Grant Woods, Attorney General of Arizona, Daniel E. Lungren, Attorney General of California, Robert A. Butterworth, Attorney General of Florida, Bonnie J. Campbell, Attorney General of Iowa, Michael E. Carpenter, Attorney General of Maine, Frank J. Kelley, Attorney General of Michigan, Joseph P. Mazurek, Attorney General of Montana, Frederick P. DeVesa, Acting Attorney General of New Jersey, Heidi Heitkamp, Attorney General of North Dakota, Mark Barnett, Attorney General of South Dakota, and James E. Doyle, Attorney General of Wisconsin; for the City of Los Angeles by James K. Hahn, Gary R. Netzer, Breton K. Lobner, Steven S. Rosenthal, and Anthony L. Press; for the Aircraft Owners and Pilots Association by John S. Yodice; for the Airports Council International-North America by Patricia A. Hahn; for the American Association of Airport Executives by Scott P. Lewis; for the National Business Aircraft Association, Inc., et al. by Raymond J. Rasenberger; and for the U. S. Conference of Mayors et al. by Richard Ruda.359the Airport). Petitioners are seven commercial airlines serving the Airport (the Airlines).The Airport collects rent and fees from three groups of users: (1) commercial airlines, including petitioners; (2) "general aviation," i. e., corporate and privately owned aircraft not used for commercial, passenger, cargo, or military service; and (3) nonaeronautical concessionaires, including car rental agencies, the parking lot, restaurants, gift shops, "rent-a-cart" facilities, and other small vendors. Since 1968, the Airport has allocated its costs and set charges to aircraft operators pursuant to a "cost of service" accounting system known as the "Buckley methodology." 1 This system is designed to charge the Airlines only for the cost of providing the particular facilities and services they use.2Under its accounting system, the Airport first determines the costs of operating the airfield and the passenger terminal, and allocates these costs among the users of the facilities. Costs associated with airfield operations (e. g., maintaining the runways and navigational facilities) are allocated to the Airlines and general aviation in proportion to their use of the airfield. No portion of these costs is allocated to the concessions. Costs associated with maintaining the airport terminal are allocated among the terminal tenantsthe Airlines and the concessions-in proportion to each tenant's square footage.3The Airport then establishes fees and rates for each user group. It charges the Airlines 100% of the costs allocated to them, in the form of aircraft landing and parking fees (for use of the airfield), and rent (for the terminal space the Air-1 See James C. Buckley, Rental Fee Recommendations (Feb. 1969), App. 223-275.2 In contrast, "residual cost" accounting systems base rates and fees on the total cost of operating the airport. See Brief for City of Los Angeles as Amicus Curiae 5.3 The parking lot is owned and operated by the Airport itself and is not material to this dispute.360lines occupy).4 General aviation, however, is charged at a lower rate. The Airport recovers from that user group a per gallon fuel flowage fee for local aircraft and a landing fee for aircraft based elsewhere. These fees account for only 20% of the airfield costs allocated to general aviation.In relation to costs, the Airport thus "undercharges" general aviation. At the same time, measured by allocated costs, the Airport vastly "overcharges" the concessions. The Airlines pay a cost-based per square foot rate for their terminal space. The concessions, however, pay market rates for their space.5 Market rates substantially exceed the concessions' allocated costs and yield a sizable surplus.6 The surplus offsets the general aviation shortfall of approximately $525,000 per year, and has swelled the Airport's reserve fund by more than $1 million per year.BU sing the "Buckley methodology" just described, the Airlines and the Airport periodically negotiated and agreed upon fees to be charged through December 31, 1986. Following a new rate study made in 1986, the Airport proposed increased fees beginning January 1, 1987. App. 193 (Plaintiffs' Exh. 6). The Airlines objected to the higher fees and failed to reach an agreement with the Airport. Ultimately, the County Board of Aeronautics adopted an ordinance unilaterally increasing the fees.7 On the effective date of4 The Airlines are also charged for the cost of providing "crash, fire, and rescue" services, and amortization fees for assets acquired by the Airport. 5 Most concessions pay 10% of their gross receipts as rent for space.6 For example, the Airport's annual net revenues from 1987 to 1989 ranged from approximately $1.6 million to $1.9 million. App. 278-279 (Plaintiffs' Exhs. 301 and 355).7 The ordinance increased aircraft landing fees by $.20 per thousand pounds, and increased terminal rent charges by $6.67 per square foot for prime heated and air-conditioned space, $.59 per square foot for nonprime air-conditioned space, and $1.84 per square foot for nonprime, heated, nonair-conditioned space. The ordinance also decreased aircraft parking fees by $.12 per thousand pounds. 738 F. Supp. 1112, 1115 (WD Mich. 1990).361the ordinance, April 1, 1988, the Airlines sued the Airport, primarily challenging post-December 31, 1986, rates. The Airlines attacked (1) the Airport's failure to allocate to the concessions a portion of the airfield costs, (2) the surplus generated by the Airport's fee structure, and (3) the Airport's failure to charge general aviation 100% of its allocated airfield costs. These features, the Airlines alleged, made the fees imposed on them unreasonable and thus unlawful under the AHTA, as added, 87 Stat. 90, and as amended, 49 U. S. C. App. § 1513, and the Airport and Airway Improvement Act of 1982 (AAIA), 96 Stat. 686, as amended, 49 U. S. C. App. § 2210. The Airlines also asserted that the Airport's treatment of general aviation discriminates against interstate commerce in favor of primarily local traffic, in violation of the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3.The parties filed cross-motions for summary judgment.In the first of three opinions, the District Court denied the motions, holding that the Airport's cost methodology is not per se unreasonable. App. to Pet. for Cert. 57. In its second opinion, the District Court held that the Airlines have an implied right of action to challenge the fees under the AHTA but not under the AAIA, and that the Airlines have no cause of action under the Commerce Clause. Id., at 4246. Following a bench trial, the District Court issued its third and final opinion, concluding that the challenged fees are not unreasonable under the AHTA. 738 F. Supp. 1112 (WD Mich. 1990).The Court of Appeals for the Sixth Circuit affirmed the District Court's judgment in principal part. 955 F.2d 1054 (1992). In accord with the District Court, the Court of Appeals held that the AHTA impliedly confers a private right of action on the Airlines, but the AAIA does not. Id., at 1058. On the merits, the Court of Appeals (1) upheld as reasonable under the AHTA the bulk of the charges that the Airport imposes on the Airlines, and (2) rejected the Air-362lines' dormant Commerce Clause claim on the ground that the AHTA regulates the area. Id., at 1060-1064.On one matter, however, the Court of Appeals reversed the District Court's judgment and remanded the case. The District Court had upheld as reasonable under the AHTA the Airport's decision to allocate to the Airlines 100% of the costs of providing "crash, fire, and rescue" (CFR) services. 738 F. Supp., at 1119. Emphasizing that the CFR facilities service all aircraft, not just the Airlines, the Court of Appeals held that the Airport must allocate CFR costs between the Airlines and general aviation. 955 F. 2d, at 1062-1063, 1064.Petitioning for this Court's review, the Airlines challenged the Court of Appeals' adverse rulings on the AHTA and Commerce Clause issues. The Airport did not crosspetition for review of the Sixth Circuit's judgment to the extent that it favored the Airlines; specifically, the Airport did not petition for review of the remand to the District Court for allocation of the costs of CFR services between the Airlines and general aviation. We granted certiorari, 508 U. S. 959 (1993), to resolve a conflict between the decision under review and a decision of the Court of Appeals for the Seventh Circuit, Indianapolis Airport Authority v. American Airlines, Inc., 733 F.2d 1262 (1984), which declared key parts of a similar fee structure unreasonable under the AHTA.II AIn Evansville- Vanderburgh Airport Authority Dist. v.Delta Airlines, Inc., 405 U. S. 707 (1972), this Court held that the Commerce Clause does not prohibit States or municipalities from charging commercial airlines a "head tax" on passengers boarding flights at airports within the jurisdiction, to defray the costs of airport construction and maintenance. We stated in Evansville: "At least so long as the toll is based363on some fair approximation of use or privilege for use, ... and is neither discriminatory against interstate commerce nor excessive in comparison with the governmental benefit conferred, it will pass constitutional muster, even though some other formula might reflect more exactly the relative use of the state facilities by individual users." Id., at 716-717.Concerned that our decision in Evansville might prompt a proliferation of local taxes burdensome to interstate air transportation, Congress enacted the AHTA. See Aloha Airlines, Inc. v. Director of Taxation of Haw., 464 U. S. 7, 9-10 (1983) (summarizing history of AHTA's enactment); S. Rep. No. 93-12, p. 4 (1973) (Congress intended AHTA to "ensure ... that local 'head' taxes will not be permitted to inhibit the flow of interstate commerce."); id., at 17 ("The head tax ... cuts against the grain of the traditional American right to travel among the States.").The AHTA provides in pertinent part:"(a) Prohibition; exemption"No State (or political subdivision thereof ... ) shall levy or collect a tax, fee, head charge, or other charge, directly or indirectly, on persons traveling in air commerce or on the carriage of persons traveling in air commerce or on the sale of air transportation or on the gross receipts derived therefrom ...."(b) Permissible State taxes and fees"[NJothing in this section shall prohibit a State (or political subdivision thereof ... ) from the levy or collection of taxes other than those enumerated in subsection (a) of this section, including property taxes, net income taxes, franchise taxes, and sales or use taxes on the sale of goods or services; and nothing in this section shall prohibit a State (or political subdivision thereof ... ) owning or operating an airport from levying or collecting reasonable rental charges, landing fees, and other364service charges from aircraft operators for the use of airport facilities." 49 U. S. C. App. § 1513.Primarily, the Airlines urge that the Airport's fees overcharge them in violation of the AHTA. Before reaching that issue, however, we face a threshold question. The United States as amicus curiae and, less strenuously, the Airport, urge that the Airlines have no right to enforce the AHTA through a private action commenced in a federal court of first instance. Instead, they maintain, complaints under the AHTA must be pursued initially in administrative proceedings before the Secretary of Transportation, subject to judicial review in the courts of appeals.The threshold question is substantial: If Congress intended no right of immediate access to a federal court under the AHTA, then the Airlines' AHTA claim should have been dismissed, not adjudicated on the merits as it was, indeed in part favorably to the Airlines. However, the Airport filed no cross-petition for certiorari seeking to upset the judgment to the extent that it rejected the Airport's CFR cost allocation (100% to the Airlines) as inconsonant with the AHTA. For that reason, we decline to resolve the private right of action question in this case.A prevailing party need not cross-petition to defend a judgment on any ground properly raised below, so long as that party seeks to preserve, and not to change, the judgment. See, e. g., Thigpen v. Roberts, 468 U. S. 27, 29-30 (1984). A cross-petition is required, however, when the respondent seeks to alter the judgment below. See, e. g., Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 119, n. 14 (1985); United States v. New York Telephone Co., 434 U. S. 159, 166, n. 8 (1977); Federal Energy Administration v. Algonquin SNG, Inc., 426 U. S. 548, 560, n. 11 (1976); United States v. ITT Continental Baking Co., 420 U. S. 223, 226-227, n. 2 (1975). Alteration would be in order if the private right of action question were resolved in favor of the Airport. For then, the entire judgment would be undone, including365the portion remanding for reallocation of CFR costs between the Airlines and general aviation. The Airport's failure to file a cross-petition on the CFR issue-the issue on which it was a judgment loser-thus leads us to resist the plea to declare the AHTA claim unfit for District Court adjudication.8The question whether a federal statute creates a claim for relief is not jurisdictional. See Air Courier Conference v. Postal Workers, 498 U. S. 517, 523, n. 3 (1991); Burks v. Lasker, 441 U. S. 471, 476, n. 5 (1979); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 278-279 (1977); Bell v. Hood, 327 U. S. 678, 682 (1946). Accordingly, we shall assume, solely for purposes of this case, that the alleged AHTA private right of action exists.BThe AHTA prohibits States and their subdivisions from levying a "fee" or "other charge" "directly or indirectly" on "persons traveling in air commerce or on the carriage of persons traveling in air commerce." 49 U. S. C. § 1513(a). Landing fees, terminal charges, and other airport user fees of the sort here challenged fit § 1513(a)'s description. As we confirmed in an opinion invalidating a state tax on airlines' gross receipts, § 1513(a)'s compass is not limited to direct "head" taxes. Aloha Airlines, 464 U. S., at 12-13.But § 1513(a) does not stand alone. That subsection's prohibition is immediately modified by § 1513(b)'s permission. See Wardair Canada Inc. v. Florida Dept. of Revenue, 4778 Berkemer v. McCarty, 468 U. S. 420, 435, n. 23 (1984), is not to the contrary. There the Court of Appeals had reversed the respondent's criminal conviction, holding postarrest incriminating statements inadmissible under Miranda v. Arizona, 384 U. S. 436 (1966). Because he prevailed in the Court of Appeals, obtaining a judgment entirely in his favor, respondent could not have filed a cross-petition. Accordingly, his contention that certain pre arrest statements (whose admissibility the Court of Appeals had left ambiguous) were inadmissible was a permissible argument in defense of the judgment below.366u. S. 1, 15-16 (1986) (Burger, C. J., concurring in part and concurring in judgment) (§ 1513(b)'s saving clause was enacted in response to the States' concern that § 1513(a)'s "sweeping provision would prohibit even unobjectionable taxes such as landing fees ... "). Sections 1513(a) and (b) together instruct that airport user fees are permissible only if, and to the extent that, they fall within § 1513(b)'s saving clause, which removes from § 1513(a)'s ban "reasonable rental charges, landing fees, and other service charges from aircraft operators for the use of airport facilities." 9While § 1513(b) allows only "reasonable rental charges, landing fees, and other service charges," the AHTA does not set standards for assessing reasonableness. Courts, we recognize, are scarcely equipped to oversee, without the initial superintendence of a regulatory agency, rate structures and practices. See Colorado Interstate Gas Co. v. FPC, 324 U. S. 581, 589 (1945) ("Rate-making is essentially a legislative function."); cf. Far East Conference v. United States, 342 U. S. 570, 574 (1952) ("in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over").10 The Secretary of Transportation is9 The Airport's argument, accepted by the dissent, that user fees are entirely outside the scope of the AHTA because they are not "head" taxes, advances an untenable reading of the statute. We note, in this regard, § 1513(b)'s recognition, in its first clause, of "taxes other than those enumerated in subsection (a) of this section, including property taxes, net income taxes, franchise taxes, and sales or use taxes on the sale of goods or services" (emphasis added). Unlike the property and income taxes listed in the first clause of § 1513(b), the airport user fees listed in § 1513(b)'s second clause are not described as taxes "other than those enumerated in subsection (a)." The statute, in sum, is hardly ambiguous on this matter: User fees are covered by § 1513(a), but may be saved by § 1513(b).10 The reasonableness of the Airport's rates might have been referred, prior to any court's consideration, to the Department of Transportation under the primary jurisdiction doctrine. That doctrine is "specifically ap-367charged with administering the federal aviation laws, including the AHTA.ll His Department is equipped, as courts are not, to survey the field nationwide, and to regulate based on a full view of the relevant facts and circumstances. If we had the benefit of the Secretary's reasoned decision concerning the AHTA's permission for the charges in question, we would accord that decision substantial deference. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). Lacking guidance from the Secretary, however, and compelled to give effect to the statute's use of "reasonable," we must look elsewhere.The parties point to the standards this Court employs to measure the reasonableness of fees under the Commerce Clause, as stated in the Evansville case, see supra, at 362363; they invite our use of the Evansville standards as baselines for determining the reasonableness of fees under theplicable to claims properly cognizable in court that contain some issue within the special competence of an administrative agency" and permits courts to make a "'referral' to the agency, staying further proceedings so as to give the parties reasonable opportunity to seek an administrative ruling." Reiter v. Cooper, 507 U. S. 258, 268 (1993). However, as the parties have not briefed or argued this question, we decline to invoke the doctrine here.11 The Federal Aviation Act, which encompasses the AHTA, authorizes the Secretary of Transportation to conduct investigations, issue orders, and promulgate regulations necessary to implement the statute. See 49 U. S. C. App. § 1354(a). The Act provides a mechanism for administrative adjudication, subject to judicial review in the courts of appeals, of alleged violations. See § 1482(a) ("[a]ny person may file with the Secretary of Transportation ... a complaint in writing with respect to anything done or omitted to be done by any person in contravention of any provisions of [the Act], or of any requirement established pursuant thereto"); § 1486 (judicial review provision). The Secretary has established procedures for adjudicating such complaints through the Federal Aviation Administration, see 14 CFR pt. 13 (1993), and the FAA has entertained challenges to the reasonableness of airport landing fees under the AHTA. See New England Legal Foundation v. Massachusetts Port Authority, 883 F.2d 157, 159-166 (CAI1989).368AHTA.12 We accept the parties' suggestions. Although Congress enacted the AHTA because it found unsatisfactory the end result of our Commerce Clause analysis in Evansville-the validation of "head" taxes-Congress specifically permitted, through § 1513(b)'s saving clause, "reasonable rental charges, landing fees, and other services charges." 13 The formulation in Evansville has been used to determine "reasonableness" in related contexts. See, e. g., American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 289-290 (1987) (applying Evansville test to assess validity under Commerce Clause of state taxes applied to interstate motor carrier); Massachusetts v. United States, 435 U. S. 444, 466467 (1978) (applying Evansville test to determine constitutionality of tax under intergovernmental immunity doctrine). It will suffice for the purpose at hand.1412 See Brief for Petitioners 20, 22-23; Reply Brief for Petitioners 3-4; Brief for Respondents 32; see also Brief for United States as Amicus Curiae 23-29 (arguing that Evansville reasonableness test is satisfied without explicitly endorsing its application).13 Contrary to the dissent's suggestion, applying Evansville's standards to determine whether airport fees are "reasonable" under § 1513(b) would not permit airports to "impos[e] a modest per passenger fee on airlines as a service charge for use of airport facilities." Post, at 380. Section 1513(a)'s prohibition is written broadly, whereas § 1513(b) is narrow, saving only "reasonable rental charges, landing fees, and other service charges." A per passenger service charge would be an impermissible "head charge" under § 1513(a), and does not fit into any of the three categories saved by § 1513(b). The user fees challenged here, by contrast, are "rental charges, landing fees, and other service charges," § 1513(b), that would be prohibited as "fee[s]" or "other charge[s]" under § 1513(a), unless they are "reasonable." See supra, at 365-366.14 It remains open to the Secretary, utilizing his Department's capacity to comprehend the details of airport operations across the country, and the economics of the air transportation industry, to apply some other formula (including one that entails more rigorous scrutiny) for determining whether fees are "reasonable" within the meaning of the AHTA; his exposition will merit judicial approbation so long as it represents "a permissible construction of the statute." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984).369To recapitulate, a levy is reasonable under Evansville if it (1) is based on some fair approximation of use of the facilities, (2) is not excessive in relation to the benefits conferred, and (3) does not discriminate against interstate commerce. 405 U. S., at 716-717. The Airlines contend that the Airport's fee structure fails the Evansville test on three main counts. We consider each contention in turn.1As noted above, the Airport allocates its air-operations costs between the Airlines and general aviation; the concessions in fact supply the lion's share of the Airport's revenues, see supra, at 360, but are allocated none of these costs. The Airlines contend that the concessions benefit substantially, albeit indirectly, from air operations, because those operations generate the concessions' customer flow. Therefore, the Airlines urge, the Airport's failure to allocate to the concessions any of the airfield-associated costs violates Evansville's requirement that user fees be "based on some fair approximation of use or privilege for use." 405 U. S., at 716-717. The cost reallocation sought by the Airlines would not change the market-based rent paid by the concessions, see supra, at 360, but it would lower the charges imposed on the Airlines.We see no obvious conflict with Evansville in the Airport's allocation of the costs of air operations to the Airlines and general aviation, but not to the concessions. Only the Airlines and general aviation actually use the runways and navigational facilities of the Airport; the concessions use only the terminal facilities. The Airport's decision to allocate costs according to a formula that accounts for this distinction appears to "reflect a fair, if imperfect, approximation of the use of facilities for whose benefit they are imposed." 405 U. S., at 716-717.1515 See also 405 U. S., at 718-719 (airports may lawfully distinguish among classes of users, including aircraft operators and concessions, based on their differing uses of airport facilities); Denver v. Continental Air Lines,370The District Court found that (with one minor exception 16) the Airport charged the Airlines "the break-even costs for the areas they use." 738 F. Supp., at 1119.17 In this light, we cannot conclude that the Airlines were charged fees "excessive in comparison with the governmental benefit conferred." Evansville, supra, at 717. See also Brief for United States as Amicus Curiae 25 ("As long as an airport's charges to air carriers do not result in revenues that exceed by more than a reasonable margin the costs of servicing those carriers, the Secretary would normally sustain those charges as reasonable under federal law.") (citing Federal Aviation Administration, Airport Compliance Requirements, Order No. 5190.6A §§4-13, 4-14, pp. 20-22 (Oct. 2, 1989), and 14 CFR § 399.110(f) (1993)).2The Airlines also contend that the Airport's fee methodology is unlawful because, by imposing on the Airlines virtu-Inc., 712 F. Supp. 834,838,839 (Colo. 1989) (rejecting a similar argument, noting: "Nothing in the history and purpose of the Anti-Head Tax Act indicates that Congress intended the courts to act as a public utility commission and intervene in the setting of airport rates and charges through the adoption or rejection of any particular type of cost accounting methodology. Denver's division of costs and revenues between airlines and concessionaires is facially a reasonable approach to establishing rental charges, terminal rates, landing fees and other service charges which are collected from the users of the facilities at Stapleton [Airport].").16 The District Court found that the Airport overcharged the Airlines for aircraft parking and ordered the Airport "to recalculate this fee to result in a true break-even charge." 738 F. Supp., at 1120. The Airport did not appeal this order.17The Airlines do not dispute that they are charged only their allocated share of the airfield and terminal costs. They assert, however, that the Airport has allocated to them excessive "carrying charges" or amortization fees for capital improvements. The Court of Appeals specifically addressed and rejected this contention, concluding that the rate charged "is reasonable and should not result in a net present value which exceeds the initial cost of the [capital improvements] project." 955 F.2d 1054, 1063 (CA6 1992). We have no cause to disturb that determination.371ally all of the air-operations costs, and exacting fees from the concessions far in excess of their allocated costs, the methodology generates huge surpluses. The AHTA, however, does not authorize judicial inquiry focused on the amount of the Airport's surplus. The statute requires only that an airport's fees not "be excessive in relation to costs incurred by the taxing authorities" for benefits conferred on the user. Evansville, supra, at 719. As we have explained, the Airlines are charged only for the costs of benefits they receive. The Airport's surplus is generated from fees charged to concessions, and the amounts of those fees are not at issue. As the Court of Appeals pointed out, § 1513(b) applies only to fees charged to "aircraft operators." 955 F. 2d, at 1060.The Airlines urge us to consider the effect of the concession revenues when deciding whether the fees charged the Airlines are reasonable, pointing to the Seventh Circuit's analysis in Indianapolis Airport v. American Airlines, Inc., 733 F. 2d, at 1268 (invalidating the Indianapolis Airport's fee structure on the ground, inter alia, that the Airport's generation of a surplus from the concession fees indirectly raised the costs of air travel). The Seventh Circuit, however, overlooked a key factor. It reasoned explicitly from the incorrect premise that "[n]o agency has regulatory authority over the rate practices of the Indianapolis Airport Authority." Ibid. The Seventh Circuit panel believed that "the duty of regulation [fell] to the courts in the enforcement of the state and federal statutes forbidding unreasonable rates." Ibid. That court thought it necessary to "imagine [itself] in the role of a regulatory agency." Ibid. In contrast, our opinion in this case emphasizes that the Department of Transportation has regulatory authority to enforce the federal aviation laws, including the AHTA and the AAIA, see supra, at 366367, and n. 11, so there is no cause for courts to offer a substitute for "conventional public utility regulation," 733 F. 2d, at 1268.372We resist inferring a limit on airport surpluses from the AHTA for a further reason. That measure does not mention surplus accumulation, but another statute, the AAIA, directly addresses the use of airport revenues. The AAIA requires that "all revenues generated by the airport ... be expended for the capital or operating costs of the airport .... " 49 U. S. C. App. § 2210(a)(12) (emphasis supplied). The Airlines do not suggest that the Airport is using its surplus for any purpose other than Airport-related expenses, nor did they seek review of the lower courts' holding that they had no right of action under the AAIA. 955 F. 2d, at 1058-1059. For these reasons, even if the AAIA is read to impose a limit on the accumulation of surplus revenues, see Brief for United States as Amicus Curiae 26-27, the question whether the Airport's surpluses are excessive is not properly before us.3Finally, the Airlines contend that the Airport's fees discriminate against them in favor of general aviation, in violation of Evansville's instruction that airport tolls be nondiscriminatory regarding interstate commerce and travel. As earlier recounted, see supra, at 359-360, the Airlines pay 100% of their allocated costs while general aviation users are assessed fees covering only 20% of their allocated costs.We need not consider whether the Airlines would have a compelling point had they established that general aviation is properly categorized as intrastate commerce. Cf., e. g., Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334, 339-348 (1992) (invalidating state fee on hazardous wastes generated outside, but disposed of inside, the State, because it discriminated against interstate commerce); American Trucking Assns., Inc. v. Scheiner, 483 U. S., at 268-269 (invalidating state highway use taxes because they discriminated against interstate motor carriers). The record in this case, it suffices to say, does not support the Airlines' argument. We cannot assume, in the total absence of proof, that373the large and diverse general aviation population served by the Airport travels typically intrastate and seldom ventures beyond Michigan's borders. 18IIIThe Airlines assert that, even if the Airport's user fees are not unreasonable under the AHTA, they violate the "dormant" Commerce Clause. Even if we considered the AHTA's express permission for States' imposition of "reasonable rental charges, landing fees, and other service charges from aircraft operators for the use of airport facilities," 49 U. S. C. App. § 1513(b), insufficiently clear 19 to rule out judicial dormant Commerce Clause analysis,20 petitioners' argu-18 The Airlines suggest that they had no opportunity to develop a record demonstrating discrimination in favor of intrastate carriers, because the District Court granted summary judgment for respondents on the Commerce Clause question. See Reply Brieffor Petitioners 9-10, n. 14. This argument does not fly. The case did proceed to trial on the AHTA claim. The Airlines have asserted that Evansville's standard governs AHTA reasonableness. Thus, under their own theory, they had to demonstrate the equivalent of a violation of the dormant Commerce Clause-i. e., discrimination against interstate commerce-in order to prevail at the AHTA trial. The Airlines' belated suggestion-which contradicts their endorsement of Evansville, see Brief for Petitioners 22-23-that discrimination in favor of intrastate commerce is relevant under the Commerce Clause, but not under the AHTA, is unimpressive. The AHTA was a direct response to Evansville; Congress' principal concern in enacting the measure was to proscribe fees that unduly burden interstate commerce. See, e. g., S. Rep. No. 93-12, p. 17 (1973). Covered fees, as we have emphasized, include, but are not limited to, head taxes. See supra, at 365-366, and n.9.19 See, e. g., Wyoming v. Oklahoma, 502 U. S. 437, 458 (1992) (requiring that Congress "manifest its unambiguous intent before a federal statute will be read to permit" state regulation discriminating against interstate commerce).20 See, e. g., Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 154 (1982) ("Once Congress acts, courts are not free to review state taxes or other regulations under the dormant Commerce Clause. When Congress has struck the balance it deems appropriate, the courts are no longer needed to prevent States from burdening commerce, and it matters not that the374ment would fail. We have already found the challenged fees reasonable under the AHTA through the lens of Evansville-that is, under a reasonableness standard taken directly from our dormant Commerce Clause jurisprudence.***For the reasons stated, and without prejudging the outcome of any eventual proceeding before or regulation by the Secretary of Transportation, we affirm the judgment of the Court of Appeals.It is so ordered

OCTOBER TERM, 1993SyllabusNORTHWEST AIRLINES, INC., ET AL. v. COUNTY OF KENT, MICHIGAN, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 92-97. Argued November 29, 1993-Decided January 24,1994Respondents, the owner and operators of Michigan's Kent County International Airport (collectively, the Airport), collect rent and fees from three groups of Airport users: commercial airlines, including petitioners (Airlines); general aviation; and concessionaires such as car rental agencies and gift shops. The Airport allocates its air-operations costs--e. g., maintaining runways-to the Airlines and general aviation in proportion to their airfield use, and its terminal maintenance costs to the Airlines and concessions in proportion to each tenant's square footage. It charges the Airlines 100% of their allocated costs, but general aviation only 20% of its costs. The concessions' rates substantially exceed their allocated costs, yielding a sizable surplus that offsets the general aviation shortfall and has swelled the Airport's reserve fund by more than $1 million per year. After the County Board of Aeronautics unilaterally increased the Airlines' fees, they challenged the new rates, attacking (1) the Airport's failure to allocate any airfield costs to the concessions, (2) the surplus generated by the fee structure, and (3) the Airport's failure to charge general aviation 100% of its allocated costs. They alleged that these features made the fees unreasonable and thus unlawful under the Anti-Head Tax Act (AHTA)-which prohibits States and their subdivisions from collecting user fees, 49 U. S. C. App. § 1513(a), other than "reasonable rental charges, landing fees, and other service charges from aircraft operators for the use of airport facilities," § 1513(b)-and under the Airport and Airway Improvement Act of 1982 (AAIA). The Airlines also asserted that the Airport's treatment of general aviation discriminates against interstate commerce in favor of primarily local traffic, in violation of the Commerce Clause. The District Court held, inter alia, that the Airlines have an implied right of action under the AHTA, but not the AAIA, and no cause of action under the Commerce Clause, and that the challenged fees are not unreasonable under the AHTA. The Court of Appeals affirmed in principal part, but held that the Airport had misallocated fees for the cost of providing "crash, fire, and rescue" (CFR) services.356Held:1. The Court declines to decide whether there is a private right of action under the AHTA but assumes, for purposes of this case, that the right exists. A prevailing party may defend a judgment on any ground properly raised below, without filing a cross-petition, so long as that party seeks to preserve, and not to change, the judgment. The Airport did not cross-petition on the CFR issue it lost below, and resolving the private right of action issue in its favor would alter that portion of the judgment. Pp. 364-365.2. The Airport's fees have not been shown to be unreasonable under the AHTA. Pp. 365-373.(a) The AHTA sets no standards for determining a fee's reasonableness. In the absence of guidance from the Secretary of Transportation, the Court adopts the parties' suggestion to resolve the reasonableness issue using the standards stated in Evansville- Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U. S. 707, for determining reasonableness under the Commerce Clause. Although Congress enacted the AHTA because it found unsatisfactory the end result in Evansville-the validation of "head" taxes-§ 1513(b) permits "reasonable" charges and the Evansville formulation has been used to determine "reasonableness" in related contexts, see, e. g., American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 289-290. Thus, the levy here is reasonable if it (1) is based on some fair approximation of the facilities' use, (2) is not excessive in relation to the benefits conferred, and (3) does not discriminate against interstate commerce. Evansville, supra, at 716-717. Pp.365-369.(b) The Airport's decision to allocate air-operations costs to the Airlines and general aviation, but not to the concessions, appears to "reflect a fair, if imperfect, approximation of the use of facilities for whose benefit they are imposed." Evansville, 405 U. S., at 716-717. While those operations generate the concessions' customer flow and, thus, benefit the concessions, only the Airlines and general aviation actually use the runways and navigational facilities. Accepting the District Court's finding that the Airlines were charged only the break-even costs, the Court concludes that the fees in question were not "excessive in comparison with the governmental benefit conferred." Id., at 717. Nor is the Airport's methodology unlawful because it generates large surpluses. Since § 1513(b) applies only to fees charged to "aircraft operators," it does not authorize judicial inquiry focused on the surplus generated from the concessions' fees. The Court rejects the Airlines' argument that it should take into account concession revenues, as the Seventh Circuit did in a 1984 decision, when deciding whether the Airlines' fees are reasonable. The Seventh Circuit overlooked the Department of357Full Text of Opinion

1969_927

MR. JUSTICE WHITE delivered the opinion of the Court.Prior to his trial for robbery in the State of Florida, petitioner filed a "Motion for a Protective Order," seeking to be excused from the requirements of Rule 1.200 of the Florida Rules of Criminal Procedure. That rule requires a defendant, on written demand of the prosecuting attorney, to give notice in advance of trial if the defendant intends to claim an alibi, and to furnish the prosecuting attorney with information as to the place where he claims to have been and with the names and addresses of the alibi witnesses he intends to use. [Footnote 1] In his motion, petitioner openly declared his intent to claim an alibi, but objected to the further disclosure requirements on the ground that the rule "compels the Defendant in a criminal case to be a witness against himself" in violation of his Fifth and Fourteenth Amendment rights. [Footnote 2] The motion was denied. Petitioner also filed a pretrial motion to impanel a 12-man jury instead of the six-man Page 399 U. S. 80 jury provided by Florida law in all but capital cases. [Footnote 3] That motion too was denied. Petitioner was convicted as charged and was sentenced to life imprisonment. [Footnote 4] The District Court of Appeal affirmed, rejecting petitioner's claims that his Fifth and Sixth Amendment rights had been violated. We granted certiorari. [Footnote 5] 396 U.S. 955 (1969).IFlorida's "notice of alibi" rule is, in essence, a requirement that a defendant submit to a limited form of pretrial discovery by the State whenever he intends to rely at trial on the defense of alibi. In exchange for the defendant's disclosure of the witnesses he proposes to use to establish that defense, the State, in turn, is required to notify the defendant of any witnesses it proposes to offer in rebuttal to that defense. Both sides are under a continuing duty promptly to disclose the names and addresses of additional witnesses bearing on the alibi as they become available. The threatened sanction for failure to comply is the exclusion at trial of the defendant's alibi evidence -- except for his own testimony -- or, in the case of the State, the exclusion of the State's evidence offered in rebuttal of the alibi. [Footnote 6]In this case, following the denial of his Motion for a Protective Order, petitioner complied with the alibi Page 399 U. S. 81 rule and gave the State the name and address of one Mary Scotty. Mrs. Scotty was summoned to the office of the State Attorney on the morning of the trial, where she gave pretrial testimony. At the trial itself, Mrs. Scotty, petitioner, and petitioner's wife all testified that the three of them had been in Mrs. Scotty's apartment during the time of the robbery. On two occasions during cross-examination of Mrs. Scotty, the prosecuting attorney confronted her with her earlier deposition in which she had given dates and times that, in some respects, did not correspond with the dates and times given at trial. Mrs. Scotty adhered to her trial story, insisting that she had been mistaken in her earlier testimony. [Footnote 7] The State also offered in rebuttal the testimony of one of the officers investigating the robbery who claimed that Mrs. Scotty had asked him for directions on the afternoon in question during the time when she claimed to have been in her apartment with petitioner and his wife. [Footnote 8]We need not linger over the suggestion that the discovery permitted the State against petitioner in this case deprived him of "due process" or a "fair trial." Florida law provides for liberal discovery by the defendant against the State, [Footnote 9] and the "notice of alibi" rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant. Given the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Reflecting this interest, "notice of alibi" provisions, dating at least from 1927, [Footnote 10] Page 399 U. S. 82 are now in existence in a substantial number of States. [Footnote 11] The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. [Footnote 12] We find ample room in that system, at least as far as "due process" is concerned, for the instant Florida rule, which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.Petitioner's major contention is that he was "compelled . . . to be a witness against himself," contrary to the command of the Fifth and Fourteenth Amendments, because the "notice of alibi" rule required him to give the State the name and address of Mrs. Scotty in advance of trial, and thus to furnish the State with information useful in convicting him. No pretrial statement of petitioner was introduced at trial, but, armed with Mrs. Scotty's name and address and the knowledge Page 399 U. S. 83 that she was to be petitioner's alibi witness, the State was able to take her deposition in advance of trial and to find rebuttal testimony. Also, requiring him to reveal the elements of his defense is claimed to have interfered with his right to wait until after the State had presented its case to decide how to defend against it. We conclude, however, as has apparently every other court that has considered the issue, [Footnote 13] that the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses. [Footnote 14]The defendant in a criminal trial is frequently forced to testify himself and to call other witnesses in an effort to reduce the risk of conviction. When he presents his witnesses, he must reveal their identity and submit them to cross-examination which, in itself, may prove incriminating or which may furnish the State with leads to Page 399 U. S. 84 incriminating rebuttal evidence. That the defendant faces such a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination. The pressures generated by the State's evidence may be severe, but they do not vitiate the defendant's choice to present an alibi defense and witnesses to prove it, even though the attempted defense ends in catastrophe for the defendant. However "testimonial" or "incriminating" the alibi defense proves to be, it cannot be considered "compelled" within the meaning of the Fifth and Fourteenth Amendments. Very similar constraints operate on the defendant when the State requires pretrial notice of alibi and the naming of alibi witnesses. Nothing in such a rule requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice. [Footnote 15] That choice must Page 399 U. S. 85 be made, but the pressures that bear on his pretrial decision are of the same nature as those that would induce him to call alibi witnesses at the trial: the force of historical fact beyond both his and the State's control and the strength of the State's case built on these facts. Response to that kind of pressure by offering evidence or testimony is not compelled self-incrimination transgressing the Fifth and Fourteenth Amendments.In the case before us, the "notice of alibi" rule, by itself, in no way affected petitioner's crucial decision to call alibi witnesses or added to the legitimate pressures leading to that course of action. At most, the rule only compelled petitioner to accelerate the timing of his disclosure, forcing him to divulge at an earlier date information that the petitioner from the beginning planned to divulge at trial. Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State's case before announcing the nature of his defense, any more than it entitles him to await the jury's verdict on the State's case-in-chief before deciding whether or not to take the stand himself.Petitioner concedes that, absent the "notice of alibi" rule, the Constitution would raise no bar to the court's granting the State a continuance at trial on the ground of surprise as soon as the alibi witness is called. [Footnote 16] Nor Page 399 U. S. 86 would there be self-incrimination problems if, during that continuance, the State was permitted to do precisely what it did here prior to trial: take the deposition of the witness and find rebuttal evidence. But if so utilizing a continuance is permissible under the Fifth and Fourteenth Amendments, then surely the same result may be accomplished through pretrial discovery, as it was here, avoiding the necessity of a disrupted trial. [Footnote 17] We decline to hold that the privilege against compulsory self-incrimination guarantees the defendant the right to surprise the State with an alibi defense.IIIn Duncan v. Louisiana, 391 U. S. 145 (1968), we held that the Fourteenth Amendment guarantees a right to trial by jury in all criminal cases that -- were they to be tried in a federal court -- would come within the Sixth Amendment's guarantee. Petitioner's trial for robbery on July 3, 1968, clearly falls within the scope of that holding. See Baldwin v. New York, ante, p. 399 U. S. 66; DeStefano v. Woods, 392 U. S. 631 (1968). The question in this case, then, is whether the constitutional guarantee of a trial by "jury" necessarily requires trial by exactly 12 persons, rather than some lesser number -- in this case, six. We hold that the 12-man panel is not a necessary ingredient of "trial by jury," and that respondent's refusal to impanel more than the six members provided for by Florida law did not violate petitioner's Sixth Amendment rights as applied to the States through the Fourteenth.We had occasion in Duncan v. Louisiana, supra, to review briefly the oft-told history of the development Page 399 U. S. 87 of trial by jury in criminal cases. [Footnote 18] That history revealed a long tradition attaching great importance to the concept of relying on a body of one's peers to determine guilt or innocence as a safeguard against arbitrary law enforcement. That same history, however, affords little insight into the considerations that gradually led the size of that body to be generally fixed at 12. [Footnote 19] Some have suggested that the number 12 was fixed upon simply because that was the number of the presentment jury from the hundred, from which the petit jury developed. [Footnote 20] Page 399 U. S. 88 Other, less circular but more fanciful reasons for the number 12 have been given, "but they were all brought forward after the number was fixed," [Footnote 21] and rest on little more than mystical or superstitious insights into the significance of "12." Lord Coke's explanation that the "number of twelve is much respected in holy writ, as 12 apostles, 12 stones, 12 tribes, etc.," [Footnote 22] is typical. [Footnote 23] In Page 399 U. S. 89 short, while, sometime in the 14th century, the size of the jury at common law came to be fixed generally at 12, [Footnote 24] that particular feature of the jury system appears to have been a historical accident, unrelated to the great Page 399 U. S. 90 purposes which gave rise to the jury in the first place. [Footnote 25] The question before us is whether this accidental feature of the jury has been immutably codified into our Constitution.This Court's earlier decisions have assumed an affirmative answer to this question. The leading case so construing the Sixth Amendment is Thompson v. Utah, 170 U. S. 343 (1898). There, the defendant had been tried and convicted by a 12-man jury for a crime committed in the Territory of Utah. A new trial was granted, but, by that time, Utah had been admitted as a State. The defendant's new trial proceeded under Utah's Constitution, providing for a jury of only eight members. This Court reversed the resulting conviction, holding that Utah's constitutional provision was an ex post facto law as applied to the defendant. In reaching its conclusion, the Court announced that the Sixth Amendment was applicable to the defendant's trial when Utah was a Territory, and that the jury referred to in the Amendment was a jury "constituted, as it was at common law, of twelve persons, neither more nor less." 170 U.S. at 170 U. S. 349. Arguably unnecessary for the result, [Footnote 26] Page 399 U. S. 91 this announcement was supported simply by referring to the Magna Carta, [Footnote 27] and by quoting passages from treatises which noted -- what has already been seen -- that, at common law, the jury did indeed consist of 12. Noticeably absent was any discussion of the essential step in the argument: namely, that every feature of the jury as it existed at common law -- whether incidental or essential to that institution -- was necessarily included in the Constitution wherever that document referred to a "jury." [Footnote 28] Subsequent decisions have reaffirmed the Page 399 U. S. 92 announcement in Thompson, often in dictum [Footnote 29] and usually by relying -- where there was any discussion of the issue at all -- solely on the fact that the common law jury consisted of 12. [Footnote 30] See Patton v. United States, 281 U. S. 276, 281 U. S. 288 (1930); [Footnote 31] Rasmussen v. United States, 197 U. S. 516, 197 U. S. 519 (1905); Maxwell v. Dow, 176 U. S. 581, 176 U. S. 586 (1900).While "the intent of the Framers" is often an elusive quarry, the relevant constitutional history casts considerable doubt on the easy assumption in our past decisions that, if a given feature existed in a jury at common law in 1789, then it was necessarily preserved in the Constitution. Page 399 U. S. 93 Provisions for jury trial were first placed in the Constitution in Article III's provision that "[t]he Trial of all Crimes . . . shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed." [Footnote 32] The "very scanty history [of this provision] in the records of the Constitutional Convention" [Footnote 33] sheds little light either way on the intended correlation between Article III's "jury" and the features of the jury at common law. [Footnote 34] Indeed, pending and after the adoption of the Constitution, fears were expressed that Article III's provision failed to preserve the common law right to be tried by a "jury of the vicinage." [Footnote 35] That concern, as well as the concern Page 399 U. S. 94 to preserve the right to jury in civil, as well as criminal, cases, furnished part of the impetus for introducing amendments to the Constitution that ultimately resulted in the jury trial provisions of the Sixth and Seventh Amendments. As introduced by James Madison in the House, the Amendment relating to jury trial in criminal cases would have provided that:"The trial of all crimes . . . shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites. . . . [Footnote 36]"The Amendment passed the House in substantially this form, but, after more than a week of debate in the Senate, it returned to the House considerably altered. [Footnote 37] While records of the actual debates that occurred in Page 399 U. S. 95 the Senate are not available, [Footnote 38] a letter from Madison to Edmund Pendleton on September 14, 1789, indicates that one of the Senate's major objections was to the "vicinage" requirement in the House version. [Footnote 39] A conference committee was appointed. As reported in a second letter by Madison on September 23, 1789, the Senate remained opposed to the vicinage requirement, partly because, in its view, the then-pending judiciary bill -- which was debated at the same time as the Amendment -- adequately preserved the common law vicinage feature, making it unnecessary to freeze that requirement into the Constitution. "The Senate," wrote Madison:"are . . . inflexible in opposing a definition of the locality of Juries. The vicinage, they contend, is either too vague or too strict a term; too vague if depending on limits to be fixed by the pleasure of the law, too strict if limited to the county. It was proposed to insert after the word Juries, 'with the accustomed requisites,' leaving the definition to be construed according to the judgment of professional Page 399 U. S. 96 men. Even this could not be obtained. . . . The Senate suppose also that the provision for vicinage in the Judiciary bill will sufficiently quiet the fears which called for an amendment on this point. [Footnote 40]"The version that finally emerged from the Committee was the version that ultimately became the Sixth Amendment, ensuring an accused:"the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. . . ."Gone were the provisions spelling out such common law features of the jury as "unanimity," or "the accustomed requisites." And the "vicinage" requirement itself had been replaced by wording that reflected a compromise between broad and narrow definitions of that term, and that left Congress the power to determine the actual size of the "vicinage" by its creation of judicial districts. [Footnote 41]Three significant features may be observed in this sketch of the background of the Constitution's jury trial provisions. First, even though the vicinage requirement was as much a feature of the common law jury as was the 12-man requirement, [Footnote 42] the mere reference to "trial by jury" in Article III was not interpreted to include that feature. Indeed, as the subsequent debates over the Amendments indicate, disagreement arose over whether the feature should be included at all in its common law sense, resulting in the compromise described above. Second, provisions that would have explicitly Page 399 U. S. 97 tied the "jury" concept to the "accustomed requisites" of the time were eliminated. Such action is concededly open to the explanation that the "accustomed requisites" were thought to be already included in the concept of a "jury." But that explanation is no more plausible than the contrary one: that the deletion had some substantive effect. Indeed, given the clear expectation that a substantive change would be effected by the inclusion or deletion of an explicit "vicinage" requirement, the latter explanation is, if anything, the more plausible. Finally, contemporary legislative and constitutional provisions indicate that, where Congress wanted to leave no doubt that it was incorporating existing common law features of the jury system, it knew how to use express language to that effect. Thus, the Judiciary bill, signed by the President on the same day that the House and Senate finally agreed on the form of the Amendments to be submitted to the States, provided in certain cases for the narrower "vicinage" requirements that the House had wanted to include in the Amendments. [Footnote 43] And the Seventh Amendment, providing for jury trial in civil cases, explicitly added that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." [Footnote 44] Page 399 U. S. 98We do not pretend to be able to divine precisely what the word "jury" imported to the Framers, the First Congress, or the States in 1789. It may well be that the usual expectation was that the jury would consist of 12, [Footnote 45] and that hence, the most likely conclusion Page 399 U. S. 99 to be drawn is simply that little thought was actually given to the specific question we face today. But there is absolutely no indication in "the intent of the Framers" of an explicit decision to equate the constitutional and common law characteristics of the jury. Nothing in this history suggests, then, that we do violence to the letter of the Constitution by turning to other than purely historical considerations to determine which features of the jury system, as it existed at common law, were preserved in the Constitution. The relevant inquiry, as we see it, must be the function that the particular feature performs and its relation to the Page 399 U. S. 100 purposes of the jury trial. Measured by this standard, the 12-man requirement cannot be regarded as an indispensable component of the Sixth Amendment.The purpose of the jury trial, as we noted in Duncan, is to prevent oppression by the Government."Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge."Duncan v. Louisiana, supra, at 391 U. S. 156. Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the common sense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six than when it numbers 12 -- particularly if the requirement of unanimity is retained. [Footnote 46] And, certainly the reliability of the jury Page 399 U. S. 101 as a factfinder hardly seems likely to be a function of its size.It might be suggested that the 12-man jury gives a defendant a greater advantage, since he has more "chances" of finding a juror who will insist on acquittal and thus prevent conviction. But the advantage might just as easily belong to the State, which also needs only one juror out of twelve insisting on guilt to prevent acquittal. [Footnote 47] What few experiments have occurred -- usually in the civil area -- indicate that there is no discernible difference between the results reached by the two different-sized juries. [Footnote 48] In short, neither currently available evidence nor theory [Footnote 49] a suggests that the 12-man Page 399 U. S. 102 jury is necessarily more advantageous to the defendant than a jury composed of fewer members.Similarly, while, in theory, the number of viewpoints represented on a randomly selected jury ought to increase as the size of the jury increases, in practice, the difference between the 12-man and the six-man jury in terms of the cross-section of the community represented seems likely to be negligible. Even the 12-man jury cannot insure representation of every distinct voice in the community, particularly given the use of the peremptory challenge. As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, see, e.g., Carter v. Jury Commission, 396 U. S. 320, 396 U. S. 329-330 (1970), the concern that the cross-section will be significantly diminished if the jury is decreased in size from 12 to six seems an unrealistic one.We conclude, in short, as we began: the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance "except to mystics." Duncan v. Louisiana, supra, at 391 U. S. 182 (HARLAN, J., dissenting). To read the Sixth Amendment as Page 399 U. S. 103 forever codifying a feature so incidental to the real purpose of the Amendment is to ascribe a blind formalism to the Framers which would require considerably more evidence than we have been able to discover in the history and language of the Constitution or in the reasoning of our past decisions. We do not mean to intimate that legislatures can never have good reasons for concluding that the 12-man jury is preferable to the smaller jury, or that such conclusions -- reflected in the provisions of most States and in our federal system [Footnote 50] -- are in any sense unwise. Legislatures may well have their own views about the relative value of the larger and smaller juries, and may conclude that, wholly apart from the jury's primary function, it is desirable to spread the collective responsibility for the determination of guilt among the larger group. In capital cases, for example, it appears that no State provides for less than 12 jurors -- a fact that suggests implicit recognition of the value of the larger body as a means of legitimating society's decision to impose the death penalty. Our holding does no more than leave these considerations to Congress and the States, unrestrained by an interpretation of the Sixth Amendment that would forever dictate the precise number that can constitute a jury. Consistent with this holding, we conclude that petitioner's Sixth Amendment rights, as applied to the States through the Fourteenth Amendment, were not violated by Florida's decision to provide a six-man, rather than a 12-man, jury. The judgment of the Florida District Court of Appeal isAffirmed

U.S. Supreme CourtWilliams v. Florida, 399 U.S. 78 (1970)Williams v. FloridaNo. 927Argued March 4, 1970Decided June 22, 1970399 U.S. 78SyllabusFlorida has a rule of criminal procedure requiring a defendant who intends to rely on an alibi to disclose to the prosecution the names of his alibi witnesses; the prosecution must, in turn, disclose to the defense the names of witnesses to rebut the alibi. Failure to comply can result in exclusion of alibi evidence at trial (except for the defendant's own testimony) or, in the case of the State, exclusion of the rebuttal evidence. Petitioner, who was charged with robbery, complied with the rule after failing to be relieved of its requirements. His pretrial motion to impanel a 12-man jury, instead of the six-man jury Florida law provides for noncapital cases, was denied. At trial, the State used a deposition of petitioner's alibi witness to impeach the witness. Petitioner was convicted, and the appellate court affirmed. Petitioner claims that his Fifth Amendment rights were violated, on the ground that the notice-of-alibi rule required him to furnish the State with information useful in convicting him, and that his Sixth Amendment right was violated on the ground that the six-man jury deprived him of the right to "trial by jury" under the Sixth Amendment.Held:1. Florida's notice-of-alibi rule does not violate the Fifth Amendment as made applicable to the States by the Fourteenth Amendment. Pp. 399 U. S. 80-86.(a) This discovery rule is designed to enhance the search for truth in criminal trials by giving both the accused and the State opportunity to investigate certain facts crucial to the issue of guilt or innocence, and comports with requirements for due process and a fair trial. Pp. 399 U. S. 81 82.(b) The rule, at most, accelerated the timing of petitioner's disclosure of an alibi defense, and thus did not violate the privilege against compelled self-incrimination. Pp. 399 U. S. 82-86.2. The constitutional guarantee of a trial by jury does not require that jury membership be fixed at 12, a historically accidental figure. Although accepted at common law, the Framers did not explicitly intend to forever codify as a constitutional requirement a feature not essential to the Sixth Amendment's purpose of interposing Page 399 U. S. 79 between the defendant and the prosecution the common sense judgment of his peers. Pp. 399 U. S. 86-103.224 So. 2d 406, affirmed.

1962_155

MR. JUSTICE BLACK delivered the opinion of the Court.Petitioner was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under Page 372 U. S. 337 Florida law. Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him, whereupon the following colloquy took place:"The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.""The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel."Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State's witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument "emphasizing his innocence to the charge contained in the Information filed in this case." The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison. Later, petitioner filed in the Florida Supreme Court this habeas corpus petition attacking his conviction and sentence on the ground that the trial court's refusal to appoint counsel for him denied him rights "guaranteed by the Constitution and the Bill of Rights by the United States Government." [Footnote 1] Treating the petition for habeas corpus as properly before it, the State Supreme Court, "upon consideration thereof" but without an opinion, denied all relief. Since 1942, when Betts v. Brady, 316 U. S. 455, was decided by a divided Page 372 U. S. 338 Court, the problem of a defendant's federal constitutional right to counsel in a state court has been a continuing source of controversy and litigation in both state and federal courts. [Footnote 2] To give this problem another review here, we granted certiorari. 370 U.S. 908. Since Gideon was proceeding in forma pauperis, we appointed counsel to represent him and requested both sides to discuss in their briefs and oral arguments the following: "Should this Court's holding in Betts v. Brady, 316 U. S. 455, be reconsidered?"IThe facts upon which Betts claimed that he had been unconstitutionally denied the right to have counsel appointed to assist him are strikingly like the facts upon which Gideon here bases his federal constitutional claim. Betts was indicted for robbery in a Maryland state court. On arraignment, he told the trial judge of his lack of funds to hire a lawyer and asked the court to appoint one for him. Betts was advised that it was not the practice in that county to appoint counsel for indigent defendants except in murder and rape cases. He then pleaded not guilty, had witnesses summoned, cross-examined the State's witnesses, examined his own, and chose not to testify himself. He was found guilty by the judge, sitting without a jury, and sentenced to eight years in prison. Page 372 U. S. 339 Like Gideon, Betts sought release by habeas corpus, alleging that he had been denied the right to assistance of counsel in violation of the Fourteenth Amendment. Betts was denied any relief, and, on review, this Court affirmed. It was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment, which, for reasons given, the Court deemed to be the only applicable federal constitutional provision. The Court said:"Asserted denial [of due process] is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial."316 U.S. at 316 U. S. 462. Treating due process as "a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights," the Court held that refusal to appoint counsel under the particular facts and circumstances in the Betts case was not so "offensive to the common and fundamental ideas of fairness" as to amount to a denial of due process. Since the facts and circumstances of the two cases are so nearly indistinguishable, we think the Betts v. Brady holding, if left standing, would require us to reject Gideon's claim that the Constitution guarantees him the assistance of counsel. Upon full reconsideration, we conclude that Betts v. Brady should be overruled.IIThe Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." We have construed Page 372 U. S. 340 this to mean that, in federal courts, counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. [Footnote 3] Betts argued that this right is extended to indigent defendants in state courts by the Fourteenth Amendment. In response, the Court stated that, while the Sixth Amendment laid down"no rule for the conduct of the States, the question recurs whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment."316 U.S. at 316 U. S. 465. In order to decide whether the Sixth Amendment's guarantee of counsel is of this fundamental nature, the Court in Betts set out and considered"[r]elevant data on the subject . . . afforded by constitutional and statutory provisions subsisting in the colonies and the States prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the States to the present date."316 U.S. at 316 U. S. 465. On the basis of this historical data, the Court concluded that "appointment of counsel is not a fundamental right, essential to a fair trial." 316 U.S. at 316 U. S. 471. It was for this reason the Betts Court refused to accept the contention that the Sixth Amendment's guarantee of counsel for indigent federal defendants was extended to or, in the words of that Court, "made obligatory upon, the States by the Fourteenth Amendment." Plainly, had the Court concluded that appointment of counsel for an indigent criminal defendant was "a fundamental right, essential to a fair trial," it would have held that the Fourteenth Amendment requires appointment of counsel in a state court, just as the Sixth Amendment requires in a federal court. Page 372 U. S. 341We think the Court in Betts had ample precedent for acknowledging that those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgment are equally protected against state invasion by the Due Process Clause of the Fourteenth Amendment. This same principle was recognized, explained, and applied in Powell v. Alabama, 287 U. S. 45 (1932), a case upholding the right of counsel, where the Court held that, despite sweeping language to the contrary in Hurtado v. California, 110 U. S. 516 (1884), the Fourteenth Amendment "embraced" those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,'" even though they had been "specifically dealt with in another part of the federal Constitution." 287 U.S. at 287 U. S. 67. In many cases other than Powell and Betts, this Court has looked to the fundamental nature of original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the States. Explicitly recognized to be of this "fundamental nature," and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment's freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. [Footnote 4] For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment's command that Page 372 U. S. 342 private property shall not be taken for public use without just compensation, [Footnote 5] the Fourth Amendment's prohibition of unreasonable searches and seizures, [Footnote 6] and the Eighth's ban on cruel and unusual punishment. [Footnote 7] On the other hand, this Court in Palko v. Connecticut, 302 U. S. 319 (1937), refused to hold that the Fourteenth Amendment made the double jeopardy provision of the Fifth Amendment obligatory on the States. In so refusing, however, the Court, speaking through Mr. Justice Cardozo, was careful to emphasize that"immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states,"and that guarantees "in their origin . . . effective against the federal government alone" had, by prior cases,"been taken over from the earlier articles of the federal bill of rights and brought within the Fourteenth Amendment by a process of absorption."302 U.S. at 302 U. S. 324-326.We accept Betts v. Brady's assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is "fundamental and essential to a fair trial" is made obligatory upon the States by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment's guarantee of counsel is not one of these fundamental rights. Ten years before Betts v. Brady, this Court, after full consideration of all the historical data examined in Betts, had unequivocally declared that "the right to the aid of Page 372 U. S. 343 counsel is of this fundamental character." Powell v. Alabama, 287 U. S. 45, 287 U. S. 68 (1932). While the Court, at the close of its Powell opinion, did, by its language, as this Court frequently does, limit its holding to the particular facts and circumstances of that case, its conclusions about the fundamental nature of the right to counsel are unmistakable. Several years later, in 1936, the Court reemphasized what it had said about the fundamental nature of the right to counsel in this language:"We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state action by the due process of law clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution."Grosjean v. American Press Co., 297 U. S. 233, 297 U. S. 243-244 (1936). And again, in 1938, this Court said:"[The assistance of counsel] is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. . . . The Sixth Amendment stands as a constant admonition that, if the constitutional safeguards it provides be lost, justice will not 'still be done.'"Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 462 (1938). To the same effect, see Avery v. Alabama, 308 U. S. 444 (1940), and Smith v. O'Grady, 312 U. S. 329 (1941). In light of these and many other prior decisions of this Court, it is not surprising that the Betts Court, when faced with the contention that "one charged with crime, who is unable to obtain counsel, must be furnished counsel by the State," conceded that "[e]xpressions in the opinions of this court lend color to the argument. . . ." 316 U.S. at 316 U. S. 462-463. The fact is that, in deciding as it did -- that "appointment of counsel is not a fundamental right, Page 372 U. S. 344 essential to a fair trial" -- the Court in Betts v. Brady made an abrupt break with its own well considered precedents. In returning to these old precedents, sounder, we believe, than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents, but also reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be Page 372 U. S. 345 heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."287 U.S. at 287 U. S. 68-69. The Court in Betts v. Brady departed from the sound wisdom upon which the Court's holding in Powell v. Alabama rested. Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty-two States, as friends of the Court, argue that Betts was "an anachronism when handed down," and that it should now be overruled. We agree.The judgment is reversed, and the cause is remanded to the Supreme Court of Florida for further action not inconsistent with this opinion.Reversed

U.S. Supreme CourtGideon v. Wainwright, 372 U.S. 335 (1963)Gideon v. WainwrightNo. 155Argued January 15, 1963Decided March 18, 1963372 U.S. 335SyllabusCharged in a Florida State Court with a noncapital felony, petitioner appeared without funds and without counsel and asked the Court to appoint counsel for him, but this was denied on the ground that the state law permitted appointment of counsel for indigent defendants in capital cases only. Petitioner conducted his own defense about as well as could be expected of a layman, but he was convicted and sentenced to imprisonment. Subsequently, he applied to the State Supreme Court for a writ of habeas corpus, on the ground that his conviction violated his rights under the Federal Constitution. The State Supreme Court denied all relief.Held: The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner's trial and conviction without the assistance of counsel violated the Fourteenth Amendment. Betts v. Brady, 316 U. S. 455, overruled. Pp. 372 U. S. 336-345.Reversed and cause remanded. Page 372 U. S. 336

1975_74-1560

MR. JUSTICE POWELL delivered the opinion of the Court.These cases involve criminal prosecutions for offenses relating to the transportation of illegal Mexican aliens. Each defendant was arrested at a permanent checkpoint operated by the Border Patrol away from the international border with Mexico, and each sought the exclusion of certain evidence on the ground that the operation of the checkpoint was incompatible with the Fourth Amendment. In each instance, whether the Fourth Amendment was violated turns primarily on whether a vehicle may be stopped at a fixed checkpoint for brief questioning of its occupants even though there is no reason to believe the particular vehicle contains illegal aliens. We reserved this question last Term in United States v. Ortiz, 422 U. S. 891, 422 U. S. 897 n. 3 (1975). We hold today that such stops are consistent with the Fourth Amendment. We also hold that the operation of a fixed checkpoint need not be authorized in advance by a Judicial warrant.IAThe respondents in No. 74-1560 are defendants in three separate prosecutions resulting from arrests made on three different occasions at the permanent immigration checkpoint on Interstate 5 near San Clemente, Cal. Interstate 5 is the principal highway between San Diego and Los Angeles, and the San Clemente checkpoint is 66 road miles north of the Mexican border. We previously have described the checkpoint as follows:""Approximately one mile south of the checkpoint is a large black on yellow sign with flashing yellow lights over the highway stating ALL VEHICLES, STOP AHEAD, 1 MILE.' Three-quarters of a Page 428 U. S. 546 mile further north are two black on yellow signs suspended over the highway with flashing lights stating "WATCH FOR BRAKE LIGHTS." At the checkpoint, which is also the location of a State of California weighing station, are two large signs with flashing red lights suspended over the highway. These signs each state `STOP HERE -- U.S. OFFICERS.' Placed on the highway are a number of orange traffic cones funneling traffic into two lanes where a Border Patrol agent in full dress uniform, standing behind a white on red "STOP" sign checks traffic. Blocking traffic in the unused lanes are official U.S. Border Patrol vehicles with lashing red lights. In addition, there is a permanent building which houses the Border Patrol office and temporary detention facilities. There are also floodlights for nighttime operation."" United States v. Ortiz, supra at 422 U. S. 893, quoting United States v. Baca, 368 F. Supp. 398, 410-411 (SD Cal.1973).The "point" agent standing between the two lanes of traffic visually screens all north-bound vehicles, which the checkpoint brings to a virtual, if not a complete, halt. [Footnote 1] Most motorists are allowed to resume their progress without any oral inquiry or close visual examination. In a relatively small number of cases, the "point" agent will conclude that further inquiry is in order. He directs these cars to a secondary inspection area, where their occupants are asked about their citizenship and immigration status. The Government informs us that, at San Page 428 U. S. 547 Clemente, the average length of an investigation in the secondary inspection area is three to five minutes. Brief for United States 53. A direction to stop in the secondary inspection area could be based on something suspicious about a particular car passing through the checkpoint, but the Government concedes that none of the three stops at issue in No. 74-1560 was based on any articulable suspicion. During the period when these stops were made, the checkpoint was operating under a magistrate's "warrant of inspection," which authorized the Border Patrol to conduct a routine stop operation at the San Clemente location. [Footnote 2]We turn now to the particulars of the stops involved in No. 74-1560, and the procedural history of the case. Respondent Amado Martinez-Fuerte approached the checkpoint driving a vehicle containing two female passengers. The women were illegal Mexican aliens who had entered the United States at the San Ysidro port of entry by using false papers and rendezvoused with Martinez-Fuerte in San Diego to be transported northward. At the checkpoint, their car was directed to the secondary inspection area. Martinez-Fuerte produced documents showing him to be a lawful resident alien, but his passengers admitted being present in the country unlawfully. He was charged, inter alia, with two counts of illegally transporting aliens in violation Page 428 U. S. 548 of 8 U.S.C. § 1324(a)(2). He moved before trial to suppress all evidence stemming from the stop on the ground that the operation of the checkpoint was in violation of the Fourth Amendment. [Footnote 3] The motion to suppress was denied, and he was convicted on both counts after a jury trial.Respondent Jose Jiminez-Garcia attempted to pass through the checkpoint while driving a car containing one passenger. He had picked the passenger up by prearrangement in San Ysidro after the latter had been smuggled across the border. Questioning at the secondary inspection area revealed the illegal status of the passenger, and Jiminez-Garcia was charged in two counts with illegally transporting an alien, 8 U.S.C. § 1324(a)(2), and conspiring to commit that offense, 18 U.S.C. § 371. His motion to suppress the evidence derived from the stop was granted.Respondents Raymond Guillen and Fernando Medrano-Barragan approached the checkpoint with Guillen driving and Medrano-Barragan and his wife as passengers. Questioning at the secondary inspection area revealed that Medrano-Barragan and his wife were illegal aliens. A subsequent search of the car uncovered three other illegal aliens in the trunk. Medrano-Barragan had led the other aliens across the border at the beach near Tijuana, Mexico, where they rendezvoused with Guillen, a United States citizen. Guillen and Medrano-Barragan were jointly indicated on four counts of illegally transporting Page 428 U. S. 549 aliens, 8 U.S.C. § 1324(a)(2), four counts of inducing the illegal entry of aliens, § 1324(a)(4), and one conspiracy count, 18 U.S.C. § 371. The District Court granted the defendants' motion to suppress.Martinez-Fuerte appealed his conviction, and the Government appealed the granting of the motions to suppress in the respective prosecutions of Jiminez-Garcia and of Guillen and Medrano-Barragan. [Footnote 4] The Court of Appeals for the Ninth Circuit consolidated the three appeals, which presented the common question whether routine stops and interrogations at checkpoints are consistent with the Fourth Amendment. [Footnote 5] The Court of Appeals held, with one judge dissenting, that these stops violated the Fourth Amendment, concluding that a stop for inquiry is constitutional only if the Border Patrol reasonably suspects the presence of illegal aliens on the basis of articulable facts. It reversed Martinez-Fuerte's conviction, and affirmed the orders to suppress in the other cases. 514 F.2d 308 (1975). We reverse and remand.BPetitioner in No. 75-5387, Rodolfo Sifuentes, was arrested at the permanent immigration checkpoint on U.S. Highway 77 near Sarita, Tex. Highway 77 originates in Brownsville, and it is one of the two major highways running north from the lower Rio Grande valley. The Sarita checkpoint is about 90 miles north of Brownsville, Page 428 U. S. 550 and 65-90 miles from the nearest points of the Mexican border. The physical arrangement of the checkpoint resembles generally that at San Clemente, but the checkpoint is operated differently, in that the officers customarily stop all north-bound motorists for a brief inquiry. Motorists whom the officers recognize as local inhabitants, however, are waved through the checkpoint without inquiry. Unlike the San Clemente checkpoint, the Sarita operation was conducted without a judicial warrant.Sifuentes drove up to the checkpoint without any visible passengers. When an agent approached the vehicle, however, he observed four passengers, one in the front seat and the other three in the rear, slumped down in the seats. Questioning revealed that each passenger was an illegal alien, although Sifuentes was a United States citizen. The aliens had met Sifuentes in the United States, by prearrangement, after swimming across the Rio Grande.Sifuentes was indicated on four counts of illegally transporting aliens. 8 U.S.C. § 1324(a)(2). He moved on Fourth Amendment grounds to suppress the evidence derived from the stop. The motion was denied, and he was convicted after a jury trial. Sifuentes renewed his Fourth Amendment argument on appeal, contending primarily that stops made without reason to believe a car is transporting aliens illegally are unconstitutional. The United States Court of Appeals for the Fifth Circuit affirmed the conviction, 517 F.2d 1402 (1975), relying on its opinion in United States v. Santibanez, 517 F.2d 922 (1975). There, the Court of Appeals had ruled that routine checkpoint stops are consistent with the Fourth Amendment. We affirm. [Footnote 6] Page 428 U. S. 551IIThe Courts of Appeals for the Ninth and the Fifth Circuits are in conflict on the constitutionality of a law enforcement technique considered important by those charged with policing the Nation's borders. Before turning to the constitutional question, we examine the context in which it arises.AIt has been national policy for many years to limit immigration into the United States. Since July 1, 1968, the annual quota for immigrants from all independent countries of the Western Hemisphere, including Mexico, has been 120,000 persons. Act of Oct. 3, 1965, § 21(e), 79 Stat. 921. Many more aliens than can be accommodated under the quota want to live and work in the United States. Consequently, large numbers of aliens seek illegally to enter or to remain in the United States. We noted last Term that"[e]stimates of the number of illegal immigrants [already] in the United States vary widely. A conservative estimate in 1972 produced a figure of about one million, but the Immigration and Naturalization Service now suggests there may be a many as 10 or 12 million aliens illegally in the country."United States v. Brignoni-Ponce, 422 U. S. 873, 422 U. S. 878 (1975) (footnote omitted). It is estimated that 85% of the illegal immigrants are from Mexico, drawn by the fact that economic opportunities are significantly greater in the United States than they are in Mexico. United States v. Baca, 368 F. Supp. at 402. Page 428 U. S. 552.Interdicting the flow of illegal entrants from Mexico poses formidable law enforcement problems. The principal problem arises from surreptitious entries. Id. at 405. The United States shares a border with Mexico that is almost 2,000 miles long, and much of the border area is uninhabited desert or thinly populated arid land. Although the Border Patrol maintains personnel, electronic equipment, and fences along portions of the border, it remains relatively easy for individuals to enter the United States without detection. It also is possible for an alien to enter unlawfully at a port of entry by the use of falsified papers or to enter lawfully but violate restrictions of entry in an effort to remain in the country unlawfully. [Footnote 7] Once within the country, the aliens seek to travel inland to areas where employment is believed to be available, frequently meeting by prearrangement with friends or professional smugglers who transport them in private vehicles. United States v. Brignoni-Ponce, supra at 422 U. S. 879.The Border Patrol conducts three kinds of inland traffic-checking operations in an effort to minimize illegal immigration. Permanent checkpoints, such as those at San Clemente and Sarita, are maintained at or near intersections of important roads leading away from the border. They operate on a coordinated basis designed to avoid circumvention by smugglers and others who transport the illegal aliens. Temporary checkpoints, which operate like permanent ones, occasionally are established in other strategic locations. Finally, roving patrols are maintained to supplement the checkpoint system. See Almeida-Sanchez v. United Page 428 U. S. 553 States, 413 U. S. 266, 413 U. S. 268 (1973). [Footnote 8] In fiscal 1973, 175,511 deportable aliens were apprehended throughout the Nation by "line watch" agents stationed at the border itself. Traffic-checking operations in the interior apprehended approximately 55,300 more deportable aliens. [Footnote 9] Most of the traffic-checking apprehensions were at checkpoints, though precise figures are not available. United States v. Baca, supra at 405, 407, and n. 2.BWe are concerned here with permanent checkpoints, the locations of which are chosen on the basis of a number of factors. The Border Patrol believes that, to assure effectiveness, a checkpoint must be (i) distant enough from the border to avoid interference with traffic in populated areas near the border, (ii) close to the confluence of two or more significant roads leading away from the border, (iii) situated in terrain that restricts vehicle passage around the checkpoint, (iv) on a stretch of highway compatible with safe operation, and (v) beyond the 25-mile zone in which "border passes," see n 7, supra, are valid. United States v. Baca, supra at 406. Page 428 U. S. 554The record in No. 74-1560 provides a rather complete picture of the effectiveness of the San Clemente checkpoint. Approximately 10 million cars pass the checkpoint location each year, although the checkpoint actually is in operation only about 70% of the time. [Footnote 10] In calendar year 1973, approximately 17,000 illegal aliens were apprehended there. During an eight-day period in 1974 that included the arrests involved in No. 74-1560, roughly 146,000 vehicles passed through the checkpoint during 124 1/6 hours of operation. Of these, 820 vehicles were referred to the secondary inspection area, where Border Patrol agents found 725 deportable aliens in 171 vehicles. In all but two cases, the aliens were discovered without a conventional search of the vehicle. A similar rate of apprehensions throughout the year would have resulted in an annual total of over 33,000, although the Government contends that many illegal aliens pass through the checkpoint undetected. The record in No. 75-5387 does not provide comparable statistical information regarding the Sarita checkpoint. While it appears that fewer illegal aliens are apprehended there, it may be assumed that fewer pass by undetected, as every motorist is questioned.IIIThe Fourth Amendment imposes limits on search and seizure powers in order to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. See United States v. Brignoni-Ponce, 422 U.S. at 422 U. S. 878; United States v. Ortiz, 422 U.S. at 422 U. S. 895; Camara v. Municipal Court, Page 428 U. S. 555 387 U. S. 523, 387 U. S. 528 (1967). In delineating the constitutional safeguards applicable in particular contexts, the Court has weighed the public interest against the Fourth Amendment interest of the individual, United States v. Brignoni-Ponce, supra at 422 U. S. 878; Terry v. Ohio, 392 U. S. 1, 392 U. S. 20-21 (1968), a process evident in our previous cases dealing with Border Patrol traffic-checking operations.In Almeida-Sanchez v. United States, supra, the question was whether a roving patrol unit constitutionally could search a vehicle for illegal aliens simply because it was in the general vicinity of the border. We recognized that important law enforcement interests were at stake, but held that searches by roving patrols impinged so significantly on Fourth Amendment privacy interests that a search could be conducted without consent only if there was probable cause to believe that a car contained illegal aliens, at least in the absence of a judicial warrant authorizing random searches by roving patrols in a given area. Compare 413 U.S. at 413 U. S. 273, with id. at 413 U. S. 283-285 (POWELL, J., concurring), and id. at 413 U. S. 288 (WHITE, J., dissenting). We held in United States v. Ortiz, supra, that the same limitations applied to vehicle searches conducted at a permanent checkpoint.In United States v. Brignoni-Ponce, supra, however, we recognized that other traffic-checking practices involve a different balance of public and private interests, and appropriately are subject to less stringent constitutional safeguards. The question was under what circumstances a roving patrol could stop motorists in the general area of the border for brief inquiry into their residence status. We found that the interference with Fourth Amendment interests involved in such a stop was "modest," 422 U.S. at 422 U. S. 880, while the inquiry served significant law enforcement needs. We therefore held that a roving patrol stop need not be justified by probable Page 428 U. S. 556 cause and may be undertaken if the stopping officer is "aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that a vehicle contains illegal aliens. Id. at 422 U. S. 884. [Footnote 11]IVIt is agreed that checkpoint stops are "seizures" within the meaning of the Fourth Amendment. The defendants contend primarily that the routine stopping of vehicles at a checkpoint is invalid because Brignoni-Ponce must be read as proscribing any stops in the absence of reasonable suspicion. Sifuentes alternatively contends in No. 75-5387 that routine checkpoint stops are permissible only when the practice has the advance judicial authorization of a warrant. There was a warrant authorizing the stops at San Clemente, but none at Sarita. As we reach the issue of a warrant requirement only if reasonable suspicion is not required, we turn first to whether reasonable suspicion is a prerequisite to a valid stop, a question to be resolved by balancing the interests at stake.AOur previous cases have recognized that maintenance of a traffic-checking program in the interior is necessary because the flow of illegal aliens cannot be controlled effectively at the border. We note here only the substantiality of the public interest in the practice of routine stops for inquiry at permanent checkpoints, a practice which the Government identifies as the most important of the traffic-checking operations. Brief for United States in No. 74-1560, pp. 19-20. [Footnote 12] These checkpoints Page 428 U. S. 557 are located on important highways; in their absence, such highways would offer illegal aliens a quick and safe route into the interior. Routine checkpoint inquiries apprehend many smugglers and illegal aliens who succumb to the lure of such highways. And the prospect of such inquiries forces others onto less efficient roads that are less heavily traveled, slowing their movement and making them more vulnerable to detection by roving patrols. Cf. United States v. Brignoni-Ponce, 422 U.S. at 422 U. S. 883-885.A requirement that stops on major routes inland always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens. In particular, such a requirement would largely eliminate any deterrent to the conduct of well disguised smuggling operations, even though smugglers are known to use these highways regularly.BWhile the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited. The stop does intrude to a limited extent on motorists' right to "free passage without Page 428 U. S. 558 interruption," Carroll v. United States, 267 U. S. 132, 267 U. S. 154 (1925), and arguably on their right to personal security. But it involves only a brief detention of travelers during which"'[a]ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.'"United States v. Brignoni-Ponce, supra at 422 U. S. 880. Neither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search. This objective intrusion -- the stop itself, the questioning, and the visual inspection -- also existed in roving patrol stops. But we view checkpoint stops in a different light because the subjective intrusion -- the generating of concern or even fright on the part of lawful travelers -- is appreciably less in the case of a checkpoint stop. In Ortiz, we noted:"[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion."422 U.S. at 422 U. S. 894-895.In Brignoni-Ponce, we recognized that Fourth Amendment analysis in this context also must take into account the overall degree of interference with legitimate traffic. 422 U.S. at 422 U. S. 882-883. We concluded there that random roving patrol stops could not be tolerated, because they"would subject the residents of . . . [border] areas to Page 428 U. S. 559 potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers. . . . [They] could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy highway, or a desert road. . . ."Ibid. There also was a grave danger that such unreviewable discretion would be abused by some officers in the field. Ibid.Routine checkpoint stops do not intrude similarly on the motoring public. First, the potential interference with legitimate traffic is minimal. Motorists using these highways are not taken by surprise, as they know, or may obtain knowledge of, the location of the checkpoints, and will not be stopped elsewhere. Second, checkpoint operations both appear to and actually involve less discretionary enforcement activity. The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest. The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving patrol stops. Moreover, a claim that a particular exercise of discretion in locating or operating a checkpoint is unreasonable is subject to post-stop judicial review. [Footnote 13] Page 428 U. S. 560The defendants arrested at the San Clemente checkpoint suggest that its operation involves a significant extra element of intrusiveness in that only a small percentage of cars are referred to the secondary inspection area, thereby "stigmatizing" those diverted and reducing the assurances provided by equal treatment of all motorists. We think defendants overstate the consequences. Referrals are made for the sole purpose of conducting a routine and limited inquiry into residence status that cannot feasibly be made of every motorist where the traffic is heavy. The objective intrusion of the stop and inquiry thus remains minimal. Selective referral may involve some annoyance, but it remains true that the stops should not be frightening or offensive, because of their public and relatively routine nature. Moreover, selective referrals -- rather than questioning the occupants of every car -- tend to advance some Fourth Amendment interests by minimizing the intrusion on the general motoring public.CThe defendants note correctly that, to accommodate public and private interests, some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure. [Footnote 14] See Terry v. Ohio, 392 Page 428 U. S. 561 U.S. at 392 U. S. 21, and n. 18. But the Fourth Amendment imposes no irreducible requirement of such suspicion. This is clear from Camara v. Municipal Court, 387 U. S. 523 (1967). See also Almeida-Sanchez v. United States, 413 U.S. at 413 U. S. 283-285 (POWELL, J., concurring); id. at 413 U. S. 288 (WHITE, J., dissenting); Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970); United States v. Biswell, 406 U. S. 311 (1972); Carroll v. United States, 267 U.S. at 267 U. S. 154. In Camara, the Court required an "area" warrant to support the reasonableness of inspecting private residences within a particular area for building code violations, but recognized that "specific knowledge of the condition of the particular dwelling" was not required to enter any given residence. 387 U.S. at 387 U. S. 538. In so holding, the Court examined the government interests advanced to justify such routine intrusions "upon the constitutionally protected interests of the private citizen," id. at 387 U. S. 534-535, and concluded that, under the circumstances the government interests outweighed those of the private citizen.We think the same conclusion is appropriate here, where we deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection. See, e.g., McDonald v. United States, 335 U. S. 451 (1948). As we have noted earlier, one's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence. United States v. Ortiz, 422 U.S. at 422 U. S. 896 n. 2; see Cardwell v. Lewis, 417 U. S. 583, 417 U. S. 590-591 (1974) (plurality Page 428 U. S. 562 opinion). And the reasonableness of the procedures followed in making these checkpoint stops makes the resulting intrusion on the interests of motorists minimal. On the other hand, the purpose of the stops is legitimate and in the public interest, and the need for this enforcement technique is demonstrated by the records in the cases before us. Accordingly, we hold that the stops and questioning at issue may be made in the absence of any individualized suspicion at reasonably located checkpoints. [Footnote 15] Page 428 U. S. 563We further believe that it is constitutional to refer motorists selectively to the secondary inspection area at the San Clemente checkpoint on the basis of criteria that would not sustain a roving patrol stop. Thus, even if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, [Footnote 16] we perceive no constitutional violation. Cf. United States v. Brignoni-Ponce, 422 U.S. at 422 U. S. 885-887. As the intrusion here is sufficiently minimal that no particularized reason need exist to justify it, we think it follows that the Border Patrol Page 428 U. S. 564 officers must have wide discretion in selecting the motorists to be diverted for the brief questioning involved. [Footnote 17]VSifuentes' alternative argument is that routine stops at a checkpoint are permissible only if a warrant has given judicial authorization to the particular checkpoint location and the practice of routine stops. A warrant requirement in these circumstances draws some support from Camara, where the Court held that, absent consent, an "area" warrant was required to make a building code inspection, even though the search could be conducted absent cause to believe that there were violations in the building searched. [Footnote 18]We do not think, however, that Camara is an apt Page 428 U. S. 565 model. It involved the search of private residences, for which a warrant traditionally has been required. See, e.g., McDonald v. United States, 335 U. S. 451 (1948). As developed more fully above, the strong Fourth Amendment interests that justify the warrant requirement in that context are absent here. The degree of intrusion upon privacy that may be occasioned by a search of a house hardly can be compared with the minor interference with privacy resulting from the mere stop for questioning as to residence. Moreover, the warrant requirement in Camara served specific Fourth Amendment interests to which a warrant requirement here would make little contribution. The Court there said:"[W]hen [an] inspector [without a warrant] demands entry, the occupant has no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization."387 U.S. at 387 U. S. 532. A warrant provided assurance to the occupant on these scores. We believe that the visible manifestations of the field officers' authority at a checkpoint provide substantially the same assurances in this case.Other purposes served by the requirement of a warrant also are inapplicable here. One such purpose is to prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure. Cf. United States v. Watson, 423 U. S. 411, 423 U. S. 455-456, n. 22 (1976) (MARSHALL, J., dissenting). The reasonableness of checkpoint stops, however, turns on factors such as the location and method of operation of the checkpoint, factors that are not susceptible to the distortion of hindsight, and therefore will be open to post-stop review notwithstanding Page 428 U. S. 566 the absence of a warrant. Another purpose for a warrant requirement is to substitute the judgment of the magistrate for that of the searching or seizing officer. United States v. United States District Court, 407 U. S. 297, 407 U. S. 316-318 (1972). But the need for this is reduced when the decision to "seize" is not entirely in the hands of the officer in the field, and deference is to be given to the administrative decisions of higher ranking officials.VIIn summary, we hold that stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment, and need not be authorized by warrant. [Footnote 19] The principal protection of Fourth Page 428 U. S. 567 Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop. See Terry v. Ohio, 392 U.S. at 392 U. S. 24-27; United States v. Brignoni-Ponce, 422 U.S. at 422 U. S. 881-882. We have held that checkpoint searches are constitutional only if justified by consent or probable cause to search. United States v. Ortiz, 422 U. S. 891 (1975). And our holding today is limited to the type of stops described in this opinion. "[A]ny further detention . . . must be based on consent or probable cause." United States v. Brignoni-Ponce, supra at 422 U. S. 882. None of the defendants in these cases argues that the stopping officers exceeded these limitations. Consequently, we affirm the judgment of the Court of Appeals for the Fifth Circuit, which had affirmed the conviction of Sifuentes. We reverse the judgment of the Court of Appeals for the Ninth Circuit and remand the case with directions to affirm the conviction of Martinez-Fuerte and to remand the other cases to the District Court for further proceedings.It is so ordered

U.S. Supreme CourtUnited States v. Martinez-Fuerte, 428 U.S. 543 (1976)United States v. Martinez-FuerteNo. 74-1560Argued April 26, 1976Decided July 6, 1976*428 U.S. 543Syllabus1. The Border Patrol's routine stopping of a vehicle at a permanent checkpoint located on a major highway away from the Mexican border for brief questioning of the vehicle's occupants is consistent with the Fourth Amendment, and the stops and questioning may be made at reasonably located checkpoints in the absence of any individualized suspicion that the particular vehicle contains illegal aliens. Pp. 428 U. S. 556-564.(a) To require that such stops always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car necessary to identify it as a possible carrier of illegal aliens. Such a requirement also would largely eliminate any deterrent to the conduct of well disguised smuggling operations, even though smugglers are known to use these highways regularly. Pp. 428 U. S. 556-557.(b) While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited, the interference with legitimate traffic being minimal and checkpoint operations involving less discretionary enforcement activity than roving patrol stops. Pp. 428 U. S. 557-560.(c) Under the circumstances of these checkpoint stops, which do not involve searches, the Government or public interest in making such stops outweighs the constitutionally protected interest of the private citizen. Pp. 428 U. S. 560-562.(d) With respect to the checkpoint involved in No 74-1560, it is constitutional to refer motorists selectively to a secondary inspection area for limited inquiry on the basis of criteria that would not sustain a roving patrol stop, since the intrusion is sufficiently minimal that no particularized reason need exist to justify it. Pp. 428 U. S. 563-564.2. Operation of a fixed checkpoint need not be authorized in advance by a judicial warrant. Camara v. Municipal Court, 387 Page 428 U. S. 544 U.S. 523, distinguished. The visible manifestations of the field officers' authority at a checkpoint provide assurances to motorists that the officers are acting lawfully. Moreover, the purpose of a warrant in preventing hindsight from coloring the evaluation of the reasonableness of a search or seizure is inapplicable here, since the reasonableness of checkpoint stops turns on factors such as the checkpoint's location and method of operation. These factors are not susceptible of the distortion of hindsight, and will be open to post-stop review notwithstanding the absence of a warrant. Nor is the purpose of a warrant in substituting a magistrate's judgment for that of the searching or seizing officer applicable, since the need for this is reduced when the decision to "seize" is not entirely in the hands of the field officer and deference is to be given to the administrative decisions of higher ranking officials in selecting the checkpoint locations. Pp. 428 U. S. 564-566.No. 74-1560, 514 F.2d 308, reversed and remanded; No. 75-5387, affirmed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 428 U. S. 567. Page 428 U. S. 545

1984_83-1394

JUSTICE MARSHALL delivered the opinion of the Court.The primary question presented by this appeal is whether the Constitution prevents Congress from providing that holders of unpatented mining claims who fail to comply with the annual filing requirements of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1744, shall forfeit their claims.IFrom the enactment of the general mining laws in the 19th century until 1976, those who sought to make their living by locating and developing minerals on federal lands were virtually unconstrained by the fetters of federal control. The general mining laws, 30 U.S.C. § 22 et seq., still in effect today, allow United States citizens to go onto unappropriated, unreserved public land to prospect for and develop certain minerals. "Discovery" of a mineral deposit, followed by the minimal procedures required to formally "locate" the deposit, gives an individual the right of exclusive possession of the land for mining purposes, 30 U.S.C. § 26; as long as $100 of assessment work is performed annually, the individual may continue to extract and sell minerals from the claim without paying any royalty to the United States, 30 U.S.C. § 28. For a nominal sum, and after certain statutory conditions are fulfilled, an individual may patent the claim, thereby purchasing from the Federal Government the land and minerals and obtaining ultimate title to them. Patenting, however, is not required, and an unpatented mining claim remains a fully recognized possessory interest. Best v. Humboldt Placer Mining Co., 371 U. S. 334, 371 U. S. 335 (1963).By the 1960's, it had become clear that this 19th-century laissez-faire regime had created virtual chaos with respect to the public lands. In 1975, it was estimated that more than Page 471 U. S. 87 6 million unpatented mining claims existed on public lands other than the national forests; in addition, more than half the land in the National Forest System was thought to be covered by such claims. S.Rep. No. 94-583, p. 65 (1975). Many of these claims had been dormant for decades, and many were invalid for other reasons, but in the absence of a federal recording system, no simple way existed for determining which public lands were subject to mining locations, and whether those locations were valid or invalid. Ibid. As a result, federal land managers had to proceed slowly and cautiously in taking any action affecting federal land lest the federal property rights of claimants be unlawfully disturbed. Each time the Bureau of Land Management (BLM) proposed a sale or other conveyance of federal land, a title search in the county recorder's office was necessary; if an outstanding mining claim was found, no matter how stale or apparently abandoned, formal administrative adjudication was required to determine the validity of the claim. [Footnote 1]After more than a decade of studying this problem in the context of a broader inquiry into the proper management of the public lands in the modern era, Congress in 1976 enacted FLPMA, Pub.L. 94-579, 90 Stat. 2743 (codified at 43 U.S.C. § 1701 et seq.). Section 314 of the Act establishes a federal recording system that is designed both to rid federal lands of stale mining claims and to provide federal land managers with up-to-date information that allows them to make informed land management decisions. [Footnote 2] For claims located before FLPMA's enactment, [Footnote 3] the federal recording system imposes two general requirements. Page 471 U. S. 88 First, the claims must initially be registered with the BLM by filing, within three years of FLPMA's enactment, a copy of the official record of the notice or certificate Page 471 U. S. 89 of location. 90 Stat. 2743, § 314(b), 43 U.S.C. § 1744(b). Second, in the year of the initial recording, and "prior to December 31" of every year after that, the claimant must file with state officials and with BLM a notice of intention to hold the claim, an affidavit of assessment work performed on the claim, or a detailed reporting form. 90 Stat. 2743, § 314(a), 43 U.S.C. § 1744(a). Section 314(c) of the Act provides that failure to comply with either of these requirements "shall be deemed conclusively to constitute an abandonment of the mining claim . . . by the owner." 43 U.S.C. § 1744(c).The second of these requirements -- the annual filing obligation -- has created the dispute underlying this appeal. Appellees, four individuals engaged "in the business of operating mining properties in Nevada," [Footnote 4] purchased in 1960 and 1966 10 unpatented mining claims on public lands near Ely, Nevada. These claims were major sources of gravel and building material: the claims are valued at several million dollars, [Footnote 5] and, in the 1979-1980 assessment year alone, appellees' gross income totaled more than $1 million. [Footnote 6] Throughout the period during which they owned the claims, appellees complied with annual state law filing and assessment work requirements. In addition, appellees satisfied FLPMA's initial recording requirement by properly filing with BLM a notice of location, thereby putting their claims on record for purposes of FLPMA.At the end of 1980, however, appellees failed to meet on time their first annual obligation to file with the Federal Government. After allegedly receiving misleading information from a BLM employee, [Footnote 7] appellees waited until December 31 Page 471 U. S. 90 to submit to BLM the annual notice of intent to hold or proof of assessment work performed required under § 314(a) of FLPMA, 43 U.S.C. § 1744(a). As noted above, that section requires these documents to be filed annually "prior to December 31." Had appellees checked, they further would have discovered that BLM regulations made quite clear that claimants were required to make the annual filings in the proper BLM office "on or before December 30 of each calendar year." 43 CFR § 3833.2-1(a) (1980) (current version at 43 CFR § 3833.2-1(b)(1) (1984)). Thus, appellees' filing was one day too late.This fact was brought painfully home to appellees when they received a letter from the BLM Nevada State Office informing them that their claims had been declared abandoned and void due to their tardy filing. In many cases, loss of a claim in this way would have minimal practical effect; the Page 471 U. S. 91 claimant could simply locate the same claim again and then rerecord it with BLM. In this case, however, relocation of appellees' claims, which were initially located by appellees' predecessors in 1952 and 1954, was prohibited by the Common Varieties Act of 1955, 30 U.S.C. § 611; that Act prospectively barred location of the sort of minerals yielded by appellees' claims. Appellees' mineral deposits thus escheated to the Government.After losing an administrative appeal, appellees filed the present action in the United States District Court for the District of Nevada. Their complaint alleged, inter alia, that § 314(c) effected an unconstitutional taking of their property without just compensation and denied them due process. On summary judgment, the District Court held that § 314(c) did indeed deprive appellees of the process to which they were constitutionally due. 573 F. Supp. 472 (1983). The District Court reasoned that § 314(c) created an impermissible irrebuttable presumption that claimants who failed to make a timely filing intended to abandon their claims. Rather than relying on this presumption, the Government was obliged, in the District Court's view, to provide individualized notice to claimants that their claims were in danger of being lost, followed by a post-filing-deadline hearing at which the claimants could demonstrate that they had not, in fact, abandoned a claim. Alternatively, the District Court held that the 1-day late filing "substantially complied" with the Act and regulations.Because a District Court had held an Act of Congress unconstitutional in a civil suit to which the United States was a party, we noted probable jurisdiction under 28 U.S.C. § 1252. 467 U.S. 1225 (1984). [Footnote 8] We now reverse. Page 471 U. S. 92IIAppeal under 28 U.S.C. § 1252 brings before this Court not merely the constitutional question decided below, but the entire case. McLucas v. DeChamplain, 421 U. S. 21, 421 U. S. 31 (1975); United States v. Raines, 362 U. S. 17, 362 U. S. 27, n. 7 (1960). The entire case includes nonconstitutional questions actually decided by the lower court as well as nonconstitutional grounds presented to, but not passed on, by the lower court. United States v. Clark, 445 U. S. 23, 445 U. S. 27-28 (1980). [Footnote 9] These principles are important aids in the prudential exercise of our appellate jurisdiction, for when a case arrives here by appeal under 28 U.S.C. § 1252, this Court will not pass on the constitutionality of an Act of Congress if a construction of the Act is fairly possible, or some other nonconstitutional ground fairly available, by which the constitutional question can be avoided. See Heckler v. Mathews, 465 U. S. 728, 465 U. S. 741-744 (1984); Johnson v. Robinson, 415 U. S. 361, 415 U. S. 366-367 (1974); cf. United States v. Congress of Industrial Organizations, 335 U. S. 106, 335 U. S. 110 (1948) (appeals under former Criminal Appeals Act); see generally Ashwander v. TVA, 297 U. S. 288, 297 U. S. 347 (1936) (Brandeis, J., concurring). Thus, we turn first to the nonconstitutional questions pressed below. Page 471 U. S. 93IIIABefore the District Court, appellees asserted that the § 314(a) requirement of a filing "prior to December 31 of each year" should be construed to require a filing "on or before December 31." Thus, appellees argued, their December 31 filing had in fact complied with the statute, and the BLM had acted ultra vires in voiding their claims.Although the District Court did not address this argument, the argument raises a question sufficiently legal in nature that we choose to address it even in the absence of lower court analysis. See, e.g., United States v. Clark, supra. It is clear to us that the plain language of the statute simply cannot sustain the gloss appellees would put on it. As even counsel for appellees conceded at oral argument, § 314(a) "is a statement that Congress wanted it filed by December 30th. I think that is a clear statement. . . ." Tr. of Oral Arg. 27; see also id. at 37 ("A literal reading of the statute would require a December 30th filing . . ."). While we will not allow a literal reading of a statute to produce a result "demonstrably at odds with the intentions of its drafters," Griffin v. Oceanic Contractors, Inc., 458 U. S. 564, 458 U. S. 571 (1982), with respect to filing deadlines a literal reading of Congress' words is generally the only proper reading of those words. To attempt to decide whether some date other than the one set out in the statute is the date actually "intended" by Congress is to set sail on an aimless journey, for the purpose of a filing deadline would be just as well served by nearly any date a court might choose as by the date Congress has in fact set out in the statute. "Actual purpose is sometimes unknown," United States Railroad Retirement Board v. Fritz, 449 U. S. 166, 449 U. S. 180 (1980) (STEVENS, J., concurring), and such is the case with filing deadlines; as might be expected, nothing in the legislative history suggests why Congress chose December 30 over December 31, Page 471 U. S. 94 or over September 1 (the end of the assessment year for mining claims, 30 U.S.C. § 28), as the last day on which the required filings could be made. But "[d]eadlines are inherently arbitrary," while fixed dates "are often essential to accomplish necessary results." United States v. Boyle, 469 U. S. 241, 469 U. S. 249 (1984). Faced with the inherent arbitrariness of filing deadlines, we must, at least in a civil case, apply by its terms the date fixed by the statute. Cf. United States Railroad Retirement Board v. Fritz, supra, at 449 U. S. 179. [Footnote 10]Moreover, BLM regulations have made absolutely clear since the enactment of FLPMA that "prior to December 31" means what it says. As the current version of the filing regulations states:"The owner of an unpatented mining claim located on Federal lands . . . shall have filed or caused to have been filed on or before December 30 of each calendar year . . . evidence of annual assessment work performed during the previous assessment year or a notice of intention to hold the mining claim."43 CFR § 3833.2-1(b)(1) (1984) (emphasis added). See also 43 CFR § 3833.2-1(a) (1982) (same); 43 CFR § 3833.21(a) (1981) (same); 43 CFR § 3833.2-1(a) (1980) (same); 43 CFR § 3833.2-1(a) (1979) (same); 43 CFR § 3833.2-1(a)(1) (1978) ("prior to" Dec. 31); 43 CFR § 3833.2-1(a)(1) (1977) ("prior to" Dec. 31). Leading mining treatises similarly Page 471 U. S. 95 inform claimants that"[i]t is important to note that the filing of a notice of intention or evidence of assessment work must be done prior to December 31 of each year, i.e., on or before December 30."2 American Law of Mining § 7.23D, P. 150.2 (SUPP.1983) (emphasis in original); see also 23 Rocky Mountain Mineral Law Institute 25 (1977) (same). If appellees, who were businessmen involved in the running of a major mining operation for more than 20 years, had any questions about whether a December 31 filing complied with the statute, it was incumbent upon them, as it is upon other businessmen, see United States v. Boyle, supra, to have checked the regulations or to have consulted an attorney for legal advice. Pursuit of either of these courses, rather than the submission of a last-minute filing, would surely have led appellees to the conclusion that December 30 was the last day on which they could file safely.In so saying, we are not insensitive to the problems posed by congressional reliance on the words "prior to December 31." See post p. 471 U. S. 117 (STEVENS, J., dissenting). But the fact that Congress might have acted with greater clarity or foresight does not give courts a carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do."There is a basic difference between filling a gap left by Congress' silence and rewriting rules that Congress has affirmatively and specifically enacted."Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 436 U. S. 625 (1978). Nor is the Judiciary licensed to attempt to soften the clear import of Congress' chosen words whenever a court believes those words lead to a harsh result. See Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 451 U. S. 98 (1981). On the contrary, deference to the supremacy of the Legislature, as well as recognition that Congressmen typically vote on the language of a bill, generally requires us to assume that "the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U. S. 1, 369 U. S. 9 (1962)."Going behind the plain language of a statute in search of a possibly contrary congressional intent is 'a step to Page 471 U. S. 96 be taken cautiously' even under the best of circumstances."American Tobacco Co. v. Patterson, 456 U. S. 63, 456 U. S. 75 (1982) (quoting Piper v. Chris-Craft Industries, Inc., 430 U. S. 1, 430 U. S. 26 (1977)). When even after taking this step nothing in the legislative history remotely suggests a congressional intent contrary to Congress' chosen words, and neither appellees nor the dissenters have pointed to anything that so suggests, any further steps take the courts out of the realm of interpretation and place them in the domain of legislation. The phrase "prior to" may be clumsy, but its meaning is clear. [Footnote 11] Under these circumstances, we are obligated to apply the "prior to December 31" language by its terms. See, e.g., American Tobacco Co. v. Patterson, supra, at 456 U. S. 68; Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 447 U. S. 108 (1980).The agency's regulations clarify and confirm the import of the statutory language by making clear that the annual filings must be made on or before December 30. These regulations provide a conclusive answer to appellees' claim, for where the language of a filing deadline is plain and the agency's construction completely consistent with that language, the agency's construction simply cannot be found "sufficiently unreasonable" as to be unacceptable. FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27, 454 U. S. 39 (1981).We cannot press statutory construction "to the point of disingenuous evasion" even to avoid a constitutional question. Moore Ice Cream Co. v. Rose, 289 U. S. 373, 289 U. S. 379 (1933) (Cardozo, J.). [Footnote 12] We therefore hold that BLM did not act ultra vires in concluding that appellees' filing was untimely. Page 471 U. S. 97BSection 314(c) states that failure to comply with the filing requirements of §§ 314(a) and 314(b) "shall be deemed conclusively to constitute an abandonment of the mining claim." We must next consider whether this provision expresses a congressional intent to extinguish all claims for which filings have not been made, or only those claims for which filings have not been made and for which the claimants have a specific intent to abandon the claim. The District Court adopted the latter interpretation, and on that basis concluded that § 314(c) created a constitutionally impermissible irrebuttable presumption of abandonment. The District Court reasoned that, once Congress had chosen to make loss of a claim turn on the specific intent of the claimant, a prior hearing and findings on the claimant's intent were constitutionally required before the claim of a nonfiling claimant could be extinguished.In concluding that Congress was concerned with the specific intent of the claimant even when the claimant had failed Page 471 U. S. 98 to make the required filings, the District Court began from the fact that neither § 314(c) nor the Act itself defines the term "abandonment" as that term appears in § 314(c). The District Court then noted correctly that the common law of mining traditionally has drawn a distinction between "abandonment" of a claim, which occurs only upon a showing of the claimant's intent to relinquish the claim, and "forfeiture" of a claim, for which only noncompliance with the requirements of law must be shown. See, e.g., 2 American Law of Mining § 8.2, pp.195-196 (1983) (relied upon by the District Court). Given that Congress had not expressly stated in the statute any intent to depart from the term-of-art meaning of "abandonment" at common law, the District Court concluded that § 314(c) was intended to incorporate the traditional common law distinction between abandonment and forfeiture. Thus, reasoned the District Court, Congress did not intend to cause a forfeiture of claims for which the required filings had not been made, but rather to focus on the claimant's actual intent. As a corollary, the District Court understood the failure to file to have been intended to be merely one piece of evidence in a factual inquiry into whether a claimant had a specific intent to abandon his property.This construction of the statutory scheme cannot withstand analysis. While reference to common law conceptions is often a helpful guide to interpreting open-ended or undefined statutory terms, see, e.g., NLRB v. Amax Coal Co., 453 U. S. 322, 453 U. S. 329 (1981); Standard Oil Co. v. United States, 221 U. S. 1, 221 U. S. 59 (1911), this principle is a guide to legislative intent, not a talisman of it, and the principle is not to be applied in defiance of a statute's overriding purposes and logic. Although § 314(c) is couched in terms of a conclusive presumption of "abandonment," there can be little doubt that Congress intended § 314(c) to cause a forfeiture of all claims for which the filing requirements of §§ 314(a) and 314(b) had not been met.To begin with, the Senate version of § 314(c) provided that any claim not properly recorded "shall be conclusively presumed Page 471 U. S. 99 to be abandoned and shall be void." S. 507, 94th Cong., 1st Sess., § 311 (1975). [Footnote 13] The Committee Report accompanying S. 507 repeatedly indicated that failure to comply with the filing requirements would make a claim "void." See S.Rep. No. 94-583, pp. 65, 66 (1975). The House legislation and Reports merely repeat the statutory language without offering any explanation of it, but it is clear from the Conference Committee Report that the undisputed intent of the Senate to make "void" those claims for which proper filings were not timely made was the intent of both Chambers. The Report stated: "Both the Senate bill and House amendments provided for recordation of mining claims and for extinguishment of abandoned claims." H.R.Rep. No. 94-1724, p. 62 (1976) (emphasis added).In addition, the District Court's construction fails to give effect to the "deemed conclusively" language of § 314(c). If the failure to file merely shifts the burden to the claimant to prove that he intends to keep the claim, nothing "conclusive" is achieved by § 314(c). The District Court sought to avoid this conclusion by holding that § 314(c) does extinguish automatically those claims for which initial recordings, as opposed to annual filings, have not been made; the District Court attempted to justify its distinction between initial recordings and annual filings on the ground that the dominant purpose of § 314(c) was to avoid forcing BLM to the "awesome task of searching every local title record" to establish initially a federal recording system. 573 F. Supp. at 477. Once this purpose had been satisfied by an initial recording, the primary purposes of the "deemed conclusively" language, in the District Court's view, had been met. But the clear language of § 314(c) admits of no distinction between Page 471 U. S. 100 initial recordings and annual filings: failure to do either "shall be deemed conclusively to constitute an abandonment." And the District Court's analysis of the purposes of § 314(c) is also misguided, for the annual filing requirements serve a purpose similar to that of the initial recording requirement; millions of claims undoubtedly have now been recorded, and the presence of an annual filing obligation allows BLM to keep the system established in § 314 up to date on a yearly basis. To put the burden on BLM to keep this system current through its own inquiry into the status of recorded claims would lead to a situation similar to that which led Congress initially to make the federal recording system self-executing. The purposes of a self-executing recording system are implicated similarly, if somewhat less substantially, by both the annual filing obligation and the initial recording requirement, and the District Court was not empowered to thwart these purposes or the clear language of § 314(c) by concluding that § 314(c) was actually concerned with only initial recordings.For these reasons, we find that Congress intended in § 314(c) to extinguish those claims for which timely filings were not made. Specific evidence of intent to abandon is simply made irrelevant by § 314(c); the failure to file on time, in and of itself, causes a claim to be lost. See Western Mining Council v. Watt, 643 F.2d 618, 628 (CA9 1981).CA final statutory question must be resolved before we turn to the constitutional holding of the District Court. Relying primarily on Hickel v. Oil Shale Corp., 400 U. S. 48 (1970), the District Court held that, even if the statute required a filing on or before December 30, appellees had "substantially complied" by filing on December 31. We cannot accept this view of the statute.The notion that a filing deadline can be complied with by filing sometime after the deadline falls due is, to say the Page 471 U. S. 101 least, a surprising notion, and it is a notion without limiting principle. If 1-day late filings are acceptable, 10-day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline; yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it. Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced. "Any less rigid standard would risk encouraging a lax attitude toward filing dates," United States v. Boyle, 469 U.S. at 469 U. S. 249. A filing deadline cannot be complied with, substantially or otherwise, by filing late even by one day. Hickel v. Oil Shale Corp., supra, does not support a contrary conclusion. Hickel suggested, although it did not hold, that failure to meet the annual assessment work requirements of the general mining laws, 30 U.S.C. § 28, which require that "not less than $100 worth of labor shall be performed or improvements made during each year," would not render a claim automatically void. Instead, if an individual complied substantially but not fully with the requirement, he might, under some circumstances, be able to retain possession of his claim.These suggestions in Hickel do not afford a safe haven to mine owners who fail to meet their filing obligations under any federal mining law. Failure to comply fully with the physical requirement that a certain amount of work be performed each year is significantly different from the complete failure to file on time documents that federal law commands be filed. In addition, the general mining laws at issue in Hickel do not clearly provide that a claim will be lost for failure to meet the assessment work requirements. Thus, it was open to the Court to conclude in Hickel that Congress had intended to make the assessment work requirement merely an indicium of a claimant's specific intent to retain a Page 471 U. S. 102 claim. Full compliance with the assessment work requirements would establish conclusively an intent to keep the claim, but less than full compliance would not by force of law operate to deprive the claimant of his claim. Instead, less than full compliance would subject the mine owner to a case-by-case determination of whether he nonetheless intended to keep his claim. See Hickel, supra, at 400 U. S. 56-57.In this case, the statute explicitly provides that failure to comply with the applicable filing requirements leads automatically to loss of the claim. See 471 U. S. supra. Thus, Congress has made it unnecessary to ascertain whether the individual in fact intends to abandon the claim, and there is no room to inquire whether substantial compliance is indicative of the claimant's intent -- intent is simply irrelevant if the required filings are not made. Hickel's discussion of substantial compliance is therefore inapposite to the statutory scheme at issue here. As a result, Hickel gives miners no greater latitude with filing deadlines than other individuals have. [Footnote 14] Page 471 U. S. 103IVMuch of the District Court's constitutional discussion necessarily falls with our conclusion that § 314(c) automatically deems forfeited those claims for which the required filings are not timely made. The District Court's invalidation of the statute rested heavily on the view that § 314(c) creates an "irrebuttable presumption that mining claims are abandoned if the miner fails to timely file" the required documents -- that the statute presumes a failure to file to signify a specific intent to abandon the claim. But, as we have just held, § 314(c) presumes nothing about a claimant's actual intent; the statute simply and conclusively deems such claims to be forfeited. As a forfeiture provision, § 314(c) is not subject to the individualized hearing requirement of such irrebuttable presumption cases as Vlandis v. Kline, 412 U. S. 441 (1973), or Cleveland Bd. of Education v. LaFleur, 414 U. S. 632 (1974), for there is nothing to suggest that, in enacting § 314(c), Congress was in any way concerned with whether a particular claimant's tardy filing or failure to file indicated an actual intent to abandon the claim.There are suggestions in the District Court's opinion that, even understood as a forfeiture provision, § 314(c) might be unconstitutional. We therefore go on to consider whether automatic forfeiture of a claim for failure to make annual filings is constitutionally permissible. The framework for analysis of this question, in both its substantive and procedural dimensions, is set forth by our recent decision in Texaco, Inc. v. Shot, 454 U. S. 516 (1982). There we upheld a state statute pursuant to which a severed mineral interest that had not been used for a period of 20 years automatically lapsed and reverted to the current surface owner of the property, unless the mineral owner filed a statement of Page 471 U. S. 104 claim in the county recorder's office within 2 years of the statute's passage.AUnder Texaco, we must first address the question of affirmative legislative power: whether Congress is authorized to "provide that property rights of this character shall be extinguished if their owners do not take the affirmative action required by the" statute. Id. at 454 U. S. 525. Even with respect to vested property rights, a legislature generally has the power to impose new regulatory constraints on the way in which those rights are used, or to condition their continued retention on performance of certain affirmative duties. As long as the constraint or duty imposed is a reasonable restriction designed to further legitimate legislative objectives, the legislature acts within its powers in imposing such new constraints or duties. See, e.g., Village of Euclid v. Ambler Realty, Co., 272 U. S. 365 (1926); Turner v. New York, 168 U. S. 90, 168 U. S. 94 (1897); Vance v. Vance, 108 U. S. 514, 108 U. S. 517 (1883); Terry v. Anderson, 95 U. S. 628 (1877). "[L]egislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations." Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 428 U. S. 16 (1976) (citations omitted).This power to qualify existing property rights is particularly broad with respect to the "character" of the property rights at issue here. Although owners of unpatented mining claims hold fully recognized possessory interests in their claims, see Best v. Humboldt Placer Mining Co., 371 U. S. 334, 371 U. S. 335 (1963), we have recognized that these interests are a "unique form of property." Ibid. The United States, as owner of the underlying fee title to the public domain, maintains broad powers over the terms and conditions upon which the public lands can be used, leased, and acquired. See, e.g., Kleppe v. New Mexico, 426 U. S. 529, 426 U. S. 539 (1976)."A mining location which has not gone to patent is of no higher quality and no more immune from attack and investigation Page 471 U. S. 105 than are unpatented claims under the homestead and kindred laws. If valid, it gives to the claimant certain exclusive possessory rights, and so do homestead and desert claims. But no right arises from an invalid claim of any kind. All must conform to the law under which they are initiated; otherwise, they work an unlawful private appropriation in derogation of the rights of the public."Cameron v. United States, 252 U. S. 450, 252 U. S. 460 (1920). Claimants thus must take their mineral interests with the knowledge that the Government retains substantial regulatory power over those interests. Cf. Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400, 459 U. S. 413 (1983). In addition, the property right here is the right to a flow of income from production of the claim. Similar vested economic rights are held subject to the Government's substantial power to regulate for the public good the conditions under which business is carried out and to redistribute the benefits and burdens of economic life. See, e.g., National Railroad Passenger Corporation v. Atchison, T. & S. F. R. Co., 470 U. S. 451, 470 U. S. 468-469 (1985); Usery v. Turner Elkhorn Mining Co., supra; see generally Walls v. Midland Carbon Co., 254 U. S. 300, 254 U. S. 315 (1920) ("[I]n the interest of the community, [government may] limit one [right] that others may be enjoyed").Against this background, there can be no doubt that Congress could condition initial receipt of an unpatented mining claim upon an agreement to perform annual assessment work and make annual filings. That this requirement was applied to claims already located by the time FLPMA was enacted, and thus applies to vested claims, does not alter the analysis, for any "retroactive application of [FLPMA] is supported by a legitimate legislative purpose furthered by rational means." Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717, 467 U. S. 729 (1984). The purposes of applying FLPMA's filing provisions to claims located before the Act was passed -- to rid federal lands of stale mining claims and to Page 471 U. S. 106 provide for centralized collection by federal land managers of comprehensive and up-to-date information on the status of recorded but unpatented mining claims -- are clearly legitimate. In addition, § 314(c) is a reasonable, if severe, means of furthering these goals; sanctioning with loss of their claims those claimants who fail to file provides a powerful motivation to comply with the filing requirement, while automatic invalidation for noncompliance enables federal land managers to know with certainty and ease whether a claim is currently valid. Finally, the restriction attached to the continued retention of a mining claim imposes the most minimal of burdens on claimants; they must simply file a paper once a year indicating that the required assessment work has been performed or that they intend to hold the claim. [Footnote 15] Indeed, Page 471 U. S. 107 appellees could have fully protected their interests against the effect of the statute by taking the minimal additional step of patenting the claims. As a result, Congress was well within its affirmative powers in enacting the filing requirement, in imposing the penalty of extinguishment set forth in § 314(c), and in applying the requirement and sanction to claims located before FLPMA was passed.BWe look next to the substantive effect of § 314(c) to determine whether Congress is nonetheless barred from enacting it because it works an impermissible intrusion on constitutionally protected rights. With respect to the regulation of private property, any such protection must come from the Fifth Amendment's proscription against the taking of private property without just compensation. On this point, however, Texaco is controlling: "this Court has never required [Congress] to compensate the owner for the consequences of his own neglect." 454 U.S. at 454 U. S. 530. Appellees failed to inform themselves of the proper filing deadline and failed to file in timely fashion the documents required by federal law. Their property loss was one appellees could have avoided with minimal burden; it was their failure to file on time -- not the action of Congress -- that caused the property right to be extinguished. Regulation of property rights does not "take" private property when an individual's reasonable, investment-backed expectations can continue to be realized as long as he complies with reasonable regulatory restrictions the legislature has imposed. See, e.g., Miller v. Schoene, 276 U. S. 272, 276 U. S. 279-280 (1928); Terry v. Anderson, 95 U.S. at 95 U. S. 632-633; cf. 30 U. S. Barney's Lessee, 5 Pet. 457, 30 U. S. 465 Page 471 U. S. 108 (1831) ("What right has any one to complain, when a reasonable time has been given him, if he has not been vigilant in asserting his rights?").CFinally, the Act provides appellees with all the process that is their constitutional due. In altering substantive rights through enactment of rules of general applicability, a legislature generally provides constitutionally adequate process simply by enacting the statute, publishing it, and, to the extent the statute regulates private conduct, affording those within the statute's reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements. Texaco, 454 U.S. at 454 U. S. 532; see also Anderson National Bank v. Luckett, 321 U. S. 233, 321 U. S. 243 (1944); North Laramie Land Co. v. Hoffman, 268 U. S. 276, 268 U. S. 283 (1925). Here there can be no doubt that the Act's recording provisions meet these minimal requirements. Although FLPMA was enacted in 1976, owners of existing claims, such as appellees, were not required to make an initial recording until October, 1979. This 3-year period, during which individuals could become familiar with the requirements of the new law, surpasses the 2-year grace period we upheld in the context of a similar regulation of mineral interests in Texaco. Moreover, the specific annual filing obligation at issue in this case is not triggered until the year after which the claim is recorded initially; thus, every claimant in appellees' position already has filed once before the annual filing obligations come due. That these claimants already have made one filing under the Act indicates that they know, or must be presumed to know, of the existence of the Act and of their need to inquire into its demands. [Footnote 16] The Page 471 U. S. 109 requirement of an annual filing thus was not so unlikely to come to the attention of those in the position of appellees as to render unconstitutional the notice provided by the 3-year grace period. [Footnote 17]Despite the fact that FLPMA meets the three standards laid down in Texaco for the imposition of new regulatory restraints on existing property rights, the District Court seemed to believe that individualized notice of the filing deadlines was nonetheless constitutionally required. The District Court felt that such a requirement would not be "overly burdensome" to the Government, and would be of great benefit to mining claimants. The District Court may well be right that such an individualized notice scheme would be a sound means of administering the Act. [Footnote 18] But in the regulation of private property rights, the Constitution offers the courts no warrant to inquire into whether some other scheme might be more rational or desirable than the one chosen by Congress; as long as the legislative scheme is a rational way of reaching Congress' objectives, the efficacy of alternative routes is for Congress alone to consider."It is enough to say that the Act approaches the problem of [developing a national recording system] rationally; whether a [different notice scheme] would have been wiser or more practical under the circumstances is not a question of constitutional dimension."Usery v. Turner Elkhorn Mining, 428 U.S. at 428 U. S. 19. Because we deal here with purely economic legislation, Congress was entitled to conclude that it was preferable Page 471 U. S. 110 to place a substantial portion of the burden on claimants to make the national recording system work. See ibid.; Weinberger v. Salfi, 422 U. S. 749 (1975); Mourning v. Family Publications Service, Inc., 411 U. S. 356 (1973). The District Court therefore erred in invoking the Constitution to supplant the valid administrative scheme established by Congress. The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Locke, 471 U.S. 84 (1985)United States v. LockeNo. 83-1394Argued November 6, 1984Decided April 1, 1985471 U.S. 84SyllabusSection 314 of the Federal Land Policy and Management Act of 1976 (FLPMA) establishes a federal recording system that is designed to rid federal lands of stale mining claims and to provide federal land managers with up-to-date information that allows them to make informed land management decisions. Section 314(b) requires that mining claims located prior to FLPMA's enactment be initially recorded with the Bureau of Land Management (BLM) within three years of the enactment, and § 314(a) requires that the claimant, in the year of initial recording and "prior to December 31" of every year after that, file with state officials and the BLM a notice of intention to hold a claim, an affidavit of assessment work performed on the claim, or a detailed reporting form. Section 314(c) provides that failure to comply with either of these requirements "shall be deemed conclusively to constitute an abandonment" of the claim. Appellees, who had purchased mining claims before 1976, complied with the initial recording requirement but failed to meet on time their first annual filing requirement, not filing with the BLM until December 31. Subsequently, the BLM notified appellees that their claims had been declared abandoned and void due to their tardy filing. After an unsuccessful administrative appeal, appellees filed an action in Federal District Court, alleging that § 314(c) effected an unconstitutional taking of their property without just compensation and denied them due process. The District Court issued summary judgment in appellees' favor, holding that § 314(c) created an impermissible irrebuttable presumption that claimants who fail to make a timely filing intended to abandon their claims. Alternatively, the court held that the 1-day late filing "substantially complied" with § 314(a) and the implementing regulations.Held:1. Section 314(a)'s plain language -- "prior to December 31" -- read in conjunction with BLM regulations makes clear that the annual filings must be made on or before December 30. Thus, the BLM did not act ultra vires in concluding that appellees' filing was untimely. Pp. 471 U. S. 93-96.2. Congress intended in § 314(c) to extinguish those claims for which timely filings were not made. Specific evidence of intent to abandon is made irrelevant by § 314(c); the failure to file on time, in and of itself, causes a claim to be lost. Pp. 471 U. S. 97-100. Page 471 U. S. 853. The annual filing deadline cannot be complied with, substantially or otherwise, by filing late -- even by one day. Pp. 471 U. S. 100-102.4. Section 314(c) is not unconstitutional. Pp. 471 U. S. 103-110.(a) Congress was well within its affirmative powers in enacting the filing requirement, in imposing the penalty of extinguishment in § 314(c), and in applying the requirement and sanction to claims located before FLPMA was enacted. Pp. 471 U. S. 104-107.(b) Appellees' property loss was one they could have avoided with minimal burden; it was their failure to file on time, not Congress' action, that caused their property rights to be extinguished. Regulation of property rights does not "take" private property when an individual's reasonable, investment-backed expectations can continue to be realized as long as he complies with reasonable regulations. Pp. 107-108.(c) FLPMA provides appellees with all the process that is their constitutional due. The Act's recording provisions clearly afford those within the Act's reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements. As the Act constitutes purely economic regulation, Congress was entitled to conclude that it was preferable to place a substantial portion of the burden on claimants to make the national recording system work. Pp. 108-110.573 F. Supp. 472, reversed and remanded.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 110. POWELL, J., filed a dissenting opinion, post, p. 112. STEVENS, J., filed a dissenting opinion in which BRENNAN, J., joined, post, p. 117. Page 471 U. S. 86

1991_90-8370

Michael Pescetta, by appointment of the Court, 502 U. S. 955, argued the cause for petitioner. With him on the briefs was Sarah Plotkin.Holly D. Wilkens, Deputy Attorney General of California, argued the cause for respondent. With her on the brief were Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W Schons, Senior Assistant Attorney General, and Pat Zaharopoulos, Supervising Deputy Attorney General. *JUSTICE KENNEDY delivered the opinion of the Court.It is well established that the Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial. Drope v. Missouri, 420 U. S. 162 (1975); Pate v. Robinson, 383 U. S. 375 (1966). The issue in this case is whether the Due Process Clause permits a State to require a defendant who alleges incompetence to stand trial to bear the burden of proving so by a preponderance of the evidence.IIn 1984, petitioner Teofilo Medina, Jr., stole a gun from a pawnshop in Santa Ana, California. In the weeks that followed, he held up two gas stations, a drive-in dairy, and a market, murdered three employees of those establishments, attempted to rob a fourth employee, and shot at two passersby who attempted to follow his getaway car. Petitioner was apprehended less than one month after his crime spree*Edward M. Chikofsky and William J. Rold filed a brief for the Committee on Legal Problems of the Mentally III of the Association of the Bar of the City of New York as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Paul J. Larkin, Jr.; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.440began and was charged with a number of criminal offenses, including three counts of first-degree murder. Before trial, petitioner's counsel moved for a competency hearing under Cal. Penal Code Ann. § 1368 (West 1982), on the ground that he was unsure whether petitioner had the ability to participate in the criminal proceedings against him. 1 Record 320.Under California law, "[a] person cannot be tried or adjudged to punishment while such person is mentally incompetent." Cal. Penal Code Ann. § 1367 (West 1982). A defendant is mentally incompetent "if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." Ibid. The statute establishes a presumption that the defendant is competent, and the party claiming incompetence bears the burden of proving that the defendant is incompetent by a preponderance of the evidence. § 1369(f) ("It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent").The trial court granted the motion for a hearing and the preliminary issue of petitioner's competence to stand trial was tried to a jury. Over the course of the 6-day hearing, in addition to lay testimony, the jury heard conflicting expert testimony about petitioner's mental condition. The Supreme Court of California gives this summary:"Dr. Gold, a psychiatrist who knew defendant while he was in the Arizona prison system, testified that defendant was a paranoid schizophrenic and was incompetent to assist his attorney at trial. Dr. Echeandia, a clinical psychologist at the Orange County jail, doubted the accuracy of the schizophrenia diagnosis, and could not express an opinion on defendant's competence to stand trial. Dr. Sharma, a psychiatrist, likewise expressed doubts regarding the schizophrenia diagnosis and leaned toward a finding of competence. Dr. Pierce,441a psychologist, believed defendant was schizophrenic, with impaired memory and hallucinations, but nevertheless was competent to stand trial. Dr. Sakurai, a jail psychiatrist, opined that although defendant suffered from depression, he was competent, and that he may have been malingering. Dr. Sheffield, who treated defendant for knife wounds he incurred in jail, could give no opinion on the competency issue." 51 Cal. 3d 870, 880, 799 P. 2d 1282, 1288 (1990).During the competency hearing, petitioner engaged in several verbal and physical outbursts. App. 62, 81-82; 3 Record 671, 699, 916. On one of these occasions, he overturned the counsel table. App.81-82.The trial court instructed the jury in accordance with § 1369(f) that "the defendant is presumed to be mentally competent and he has the burden of proving by a preponderance of the evidence that he is mentally incompetent as a result of mental disorder or developmental disability." App. 87. The jury found petitioner competent to stand trial. Id., at 89. A new jury was empaneled for the criminal trial, 4 Record 1020, and petitioner entered pleas of not guilty and not guilty by reason of insanity, 51 Cal. 3d, at 899, 799 P. 2d, at 1300. At the conclusion of the guilt phase, petitioner was found guilty of all three counts of first-degree murder and a number of lesser offenses. Id., at 878-879,799 P. 2d, at 1287. He moved to withdraw his insanity plea, and the trial court granted the motion. Two days later, however, petitioner moved to reinstate his insanity plea. Although his counsel expressed the view that reinstatement of the insanity plea was "tactically unsound," the trial court granted petitioner's motion. Id., at 899,799 P. 2d, at 1300-1301. A sanity hearing was held, and the jury found that petitioner was sane at the time of the offenses. At the penalty phase, the jury found that the murders were premeditated and deliberate and returned a verdict of death. The trial court imposed the death penalty for the murder convictions and sentenced442petitioner to a prison term for the remaining offenses. Id., at 878-880, 799 P. 2d, at 1287-1288.On direct appeal to the California Supreme Court, petitioner did not challenge the standard of proof set forth in § 1369(f), but argued that the statute violated his right to due process by placing the burden of proof on him to establish that he was not competent to stand trial. In addition, he argued that § 1369(f) violates due process by establishing a presumption that a defendant is competent to stand trial unless proven otherwise. The court rejected both of these contentions. Relying upon our decision in Leland v. Oregon, 343 U. S. 790 (1952), which rejected a due process challenge to an Oregon statute that required a criminal defendant to prove the defense of insanity beyond a reasonable doubt, the court observed that "the states ordinarily have great latitude to decide the proper placement of proof burdens." 51 Cal. 3d, at 884, 799 P. 2d, at 1291. In its view, § 1369(f) "does not subject the defendant to hardship or oppression," because "one might reasonably expect that the defendant and his counsel would have better access than the People to the facts relevant to the court's competency inquiry." Id., at 885, 799 P. 2d, at 1291. The court also rejected petitioner's argument that it is "irrational" to retain a presumption of competence after sufficient doubt has arisen as to a defendant's competence to warrant a hearing and "decline[d] to hold as a matter of due process that such a presumption must be treated as a mere presumption affecting the burden of production, which disappears merely because a preliminary, often undefined and indefinite, 'doubt' has arisen that justifies further inquiry into the matter." Id., at 885, 799 P. 2d, at 1291-1292. We granted certiorari, 502 U. S. 924 (1991), and now affirm.IIPetitioner argues that our decision in Mathews v. Eldridge, 424 U. S. 319 (1976), provides the proper analytical framework for determining whether California's allocation of443the burden of proof in competency hearings comports with due process. We disagree. In Mathews, we articulated a three-factor test for evaluating procedural due process claims which requires a court to consider"[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id., at 335.In our view, the Mathews balancing test does not provide the appropriate framework for assessing the validity of state procedural rules which, like the one at bar, are part of the criminal process. E. g., People v. Fields, 62 Cal. 2d 538, 542, 399 P. 2d 369, 371 (competency hearing "must be regarded as part of the proceedings in the criminal case") (internal quotation marks omitted), cert. denied, 382 U. S. 858 (1965).In the field of criminal law, we "have defined the category of infractions that violate 'fundamental fairness' very narrowly" based on the recognition that, "[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation." Dowling v. United States, 493 U. S. 342, 352 (1990); accord, United States v. Lovasco, 431 U. S. 783, 790 (1977). The Bill of Rights speaks in explicit terms to many aspects of criminal procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the Due Process Clause invites undue interference with both considered legislative judgments and the careful balance that the Constitution strikes between liberty and order. As we said in Spencer v. Texas, 385 U. S. 554, 564 (1967), "it has never been thought that [decisions under the Due Process Clause] establish this Court as a rulemaking organ for the promulgation of state rules of criminal444procedure." Accord, Estelle v. McGuire, 502 U. S. 62, 70 (1991); Marshall v. Lonberger, 459 U. S. 422, 438, n. 6 (1983).Mathews itself involved a due process challenge to the adequacy of administrative procedures established for the purpose of terminating Social Security disability benefits, and the Mathews balancing test was first conceived to address due process claims arising in the context of administrative law. Although we have since characterized the Mathews balancing test as "a general approach for testing challenged state procedures under a due process claim," Parham v. J. R., 442 U. S. 584, 599 (1979), and applied it in a variety of contexts, e. g., Santosky v. Kramer, 455 U. S. 745 (1982) (standard of proof for termination of parental rights over objection); Addington v. Texas, 441 U. S. 418 (1979) (standard of proof for involuntary civil commitment to mental hospital for indefinite period), we have invoked Mathews in resolving due process claims in criminal law cases on only two occasions.In United States v. Raddatz, 447 U. S. 667 (1980), we cited to the Mathews balancing test in rejecting a due process challenge to a provision of the Federal Magistrates Act which authorized magistrates to make findings and recommendations on motions to suppress evidence. In Ake v. Oklahoma, 470 U. S. 68 (1985), we relied upon Mathews in holding that, when an indigent capital defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, due process requires that the defendant be provided access to the assistance of a psychiatrist. Without disturbing the holdings of Raddatz and Ake, it is not at all clear that Mathews was essential to the results reached in those cases. In Raddatz, supra, at 677-681, the Court adverted to the Mathews balancing test, but did not explicitly rely upon it in conducting the due process analysis. Raddatz, supra, at 700 (Marshall, J., dissenting) ("The Court recites thee] test, but it does not even attempt to apply it"). The holding in Ake can be un-445derstood as an expansion of earlier due process cases holding that an indigent criminal defendant is entitled to the minimum assistance necessary to assure him "a fair opportunity to present his defense" and "to participate meaningfully in [the] judicial proceeding." Ake, supra, at 76.The proper analytical approach, and the one that we adopt here, is that set forth in Patterson v. New York, 432 U. S. 197 (1977), which was decided one year after Mathews. In Patterson, we rejected a due process challenge to a New York law which placed on a criminal defendant the burden of proving the affirmative defense of extreme emotional disturbance. Rather than relying upon the Mathews balancing test, however, we reasoned that a narrower inquiry was more appropriate:"It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, Irvine v. California, 347 U. S. 128, 134 (1954) (plurality opinion), and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally 'within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,' and its decision in this regard is not subject to proscription under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Speiser v. Randall, 357 U. S. 513, 523 (1958); Leland v. Oregon, 343 U. S. 790, 798 (1952); Snyder v. Massachusetts, 291 U. S. 97, 105 (1934)." Patterson v. New York, supra, at 201-202.Accord, Martin v. Ohio, 480 U. S. 228, 232 (1987). As Patterson suggests, because the States have considerable expertise in matters of criminal procedure and the criminal process is446grounded in centuries of common-law tradition, it is appropriate to exercise substantial deference to legislative judgments in this area. The analytical approach endorsed in Patterson is thus far less intrusive than that approved in Mathews.Based on our review of the historical treatment of the burden of proof in competency proceedings, the operation of the challenged rule, and our precedents, we cannot say that the allocation of the burden of proof to a criminal defendant to prove incompetence "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Patterson v. New York, supra, at 202 (internal quotation marks omitted). Historical practice is probative of whether a procedural rule can be characterized as fundamental. See 432 U. S., at 202; In re Winship, 397 U. S. 358, 361 (1970). The rule that a criminal defendant who is incompetent should not be required to stand trial has deep roots in our common-law heritage. Blackstone acknowledged that a defendant "who became 'mad' after the commission of an offense should not be arraigned for it 'because he is not able to plead to it with that advice and caution that he ought,'" and "if he became 'mad' after pleading, he should not be tried, 'for how can he make his defense?'" Drope v. Missouri, 420 U. S., at 171 (quoting 4 W. Blackstone, Commentaries *24); accord, 1 M. Hale, Pleas of the Crown *34-*35.By contrast, there is no settled tradition on the proper allocation of the burden of proof in a proceeding to determine competence. Petitioner concedes that "[t]he common law rule on this issue at the time the Constitution was adopted is not entirely clear." Brief for Petitioner 36. Early English authorities either express no view on the subject, e. g., Firth's Case (1790), 22 Howell St. Tr. 307, 311, 317-318 (1817); Kinloch's Case (1746), 18 Howell St. Tr. 395, 411 (1813), or are ambiguous. E. g., King v. Steel, 1 Leach 452, 168 Eng. Rep. 328 (1787) (stating that, once a jury had determined447that the defendant was "mute by the visitation of God" (i. e., deaf and dumb) and not "mute of malice," there arose a "presumption of ideotism" that the prosecution could rebut by demonstrating that the defendant had the capacity "to understand by signs and tokens").Nineteenth century English decisions do not take a consistent position on the allocation of the burden of proof. Compare R. v. Turton, 6 Cox C. C. 385 (1854) (burden on defendant), with R. v. Davies, 3 Carrington & Kirwan 328, 175 Eng. Rep. 575 (1853) (burden on prosecution); see generally R. v. Podola, 43 Crim. App. 220, 235-236, 3 All E. R. 418, 429-430 (1959) (collecting conflicting cases). American decisions dating from the turn of the century also express divergent views on the subject. E. g., United States v. Chisolm, 149 F.2d 4, 290 (SD Ala. 1906) (defendant bears burden of raising a reasonable doubt as to competence); State v. Helm, 69 Ark. 167, 170-171, 61 S. W. 915, 916 (1901) (burden on defendant to prove incompetence).Contemporary practice, while of limited relevance to the due process inquiry, see Martin v. Ohio, supra, at 236; Patterson v. New York, supra, at 211, demonstrates that there remains no settled view of where the burden of proof should lie. The Federal Government and all 50 States have adopted procedures that address the issue of a defendant's competence to stand trial. See 18 U. S. C. § 4241; S. Brakel, J. Parry, & B. Weiner, The Mentally Disabled and the Law, Table 12.1, pp. 744-754 (3d ed. 1985). Some States have enacted statutes that, like § 1369(f), place the burden of proof on the party raising the issue. E. g., Conn. Gen. Stat. § 5456d(b) (1991); Pa. Stat. Ann., Tit. 50, § 7403(a) (Purdon Supp. 1991). A number of state courts have said that the burden of proof may be placed on the defendant to prove incompetence. E. g., Wallace v. State, 248 Ga. 255, 258-259, 282 S. E. 2d 325, 330 (1981), cert. denied, 455 U. S. 927 (1982); State v. Aumann, 265 N. W. 2d 316, 319-320 (Iowa 1978); State v. Chapman, 104 N. M. 324, 327-328, 721 P. 2d 392, 395-396448(1986); Barber v. State, 757 S. W. 2d 359, 362-363 (Tex. Crim. App. 1988) (en bane), cert. denied, 489 U. S. 1091 (1989). Still other state courts have said that the burden rests with the prosecution. E. g., Diaz v. State, 508 A. 2d 861, 863-864 (Del. 1986); Commonwealth v. Crowley, 393 Mass. 393, 400401,471 N. E. 2d 353, 357-358 (1984); State v. Bertrand, 123 N. H. 719, 727-728, 465 A. 2d 912, 916 (1983); State v. Jones, 406 N. W. 2d 366, 369-370 (S. D. 1987).Discerning no historical basis for concluding that the allocation of the burden of proving incompetence to the defendant violates due process, we turn to consider whether the rule transgresses any recognized principle of "fundamental fairness" in operation. Dowling v. United States, 493 U. S., at 352. Respondent argues that our decision in Leland v. Oregon, 343 U. S. 790 (1952), which upheld the right of the State to place on a defendant the burden of proving the defense of insanity beyond a reasonable doubt, compels the conclusion that § 1369(f) is constitutional because, like a finding of insanity, a finding of incompetence has no necessary relationship to the elements of a crime, on which the State bears the burden of proof. See also Rivera v. Delaware, 429 U. S. 877 (1976). This analogy is not convincing, because there are significant differences between a claim of incompetence and a plea of not guilty by reason of insanity. See Drope v. Missouri, supra, at 176-177; Jackson v. Indiana, 406 U. S. 715, 739 (1972).In a competency hearing, the "emphasis is on [the defendant's] capacity to consult with counsel and to comprehend the proceedings, and ... this is by no means the same test as those which determine criminal responsibility at the time of the crime." Pate v. Robinson, 383 U. S., at 388-389 (Harlan, J., dissenting). If a defendant is incompetent, due process considerations require suspension of the criminal trial until such time, if any, that the defendant regains the capacity to participate in his defense and understand the proceedings against him. See Dusky v. United States, 362 U. S. 402449(1960) (per curiam). The entry of a plea of not guilty by reason of insanity, by contrast, presupposes that the defendant is competent to stand trial and to enter a plea. Moreover, while the Due Process Clause affords an incompetent defendant the right not to be tried, Drope v. Missouri, supra, at 172-173; Pate v. Robinson, supra, at 386, we have not said that the Constitution requires the States to recognize the insanity defense. See, e. g., Powell v. Texas, 392 U. S. 514, 536-537 (1968).Under California law, the allocation of the burden of proof to the defendant will affect competency determinations only in a narrow class of cases where the evidence is in equipoise; that is, where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent. See United States v. DiGilio, 538 F.2d 972, 988 (CA3 1976), cert. denied, 429 U. S. 1038 (1977). Our cases recognize that a defendant has a constitutional right "not to be tried while legally incompetent," and that a State's "failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair triaL" Drope v. Missouri, 420 U. S., at 172, 173. Once a State provides a defendant access to procedures for making a competency evaluation, however, we perceive no basis for holding that due process further requires the State to assume the burden of vindicating the defendant's constitutional right by persuading the trier of fact that the defendant is competent to stand trial.Petitioner relies upon federal- and state-court decisions which have said that the allocation of the burden of proof to the defendant in these circumstances is inconsistent with the rule of Pate v. Robinson, supra, at 384, where we held that a defendant whose competence is in doubt cannot be deemed to have waived his right to a competency hearing. E. g., United States v. DiGilio, supra, at 988; People v. McCullum, 66 Ill. 2d 306, 312-314, 362 N. E. 2d 307,310-311 (1977); State450v. Bertrand, supra, at 727-728, 465 A. 2d, at 916. Because " 'it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently "waive" his right to have the court determine his capacity to stand trial,'" it has been said that it is also "contradictory to argue that a defendant who may be incompetent should be presumed to possess sufficient intelligence that he will be able to adduce evidence of his incompetency which might otherwise be within his grasp." United States v. DiGilio, supra, at 988 (quoting Pate v. Robinson, supra, at 384).In our view, the question whether a defendant whose competence is in doubt may waive his right to a competency hearing is quite different from the question whether the burden of proof may be placed on the defendant once a hearing is held. The rule announced in Pate was driven by our concern that it is impossible to say whether a defendant whose competence is in doubt has made a knowing and intelligent waiver of his right to a competency hearing. Once a competency hearing is held, however, the defendant is entitled to the assistance of counsel, e. g., Estelle v. Smith, 451 U. S. 454, 469-471 (1981), and psychiatric evidence is brought to bear on the question of the defendant's mental condition, see, e. g., Cal. Penal Code Ann. §§ 1369(a), 1370 (West 1982 and Supp. 1992); see generally Brakel, Parry, & Weiner, The Mentally Disabled and the Law, at 697-698. Although an impaired defendant might be limited in his ability to assist counsel in demonstrating incompetence, the defendant's inability to assist counsel can, in and of itself, constitute probative evidence of incompetence, and defense counsel will often have the best-informed view of the defendant's ability to participate in his defense. E. g., United States v. David, 167 U. S. App. D. C. 117, 122, 511 F.2d 355, 360 (1975); United States ex rel. Roth v. Zelker, 455 F.2d 1105, 1108 (CA2), cert. denied, 408 U. S. 927 (1972). While reasonable minds may differ as to the wisdom of placing the burden of proof on the defendant in these circumstances, we believe that a State451may take such factors into account in making judgments as to the allocation of the burden of proof, and we see no basis for concluding that placing the burden on the defendant violates the principle approved in Pate.Petitioner argues that psychiatry is an inexact science, and that placing the burden of proof on the defendant violates due process because it requires the defendant to "bear the risk of being forced to stand trial as a result of an erroneous finding of competency." Brief for Petitioner 8. Our cases recognize that "[t]he subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations," because "[p]sychiatric diagnosis ... is to a large extent based on medical 'impressions' drawn from subjective analysis and filtered through the experience of the diagnostician." Addington v. Texas, 441 U. S., at 430. The Due Process Clause does not, however, require a State to adopt one procedure over another on the basis that it may produce results more favorable to the accused. See, e. g., Patterson v. New York, 432 U. S., at 208 ("Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person"); Snyder v. Massachusetts, 291 U. S. 97, 105 (1934) (a state procedure "does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar"). Consistent with our precedents, it is enough that the State affords the criminal defendant on whose behalf a plea of incompetence is asserted a reasonable opportunity to demonstrate that he is not competent to stand trial.Petitioner further contends that the burden of proof should be placed on the State because we have allocated the burden to the State on a variety of other issues that implicate a criminal defendant's constitutional rights. E. g., Colorado v. Connelly, 479 U. S. 157, 168-169 (1986) (waiver of Miranda rights); Nix v. Williams, 467 U. S. 431, 444-445, n. 5 (1984)452(inevitable discovery of evidence obtained by unlawful means); United States v. Matlock, 415 U. S. 164, 177-178, n. 14 (1974) (voluntariness of consent to search); Lego v. Twomey, 404 U. S. 477, 489 (1972) (voluntariness of confession). The decisions upon which petitioner relies, however, do not control the result here, because they involved situations where the government sought to introduce inculpatory evidence obtained by virtue of a waiver of, or in violation of, a defendant's constitutional rights. In such circumstances, allocating the burden of proof to the government furthers the objective of "deterring lawless conduct by police and prosecution." Ibid. No such purpose is served by allocating the burden of proof to the government in a competency hearing.In light of our determination that the allocation of the burden of proof to the defendant does not offend due process, it is not difficult to dispose of petitioner's challenge to the presumption of competence imposed by § 1369(f). Under California law, a defendant is required to make a threshold showing of incompetence before a hearing is required and, at the hearing, the defendant may be prevented from making decisions that are normally left to the discretion of a competent defendant. E. g., People v. Samuel, 29 Cal. 3d 489,495496, 629 P. 2d 485, 486-487 (1981). Petitioner argues that, once the trial court has expressed a doubt as to the defendant's competence, a hearing is held, and the defendant is deprived of his right to make determinations reserved to competent persons, it is irrational to retain the presumption that the defendant is competent.In rejecting this contention below, the California Supreme Court observed that "[t]he primary significance of the presumption of competence is to place on defendant (or the People, if they contest his competence) the burden of rebutting it" and that, "[b]y its terms, the presumption of competence is one which affects the burden of proof." 51 Cal. 3d, at 885, 799 P. 2d, at 1291. We see no reason to disturb the Califor-453nia Supreme Court's conclusion that, in essence, the challenged presumption is a restatement of the burden of proof, and it follows from what we have said that the presumption does not violate the Due Process Clause.Nothing in today's decision is inconsistent with our longstanding recognition that the criminal trial of an incompetent defendant violates due process. Drope v. Missouri, 420 U. S., at 172-173; Pate v. Robinson, 383 U. S., at 386; see also Riggins v. Nevada, 504 U. S. 127, 139 (1992) (KENNEDY, J., concurring in judgment). Rather, our rejection of petitioner's challenge to § 1369(f) is based on a determination that the California procedure is "constitutionally adequate" to guard against such results, Drope v. Missouri, supra, at 172, and reflects our considered view that "[t]raditionally, due process has required that only the most basic procedural safeguards be observed; more subtle balancing of society's interests against those of the accused ha[s] been left to the legislative branch," Patterson v. New York, supra, at 210.The judgment of the Supreme Court of California isAffirmed

OCTOBER TERM, 1991SyllabusMEDINA v. CALIFORNIACERTIORARI TO THE SUPREME COURT OF CALIFORNIA No. 90-8370. Argued February 25, 1992-Decided June 22,1992Before petitioner Medina's trial for, inter alia, first-degree murder, the California court granted his motion for a competency hearing pursuant to a state law that forbids a mentally incompetent person to be tried or punished, establishes a presumption of competence, and placed on petitioner the burden of proving incompetence by a preponderance of the evidence. The jury empaneled for the competency hearing found Medina competent to stand trial and, subsequently, he was convicted and sentenced to death. The State Supreme Court affirmed, rejecting Medina's claim that the competency statute's burden of proof and presumption provisions violated his right to due process.Held:1. The Due Process Clause permits a State to require that a defendant claiming incompetence to stand trial bear the burden of proving so by a preponderance of the evidence. Pp. 442-453.(a) Contrary to Medina's argument, the Mathews v. Eldridge, 424 U. S. 319, test for evaluating procedural due process claims does not provide the appropriate framework for assessing the validity of state procedural rules that are part of the criminal law process. It is not at all clear that Mathews was essential to the results in United States v. Raddatz, 447 U. S. 667, or Ake v. Oklahoma, 470 U. S. 68, the only criminal law cases in which this Court has invoked Mathews in resolving due process claims. Rather, the proper analytical approach is that set forth in Patterson v. New York, 432 U. S. 197, in which this Court held that the power of a State to regulate procedures for carrying out its criminal laws, including the burdens of producing evidence and persuasion, is not subject to proscription under the Due Process Clause unless "'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' " Id., at 201202. Pp. 442-446.(b) There is no historical basis for concluding that allocating the burden of proof to a criminal defendant to prove incompetence violates due process. While the rule that an incompetent criminal defendant should not be required to stand trial has deep roots in this country's common-law heritage, no settled tradition exists for the proper allocation of the burden of proof in a competency proceeding. Moreover, con-438Syllabustemporary practice demonstrates that there remains no settled view on where the burden should lie. Pp. 446-448.(c) Nor does the State's allocation of the burden of proof to a defendant transgress any recognized principle of "fundamental fairness" in operation. This Court's decision in Leland v. Oregon, 343 U. S. 790which upheld a State's right to place on a defendant the burden of proving the defense of insanity-does not compel the conclusion that the procedural rule at issue is constitutional, because there are significant differences between a claim of incompetence and a plea of not guilty by reason of insanity. Nonetheless, once the State has met its due process obligation of providing a defendant access to procedures for making a competency evaluation, there is no basis for requiring it to assume the burden of vindicating the defendant's constitutional right not to be tried while legally incompetent by persuading the trier of fact that the defendant is competent to stand trial. Pp. 448-449.(d) Allocating the burden to the defendant is not inconsistent with this Court's holding in Pate v. Robinson, 383 U. S. 375, 384, that a defendant whose competence is in doubt cannot be deemed to have waived his right to a competency hearing, because the question whether a defendant whose competence is in doubt can be deemed to have made a knowing and intelligent waiver is quite different from the question presented here. Although psychiatry is an inexact science and reasonable minds may differ as to the wisdom of placing the burden of proof on the defendant in these circumstances, the State is not required to adopt one procedure over another on the basis that it may produce results more favorable to the accused. In addition, the fact that the burden of proof has been allocated to the State on a variety of other issues implicating a criminal defendant's constitutional rights does not mean that the burden must be placed on the State here. Lego v. Twomey, 404 U. S. 477, 489, distinguished. Pp.449-452.2. For the same reasons discussed herein with regard to the allocation of the burden of proof, the presumption of competence does not violate due process. There is no reason to disturb the State Supreme Court's conclusion that, in essence, the challenged presumption is a restatement of that burden. Pp. 452-453.51 Cal. 3d 870, 799 P. 2d 1282, affirmed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, SCALIA, and THOMAS, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, in which SOUTER, J., joined, post, p. 453. BLACKMUN, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 456.439Full Text of Opinion

1993_93-880

street. The need for a complete buffer zone may be debatable, but some deference must be given to the state court's familiarity with the facts and the background of the dispute even under heightened review. Petitioners argued against including the factual record as an appendix in the Florida Supreme Court, and never certified a full record. This Court must therefore judge the case on the assumption that the evidence and testimony presented to the state court supported its findings that the protesters' activities near the clinic's entrance interfered with access despite the earlier injunction. Pp. 768-771.4. However, the 36-foot buffer zone as applied to the private property to the north and west of the clinic burdens more speech than necessary to protect access to the clinic. Patients and staff wishing to reach the clinic do not have to cross that property. Moreover, nothing in the record indicates that petitioners' activities on the property have obstructed clinic access, blocked vehicular traffic, or otherwise unlawfully interfered with the clinic's operation. P. 771.5. The limited noise restrictions imposed by the injunction burden no more speech than necessary to ensure the health and well-being of the clinic's patients. Noise control is particularly important around medical facilities during surgery and recovery periods. The First Amendment does not demand that patients at such a facility undertake Herculean efforts to escape the cacophony of political protests. Pp. 772-773.6. The blanket ban on "images observable" sweeps more broadly than necessary to accomplish the goals of limiting threats to clinic patients or their families and reducing the patients' level of anxiety and hypertension inside the clinic. Prohibiting the display of signs that could be interpreted as threats or veiled threats would satisfy the first goal, while a clinic could simply pull its curtains to protect a patient bothered by a disagreeable placard. P. 773.7. Absent evidence that the protesters' speech is independently proscribable (i. e., "fighting words" or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, the 300-foot no-approach zone around the clinic-and particularly its consent requirement-burdens more speech than is necessary to accomplish the goals of preventing intimidation and ensuring access to the clinic. Pp. 773-774.8. The 300-foot buffer zone around staff residences sweeps more broadly than is necessary to protect the tranquility and privacy of the home. The record does not contain sufficient justification for so broad a ban on picketing; it appears that a limitation on the time, duration of picketing, and number of pickets outside a smaller zone could have accomplished the desired results. As to the use of sound amplification equipment within the zone, however, the government may demand that756petitioners turn down the volume if the protests overwhelm the neighborhood. Pp.774-775.9. Petitioners, as named parties in the injunction, lack standing to challenge its "in concert" provision as applied to persons who are not parties. Moreover, that phrase is not subject, at petitioners' behest, to a challenge for "overbreadth." See Regal Knitwear Co. v. NLRB, 324 U. S. 9, 14-15. Nor does the "in concert" provision impermissibly burden their freedom of association. They are not enjoined from associating with others or from joining with them to express a particular viewpoint, and the First Amendment does not protect joining with others to deprive third parties of their lawful rights. Pp.775-776.626 So. 2d 664, affirmed in part and reversed in part.REHNQUIST, C. J., delivered the opinion of the Court, in which BLACKMUN, O'CONNOR, SOUTER, and GINSBURG, JJ., joined, and in which STEVENS, J., joined as to Parts I, II, III-E, and IV. SOUTER, J., filed a concurring opinion, post, p. 776. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 777. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which KENNEDY and THOMAS, JJ., joined, post, p. 784.Mathew D. Staver argued the cause for petitioners. With him on the briefs were Jeffery T. Kipi and Christopher J. Weiss.Talbot D'Alemberte argued the cause for respondents.With him on the brief was Susan England.Solicitor General Days argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Bender, Beth S. Brinkmann, Anthony J. Steinmeyer, and Jonathan R. Siegel. **Briefs of amici curiae urging reversal were filed for the American Family Association by Scott L. Thomas; for the Christian Legal Society et al. by Edward McGlynn Gaffney, Jr., Steven T. McFarland, and Victor G. Rosenblum; for Defendants Operation Rescue et al. by Jay Alan Sekulow, Walter M. Weber, Mark N. Troobnick, James M. Henderson, Sr., Thomas Patrick Monaghan, Keith A. Fournier, and John Stepanovich; for the National Right to Life Committee, Inc., by James Bopp, Jr., and Richard E. Coleson; and for the Rutherford Institute by John W Whitehead and Alexis I. Crow.Briefs of amici curiae urging affirmance were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, Ger-757CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioners challenge the constitutionality of an injunction entered by a Florida state court which prohibits antiabortion protesters from demonstrating in certain places and in various ways outside of a health clinic that performs abortions. We hold that the establishment of a 36-foot buffer zone on a public street from which demonstrators are excluded passes muster under the First Amendment, but that several other provisions of the injunction do not.IRespondents operate abortion clinics throughout central Florida. Petitioners and other groups and individuals areald B. Curington and Gypsy Bailey, Assistant Attorneys General, Eleni M. Constantine, and Richard Cordray, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, Robert A. Marks of Hawaii, Roland W Burris of Illinois, Pamela Carter of Indiana, Michael E. Carpenter of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Hubert H. Humphrey III of Minnesota, Joseph P. Mazurek of Montana, Deborah T. Poritz of New Jersey, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, G. Oliver Koppell of New York, Michael F. Easley of North Carolina, Lee Fisher of Ohio, Theodore E. Kulongoski of Oregon, Jeffrey B. Pine of Rhode Island, Charles W Burson of Tennessee, Dan Morales of Texas, Jeffrey L. Amestoy of Vermont, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the American College of Obstetricians and Gynecologists et al. by Carter G. Phillips, Joseph R. Guerra, Ann E. Allen, and Paul M. Smith; for the Center for Reproductive Law & Policy et al. by Lenora M. Lapidus; for the National Abortion Federation et al. by Elaine Metlin, Lynn I. Miller, Roger K. Evans, and Eve W Paul; for the NOW Legal Defense and Education Fund et al. by Martha F. Davis, Deborah A. Ellis, Sally F. Goldfarb, and Burt Neuborne; and for People for the American Way et al. by Joseph N. Onek, Richard McMillan, Jr., Elliot M. Mincberg, Lawrence S. Ottinger, Steven M. Freeman, Marc D. Stern, Lois C. Waldman, Richard F. Wolfson, Ronald Lindsay, Elaine R. Jones, Theodore M. Shaw, and Charles Stephen Ralston.Laurence Gold and Walter Kamiat filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae.758engaged in activities near the site of one such clinic in Melbourne, Florida. They picketed and demonstrated where the public street gives access to the clinic. In September 1992, a Florida state court permanently enjoined petitioners from blocking or interfering with public access to the clinic, and from physically abusing persons entering or leaving the clinic. Six months later, respondents sought to broaden the injunction, complaining that access to the clinic was still impeded by petitioners' activities and that such activities had also discouraged some potential patients from entering the clinic, and had deleterious physical effects on others. The trial court thereupon issued a broader injunction, which is challenged here.The court found that, despite the initial injunction, protesters continued to impede access to the clinic by congregating on the paved portion of the street-Dixie Way-leading up to the clinic, and by marching in front of the clinic's driveways. It found that as vehicles heading toward the clinic slowed to allow the protesters to move out of the way, "sidewalk counselors" would approach and attempt to give the vehicle's occupants antiabortion literature. The number of people congregating varied from a handful to 400, and the noise varied from singing and chanting to the use of loudspeakers and bullhorns.The protests, the court found, took their toll on the clinic's patients. A clinic doctor testified that, as a result of having to run such a gauntlet to enter the clinic, the patients "manifested a higher level of anxiety and hypertension causing those patients to need a higher level of sedation to undergo the surgical procedures, thereby increasing the risk associated with such procedures." App. 54. The noise produced by the protesters could be heard within the clinic, causing stress in the patients both during surgical procedures and while recuperating in the recovery rooms. And those patients who turned away because of the crowd to return at a759later date, the doctor testified, increased their health risks by reason of the delay.Doctors and clinic workers, in turn, were not immune even in their homes. Petitioners picketed in front of clinic employees' residences; shouted at passersby; rang the doorbells of neighbors and provided literature identifying the particular clinic employee as a "baby killer." Occasionally, the protesters would confront minor children of clinic employees who were home alone.This and similar testimony led the state court to conclude that its original injunction had proved insufficient "to protect the health, safety and rights of women in Brevard and Seminole County, Florida and surrounding counties seeking access to [medical and counseling] services." Id., at 5. The state court therefore amended its prior order, enjoining a broader array of activities. The amended injunction prohibits petitioners 1 from engaging in the following acts:"(1) At all times on all days, from entering the premises and property of the Aware Woman Center for Choice [the Melbourne clinic] ...."(2) At all times on all days, from blocking, impeding, inhibiting, or in any other manner obstructing or interfering with access to, ingress into and egress from any building or parking lot of the Clinic."(3) At all times on all days, from congregating, picketing, patrolling, demonstrating or entering that portion of public right-of-way or private property within [36] feet of the property line of the Clinic .... An exception to the 36 foot buffer zone is the area immediately adjacent to the Clinic on the east .... The [petitioners] ... must remain at least [5] feet from the Clinic's east line.1 In addition to petitioners, the state court's order was directed at "Operation Rescue, Operation Rescue America, Operation Goliath, their officers, agents, members, employees and servants, and ... Bruce Cadle, Pat Mahoney, Randall Terry, ... and all persons acting in concert or participation with them, or on their behalf." App. 56.760Another exception to the 36 foot buffer zone relates to the record title owners of the property to the north and west of the Clinic. The prohibition against entry into the 36 foot buffer zones does not apply to such persons and their invitees. The other prohibitions contained herein do apply, if such owners and their invitees are acting in concert with the [petitioners] ...."(4) During the hours of 7:30 a.m. through noon, on Mondays through Saturdays, during surgical procedures and recovery periods, from singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the Clinic."(5) At all times on all days, in an area within [300] feet of the Clinic, from physically approaching any person seeking the services of the Clinic unless such person indicates a desire to communicate by approaching or by inquiring of the [petitioners] ...."(6) At all times on all days, from approaching, congregating, picketing, patrolling, demonstrating or using bullhorns or other sound amplification equipment within [300] feet of the residence of any of the [respondents'] employees, staff, owners or agents, or blocking or attempting to block, barricade, or in any other manner, temporarily or otherwise, obstruct the entrances, exits or driveways of the residences of any of the [respondents'] employees, staff, owners or agents. The [petitioners] and those acting in concert with them are prohibited from inhibiting or impeding or attempting to impede, temporarily or otherwise, the free ingress or egress of persons to any street that provides the sole access to the street on which those residences are located."(7) At all times on all days, from physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, crowding or assaulting persons entering or761leaving, working at or using services at the [respondents'] Clinic or trying to gain access to, or leave, any of the homes of owners, staff or patients of the Clinic ...."(8) At all times on all days, from harassing, intimidating or physically abusing, assaulting or threatening any present or former doctor, health care professional, or other staff member, employee or volunteer who assists in providing services at the [respondents'] Clinic."(9) At all times on all days, from encouraging, inciting, or securing other persons to commit any of the prohibited acts listed herein." Operation Rescue v. Women's Health Center, Inc., 626 So. 2d 664, 679-680 (Fla. 1993).The Florida Supreme Court upheld the constitutionality of the trial court's amended injunction. 626 So. 2d 664. That court recognized that the forum at issue, which consists of public streets, sidewalks, and rights-of-way, is a traditional public forum. Id., at 671, citing Frisby v. Schultz, 487 U. S. 474, 480 (1988). It then determined that the restrictions are content neutral, and it accordingly refused to apply the heightened scrutiny dictated by Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45 (1983) (To enforce a content-based exclusion the State must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end). Instead, the court analyzed the injunction to determine whether the restrictions are "narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication." Ibid. It concluded that they were.Shortly before the Florida Supreme Court's opinion was announced, the United States Court of Appeals for the Eleventh Circuit heard a separate challenge to the same injunction. The Court of Appeals struck down the injunction, characterizing the dispute as a clash "between an actual prohibition of speech and a potential hinderance to the free exercise of abortion rights." Cheffer v. McGregor, 6 F.3d 705,762711 (1993). It stated that the asserted interests in public safety and order were already protected by other applicable laws and that these interests could be protected adequately without infringing upon the First Amendment rights of others. Ibid. The Court of Appeals found the injunction to be content based and neither necessary to serve a compelling state interest nor narrowly drawn to achieve that end. Ibid., citing Carey v. Brown, 447 U. S. 455, 461-462 (1980). We granted certiorari, 510 U. S. 1084 (1994), to resolve the conflict between the Florida Supreme Court and the Court of Appeals over the constitutionality of the state court's injunction.IIWe begin by addressing petitioners' contention that the state court's order, because it is an injunction that restricts only the speech of antiabortion protesters, is necessarily content or viewpoint based. Accordingly, they argue, we should examine the entire injunction under the strictest standard of scrutiny. See Perry Ed. Assn., supra, at 45. We disagree. To accept petitioners' claim would be to classify virtually every injunction as content or viewpoint based. An injunction, by its very nature, applies only to a particular group (or individuals) and regulates the activities, and perhaps the speech, of that group. It does so, however, because of the group's past actions in the context of a specific dispute between real parties. The parties seeking the injunction assert a violation of their rights; the court hearing the action is charged with fashioning a remedy for a specific deprivation, not with the drafting of a statute addressed to the general public.The fact that the injunction in the present case did not prohibit activities of those demonstrating in favor of abortion is justly attributable to the lack of any similar demonstrations by those in favor of abortion, and of any consequent request that their demonstrations be regulated by injunction. There is no suggestion in this record that Florida law763would not equally restrain similar conduct directed at a target having nothing to do with abortion; none of the restrictions imposed by the court were directed at the contents of petitioner's message.Our principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech "without reference to the content of the regulated speech." Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) (internal quotation marks omitted) (upholding noise regulations); R. A. 17: v. St. Paul, 505 U. S. 377, 386 (1992) ("The government may not regulate [speech] based on hostilityor favoritism-towards the underlying message expressed"); see also Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 230 (1987); Regan v. Time, Inc., 468 U. S. 641, 648649 (1984); Metromedia, Inc. v. San Diego, 453 U. S. 490, 514-515 (1981) (plurality opinion); Carey v. Brown, supra, at 466-468. We thus look to the government's purpose as the threshold consideration. Here, the state court imposed restrictions on petitioners incidental to their antiabortion message because they repeatedly violated the court's original order. That petitioners all share the same viewpoint regarding abortion does not in itself demonstrate that some invidious content- or viewpoint-based purpose motivated the issuance of the order. It suggests only that those in the group whose conduct violated the court's order happen to share the same opinion regarding abortions being performed at the clinic. In short, the fact that the injunction covered people with a particular viewpoint does not itself render the injunction content or viewpoint based. See Boos v. Barry, 485 U. S. 312 (1988).2 Accordingly, the injunction issued in2We also decline to adopt the prior restraint analysis urged by petitioners. Prior restraints do often take the form of injunctions. See, e. g., New York Times Co. v. United States, 403 U. S. 713 (1971) (refusing to enjoin publications of the "Pentagon Papers"); Vance v. Universal Amusement Co., 445 U. S. 308 (1980) (per curiam) (holding that Texas public nuisance statute which authorized state judges, on the basis of a showing764this case does not demand the level of heightened scrutiny set forth in Perry Ed. Assn., 460 U. S., at 45. And we proceed to discuss the standard which does govern.IIIIf this were a content-neutral, generally applicable statute, instead of an injunctive order, its constitutionality would be assessed under the standard set forth in Ward v. Rock Against Racism, supra, at 791, and similar cases. Given that the forum around the clinic is a traditional public forum, see Frisby v. Schultz, 487 U. S., at 480, we would determine whether the time, place, and manner regulations were "narrowly tailored to serve a significant governmental interest." Ward, supra, at 791. See also Perry Ed. Assn., supra, at 45.There are obvious differences, however, between an injunction and a generally applicable ordinance. Ordinances represent a legislative choice regarding the promotion of particular societal interests. Injunctions, by contrast, are remedies imposed for violations (or threatened violations) of a legislative or judicial decree. See United States v. W T. Grant Co., 345 U. S. 629, 632-633 (1953). Injunctions also carry greater risks of censorship and discriminatory application than do general ordinances. "[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally." Railway Express Agency, Inc. v. New York, 336that a theater had exhibited obscene films in the past, to enjoin its future exhibition of films not yet found to be obscene was unconstitutional as authorizing an invalid prior restraint). Not all injunctions that may incidentally affect expression, however, are "prior restraints" in the sense that that term was used in New York Times Co., supra, or Vance, supra. Here petitioners are not prevented from expressing their message in any one of several different ways; they are simply prohibited from expressing it within the 36-foot buffer zone. Moreover, the injunction was issued not because of the content of petitioners' expression, as was the case in New York Times Co. and Vance, but because of their prior unlawful conduct.765u. S. 106, 112-113 (1949). Injunctions, of course, have some advantages over generally applicable statutes in that they can be tailored by a trial judge to afford more precise relief than a statute where a violation of the law has already occurred. United States v. Paradise, 480 U. S. 149 (1987).We believe that these differences require a somewhat more stringent application of general First Amendment principles in this context.3 In past cases evaluating injunctions restricting speech, see, e. g., NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982), Milk Wagon Drivers v. Meadowmoor Dairies, Inc., 312 U. S. 287 (1941), we have relied upon such general principles while also seeking to ensure that the injunction was no broader than necessary to achieve its desired goals. See Carroll v. President and Comm'rs of Princess Anne, 393 U. S. 175 (1968); Claiborne Hardware, supra, at 912, n. 47. Our close attention to the fit between the objectives of an injunction and the restrictions it imposes on speech is consistent with the general rule, quite apart from First Amendment considerations, "that injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs." Califano v. Yamasaki, 442 U. S. 682, 702 (1979). See also Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 418-420 (1977). Accordingly, when evaluating a content-neutral injunction, we think that our standard time, place, and manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest. See, e. g., Claiborne Hardware, supra, at 916 (when sanctionable "conduct occurs in the context of constitutionally protected activity ... 'precision of regulation' is3 Under general equity principles, an injunction issues only if there is a showing that the defendant has violated, or imminently will violate, some provision of statutory or common law, and that there is a "cognizable danger of recurrent violation." United States v. W T. Grant Co., 345 U. S. 629, 633 (1953).766demanded") (quoting NAACP v. Button, 371 U. S. 415, 438 (1963)); 458 u. S., at 916, n. 52 (citing Carroll, supra, and Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 604 (1967)); Carroll, supra, at 183-184.Both JUSTICE STEVENS and JUSTICE SCALIA disagree with the standard we announce, for policy reasons. See post, at 778 (STEVENS, J.); post, at 792-794 (SCALIA, J.). JUSTICE STEVENS believes that "injunctive relief should be judged by a more lenient standard than legislation," because injunctions are imposed on individuals or groups who have engaged in illegal activity. Post, at 778. JUSTICE SCALIA, by contrast, believes that content-neutral injunctions are "at least as deserving of strict scrutiny as a statutory, contentbased restriction." Post, at 792. JUSTICE SCALIA bases his belief on the danger that injunctions, even though they might not "attack content as content," may be used to suppress particular ideas; that individual judges should not be trusted to impose injunctions in this context; and that an injunction is procedurally more difficult to challenge than a statute. Post, at 793-794. We believe that consideration of all of the differences and similarities between statutes and injunctions supports, as a matter of policy, the standard we apply here.JUSTICE SCALIA further contends that precedent compels the application of strict scrutiny in this case. Under that standard, we ask whether a restriction is "'necessary to serve a compelling state interest and [is] narrowly drawn to achieve that end.''' Post, at 790 (quoting Perry Ed. Assn., supra, at 45). JUSTICE SCALIA fails to cite a single case, and we are aware of none, in which we have applied this standard to a content-neutral injunction. He cites a number of cases in which we have struck down, with little or no elaboration, prior restraints on free expression. See post, at 798 (citing cases). As we have explained, however, we do not believe that this injunction constitutes a prior restraint, and we therefore believe that the "heavy presumption" against its constitutionality does not obtain here. See n. 2, supra.767JUSTICE SCALIA also relies on Claiborne Hardware and Carroll for support of his contention that our precedent requires the application of strict scrutiny in this context. In Claiborne Hardware, we stated simply that "precision of regulation" is demanded. 458 U. S., at 916 (internal quotation marks omitted). JUSTICE SCALIA reads this case to require "surgical precision" of regulation, post, at 798, but that was not the adjective chosen by the author of the Court's opinion, JUSTICE STEVENS. We think a standard requiring that an injunction "burden no more speech than necessary" exemplifies "precision of regulation." 4As for Carroll, JUSTICE SCALIA believes that the "standard" adopted in that case "is strict scrutiny," which "does not remotely resemble the Court's new proposal." Post, at 799. Comparison of the language used in Carroll and the wording of the standard we adopt, however, belies JUSTICE SCALIA'S exaggerated contention. Carroll, for example, requires that an injunction be "couched in the narrowest terms that will accomplish the pin-pointed objective" of the injunction. 393 U. S., at 183. We require that the injunction "burden no more speech than necessary" to accomplish its objective. We fail to see a difference between the two standards.The Florida Supreme Court concluded that numerous significant government interests are protected by the injunction. It noted that the State has a strong interest in protecting a woman's freedom to seek lawful medical or counseling services in connection with her pregnancy. See4 In stating that "precision of regulation" is required in Claiborne Hardware, moreover, we cited both to Carroll v. President and Comm'rs of Princess Anne, 393 U. S. 175 (1968), a case involving an injunction, and to Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967), a case involving a state statute and regulations. If our precedent demanded the different treatment of statutes and injunctions, as JUSTICE SCALIA claims, it is difficult to explain our reliance on Keyishian in Claiborne.768Roe v. Wade, 410 U. S. 113 (1973); In re T. W, 551 So. 2d 1186, 1193 (Fla. 1989). The State also has a strong interest in ensuring the public safety and order, in promoting the free flow of traffic on public streets and sidewalks, and in protecting the property rights of all its citizens. 626 So. 2d, at 672. In addition, the court believed that the State's strong interest in residential privacy, acknowledged in Frisby v. Schultz, 487 U. S. 474 (1988), applied by analogy to medical privacy. 626 So. 2d, at 672. The court observed that while targeted picketing of the home threatens the psychological well-being of the "captive" resident, targeted picketing of a hospital or clinic threatens not only the psychological, but also the physical, well-being of the patient held "captive" by medical circumstance. Id., at 673. We agree with the Supreme Court of Florida that the combination of these governmental interests is quite sufficient to justify an appropriately tailored injunction to protect them. We now examine each contested provision of the injunction to see if it burdens more speech than necessary to accomplish its goal. 5A 1We begin with the 36-foot buffer zone. The state court prohibited petitioners from "congregating, picketing, patrolling, demonstrating or entering" any portion of the public right-of-way or private property within 36 feet of the property line of the clinic as a way of ensuring access to the clinic. This speech-free buffer zone requires that petitioners move5 Petitioners do not challenge the first two provisions of the state court's 1993 order. Brief for Petitioners 9. The provisions composed what had been the state court's 1992 permanent injunction and they chiefly addressed blocking, impeding, and inhibiting access to the clinic and its parking lot. Nor do petitioners challenge the restrictions in paragraphs 7, 8, and 9, which prohibit them from harassing and physically abusing clinic doctors, staff, and patients trying to gain access to the clinic or their homes.769to the other side of Dixie Way and away from the driveway of the clinic, where the state court found that they repeatedly had interfered with the free access of patients and staff. App. to Pet. for Cert. B-2, B-3. See Cameron v. Johnson, 390 U. S. 611 (1968) (upholding statute that prohibited picketing that obstructed or unreasonably interfered with ingress or egress to or from public buildings, including courthouses, and with traffic on the adjacent street sidewalks). The buffer zone also applies to private property to the north and west of the clinic property. We examine each portion of the buffer zone separately.We have noted a distinction between the type of focused picketing banned from the buffer zone and the type of generally disseminated communication that cannot be completely banned in public places, such as handbilling and solicitation. See Frisby, supra, at 486 ("The type of focused picketing prohibited by [the state court injunction] is fundamentally different from more generally directed means of communication that may not be completely banned in [public places]"). Here the picketing is directed primarily at patients and staff of the clinic.The 36-foot buffer zone protecting the entrances to the clinic and the parking lot is a means of protecting unfettered ingress to and egress from the clinic, and ensuring that petitioners do not block traffic on Dixie Way. The state court seems to have had few other options to protect access given the narrow confines around the clinic. As the Florida Supreme Court noted, Dixie Way is only 21 feet wide in the area of the clinic. App. 260, 305. The state court was convinced that allowing petitioners to remain on the clinic's sidewalk and driveway was not a viable option in view of the failure of the first injunction to protect access. And allowing the petitioners to stand in the middle of Dixie Way would obviously block vehicular traffic.The need for a complete buffer zone near the clinic entrances and driveway may be debatable, but some deference770must be given to the state court's familiarity with the facts and the background of the dispute between the parties even under our heightened review. Milk Wagon Drivers, 312 U. S., at 294. Moreover, one of petitioners' witnesses during the evidentiary hearing before the state court conceded that the buffer zone was narrow enough to place petitioners at a distance of no greater than 10 to 12 feet from cars approaching and leaving the clinic. App. 486. Protesters standing across the narrow street from the clinic can still be seen and heard from the clinic parking lots. Id., at 260,305. We also bear in mind the fact that the state court originally issued a much narrower injunction, providing no buffer zone, and that this order did not succeed in protecting access to the clinic. The failure of the first order to accomplish its purpose may be taken into consideration in evaluating the constitutionality of the broader order. National Soc. of Professional Engineers v. United States, 435 U. S. 679, 697-698 (1978). On balance, we hold that the 36-foot buffer zone around the clinic entrances and driveway burdens no more speech than necessary to accomplish the governmental interest at stake.JUSTICE SCALIA'S dissent argues that a videotape made of demonstrations at the clinic represents "what one must presume to be the worst of the activity justifying the injunction." Post, at 785-786. This seems to us a gratuitous assumption. The videotape was indeed introduced by respondents, presumably because they thought it supported their request for the second injunction. But witnesses also testified as to relevant facts in a 3-day evidentiary hearing, and the state court was therefore not limited to JUSTICE SCALIA'S rendition of what he saw on the videotape to make its findings in support of the second injunction. Indeed, petitioners themselves studiously refrained from challenging the factual basis for the injunction both in the state courts and here. Before the Florida Supreme Court, petitioners stated that "the Amended Permanent Injunction contains fundamental error on its face. The sole question presented771by this appeal is a question of law, and for purposes of this appeal [petitioners] are assuming, arguendo, that a factual basis exists to grant injunctive relief." Appellants' Motion in Response to Appellees' Motion to Require Full Transcript and Record of Proceedings in No. 93-00969 (Dist. Ct. App. Fla.), p. 2. Petitioners argued against including the factual record as an appendix in the Florida Supreme Court, and never certified a full record. We must therefore judge this case on the assumption that the evidence and testimony presented to the state court supported its findings that the presence of protesters standing, marching, and demonstrating near the clinic's entrance interfered with ingress to and egress from the clinic despite the issuance of the earlier injunction.2The inclusion of private property on the back and side of the clinic in the 36-foot buffer zone raises different concerns. The accepted purpose of the buffer zone is to protect access to the clinic and to facilitate the orderly flow of traffic on Dixie Way. Patients and staff wishing to reach the clinic do not have to cross the private property abutting the clinic property on the north and west, and nothing in the record indicates that petitioners' activities on the private property have obstructed access to the clinic. Nor was evidence presented that protestors located on the private property blocked vehicular traffic on Dixie Way. Absent evidence that petitioners standing on the private property have obstructed access to the clinic, blocked vehicular traffic, or otherwise unlawfully interfered with the clinic's operation, this portion of the buffer zone fails to serve the significant government interests relied on by the Florida Supreme Court. We hold that on the record before us the 36-foot buffer zone as applied to the private property to the north and west of the clinic burdens more speech than necessary to protect access to the clinic.772BIn response to high noise levels outside the clinic, the state court restrained the petitioners from "singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds or images observable to or within earshot of the patients inside the [c]linic" during the hours of 7:30 a.m. through noon on Mondays through Saturdays. We must, of course, take account of the place to which the regulations apply in determining whether these restrictions burden more speech than necessary. We have upheld similar noise restrictions in the past, and as we noted in upholding a local noise ordinance around public schools, "the nature of a place, 'the pattern of its normal activities, dictate the kinds of regulations ... that are reasonable.'" Grayned v. City of Rockford, 408 U. S. 104, 116 (1972). Noise control is particularly important around hospitals and medical facilities during surgery and recovery periods, and in evaluating another injunction involving a medical facility, we stated:"'Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day's activity, and where the patient and his family ... need a restful, uncluttered, relaxing, and helpful atmosphere.'" NLRB v. Baptist Hospital, Inc., 442 U. S. 773, 783-784, n. 12 (1979), quoting Beth Israel Hospital v. NLRB, 437 U. S. 483, 509 (1978) (BLACKMUN, J., concurring in judgment).We hold that the limited noise restrictions imposed by the state court order burden no more speech than necessary to ensure the health and well-being of the patients at the clinic. The First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the773cacophony of political protests. "If overamplified loudspeakers assault the citizenry, government may turn them down." Grayned, supra, at 116. That is what the state court did here, and we hold that its action was proper.CThe same, however, cannot be said for the "images observable" provision of the state court's order. Clearly, threats to patients or their families, however communicated, are proscribable under the First Amendment. But rather than prohibiting the display of signs that could be interpreted as threats or veiled threats, the state court issued a blanket ban on all "images observable." This broad prohibition on all "images observable" burdens more speech than necessary to achieve the purpose of limiting threats to clinic patients or their families. Similarly, if the blanket ban on "images observable" was intended to reduce the level of anxiety and hypertension suffered by the patients inside the clinic, it would still fail. The only plausible reason a patient would be bothered by "images observable" inside the clinic would be if the patient found the expression contained in such images disagreeable. But it is much easier for the clinic to pull its curtains than for a patient to stop up her ears, and no more is required to avoid seeing placards through the windows of the clinic. This provision of the injunction violates the First Amendment.DThe state court ordered that petitioners refrain from physically approaching any person seeking services of the clinic "unless such person indicates a desire to communicate" in an area within 300 feet of the clinic. The state court was attempting to prevent clinic patients and staff from being "stalked" or "shadowed" by the petitioners as they approached the clinic. See International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U. S. 672, 684 (1992) ("[F]aceto-face solicitation presents risks of duress that are an appro-774priate target of regulation. The skillful, and unprincipled, solicitor can target the most vulnerable, including those accompanying children or those suffering physical impairment and who cannot easily avoid the solicitation").But it is difficult, indeed, to justify a prohibition on all uninvited approaches of persons seeking the services of the clinic, regardless of how peaceful the contact may be, without burdening more speech than necessary to prevent intimidation and to ensure access to the clinic. Absent evidence that the protesters' speech is independently proscribable (i. e., "fighting words" or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm, see Milk Wagon Drivers, 312 U. S., at 292-293, this provision cannot stand. "As a general matter, we have indicated that in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment." Boos v. Barry, 485 U. S., at 322 (internal quotation marks omitted). The "consent" requirement alone invalidates this provision; it burdens more speech than is necessary to prevent intimidation and to ensure access to the clinic.6EThe final substantive regulation challenged by petitioners relates to a prohibition against picketing, demonstrating, or using sound amplification equipment within 300 feet of the residences of clinic staff. The prohibition also covers impeding access to streets that provide the sole access to streets on which those residences are located. The same analysis applies to the use of sound amplification equipment here as that discussed above: the government may simply demand that petitioners turn down the volume if the protests overwhelm the neighborhood. Grayned, 408 U. S., at 116.6We need not decide whether the "images observable" and "noapproach" provisions are content based.775As for the picketing, our prior decision upholding a law banning targeted residential picketing remarked on the unique nature of the home, as "'the last citadel of the tired, the weary, and the sick.'" Frisby, 487 U. S., at 484. We stated that "'[t]he State's interest in protecting the wellbeing, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.'" Ibid.But the 300-foot zone around the residences in this case is much larger than the zone provided for in the ordinance which we approved in Frisby. The ordinance at issue there made it "'unlawful for any person to engage in picketing before or about the residence or dwelling of any individual.'" Id., at 477. The prohibition was limited to "focused picketing taking place solely in front of a particular residence." Id., at 483. By contrast, the 300-foot zone would ban "[g]eneral marching through residential neighborhoods, or even walking a route in front of an entire block of houses." Ibid. The record before us does not contain sufficient justification for this broad a ban on picketing; it appears that a limitation on the time, duration of picketing, and number of pickets outside a smaller zone could have accomplished the desired result.IVPetitioners also challenge the state court's order as being vague and overbroad. They object to the portion of the injunction making it applicable to those acting "in concert" with the named parties. But petitioners themselves are named parties in the order, and they therefore lack standing to challenge a portion of the order applying to persons who are not parties. Nor is that phrase subject, at the behest of petitioners, to a challenge for "overbreadth"; the phrase itself does not prohibit any conduct, but is simply directed at unnamed parties who might later be found to be acting "in concert" with the named parties. As such, the case is governed by our holding in Regal Knitwear Co. v. NLRB, 324 U. S. 9, 14 (1945). There a party subject to an injunction776argued that the order was invalid because of a provision that it applied to "successors and assigns" of the enjoined party. Noting that the party pressing the claim was not a successor or assign, we characterized the matter as "an abstract controversy over the use of these words." Id., at 15.Petitioners also contend that the "in concert" provision of the injunction impermissibly limits their freedom of association guaranteed by the First Amendment. See, e. g., Citizens Against Rent Control/Coalition For Fair Housing v. Berkeley, 454 U. S. 290 (1981). But petitioners are not enjoined from associating with others or from joining with them to express a particular viewpoint. The freedom of association protected by the First Amendment does not extend to joining with others for the purpose of depriving third parties of their lawful rights.vIn sum, we uphold the noise restrictions and the 36-foot buffer zone around the clinic entrances and driveway because they burden no more speech than necessary to eliminate the unlawful conduct targeted by the state court's injunction. We strike down as unconstitutional the 36-foot buffer zone as applied to the private property to the north and west of the clinic, the "images observable" provision, the 300-foot no-approach zone around the clinic, and the 300-foot buffer zone around the residences, because these provisions sweep more broadly than necessary to accomplish the permissible goals of the injunction. Accordingly, the judgment of the Florida Supreme Court isAffirmed

OCTOBER TERM, 1993SyllabusMADSEN ET AL. v. WOMEN'S HEALTH CENTER, INC., ET AL.CERTIORARI TO THE SUPREME COURT OF FLORIDA No. 93-880. Argued April 28, 1994-Decided June 30,1994After petitioners and other antiabortion protesters threatened to picket and demonstrate around a Florida abortion clinic, a state court permanently enjoined petitioners from blocking or interfering with public access to the clinic, and from physically abusing persons entering or leaving it. Later, when respondent clinic operators sought to broaden the injunction, the court found that access to the clinic was still being impeded, that petitioners' activities were having deleterious physical effects on patients and discouraging some potential patients from entering the clinic, and that doctors and clinic workers were being subjected to protests at their homes. Accordingly, the court issued an amended injunction, which applies to petitioners and persons acting "in concert" with them, and which, inter alia, excludes demonstrators from a 36-foot buffer zone around the clinic entrances and driveway and the private property to the north and west of the clinic; restricts excessive noisemaking within the earshot of, and the use of "images observable" by, patients inside the clinic; prohibits protesters within a 300-foot zone around the clinic from approaching patients and potential patients who do not consent to talk; and creates a 300-foot buffer zone around the residences of clinic staff. In upholding the amended injunction against petitioners' claim that it violated their First Amendment right to freedom of speech, the Florida Supreme Court recognized that the forum at issue is a traditional public forum; refused to apply the heightened scrutiny dictated by Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37, 45, because the injunction's restrictions are content neutral; and concluded that the restrictions were narrowly tailored to serve a significant government interest and left open ample alternative channels of communication, see ibid.Held:1. The injunction at issue is not subject to heightened scrutiny as content or viewpoint based simply because it restricts only the speech of antiabortion protesters. To accept petitioners' claim to the contrary would be to classify virtually every injunction as content based. An injunction, by its very nature, does not address the general public, but applies only to particular parties, regulating their activities, and perhaps their speech, because of their past actions in the context of a spe-754cific dispute. The fact that this injunction did not prohibit activities by persons demonstrating in favor of abortion is justly attributable to the lack of such demonstrations and of any consequent request for relief. Moreover, none of the restrictions at issue were directed at the content of petitioners' antiabortion message. The principal inquiry in determining content neutrality is whether the government has regulated speech without reference to its content. See, e. g., Ward v. Rock Against Racism, 491 U. S. 781, 791. The government's purpose is therefore the threshold consideration. Here, the injunction imposed incidental restrictions on petitioners' message because they repeatedly violated the original injunction. That the injunction covers people who all share the same viewpoint suggests only that those in the group whose conduct violated the court's order happen to share that viewpoint. Pp. 762-764.2. In evaluating a content-neutral injunction, the governing standard is whether the injunction's challenged provisions burden no more speech than necessary to serve a significant government interest. See, e. g., Carroll v. President and Comm'rs of Princess Anne, 393 U. S. 175, 184. Thus, the injunction must be couched in the narrowest terms that will accomplish its pinpointed objective. See id., at 183. Although the forum around the clinic is a traditional public forum, the obvious differences between a generally applicable ordinance-which represents a legislative choice to promote particular societal interests-and an injunction-which remedies an actual or threatened violation of a legislative or judicial decree, and carries greater risks of censorship and discriminatory application than an ordinance, but can be tailored to afford greater relief where a violation of law has already occurred-require a somewhat more stringent application of general First Amendment principles in this context than traditional time, place, and manner analysis allows. The combination of the governmental interests identified by the Florida Supreme Court-protecting a pregnant woman's freedom to seek lawful medical or counseling services, ensuring public safety and order, promoting the free flow of traffic on public streets and sidewalks, protecting citizens' property rights, and assuring residential privacyis quite sufficient to justify an appropriately tailored injunction. Pp. 764-768.3. Given the focus of the picketing on patients and clinic staff, the narrowness of the confines around the clinic, the fact that protesters could still be seen and heard from the clinic parking lots, and the failure of the first injunction to accomplish its purpose, the 36-foot buffer zone around the clinic entrances and driveway, on balance, burdens no more speech than necessary to accomplish the governmental interests in protecting access to the clinic and facilitating an orderly traffic flow on the755Full Text of Opinion

1972_72-624

MR. JUSTICE BRENNAN delivered the opinion of the Court.We review here the reversal by the Court of Appeals for the Third Circuit of respondent's conviction for violation of § 13 [Footnote 1] of the Rivers and Harbors Act of 1899, Page 411 U. S. 657 30 Stat. 112, 33 U.S.C. § 407. Two questions are presented. The first is whether the Government may prosecute an alleged polluter under § 13 in the absence of the promulgation of a formal regulatory permit program by the Secretary of the Army. [Footnote 2] The second is whether, if the prosecution is maintainable despite the nonexistence of a formal regulatory permit program, this respondent was entitled to assert as a defense its alleged reliance on the Army Corps of Engineers' longstanding administrative construction of § 13 as limited to water deposits that impede or obstruct navigation.On April 6, 1971, the United States filed a criminal information against the respondent, Pennsylvania Industrial Page 411 U. S. 658 Chemical Corp. (PICCO), alleging that, on four separate occasions in August, 1970, the corporation had discharged industrial refuse matters [Footnote 3] into the Monongahela River [Footnote 4] in violation of § 13 of the 1899 Act. By its terms, § 13 [Footnote 5] prohibits the discharge or deposit into navigable waters of"any refuse matter of any kind of description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state."The second proviso to § 13 provides, however, that "the Secretary of the Army . . . may permit the deposit" [Footnote 6] of refuse matter deemed by the Army Corps of Engineers not to be injurious to navigation, "provided application is made to [the Secretary] prior to depositing such material. . . ." [Footnote 7] At trial, it was stipulated that PICCO operated a manufacturing plant on the bank Page 411 U. S. 659 of the Monongahela River, that PICCO-owned concrete and iron pipes discharged the refuse matter into the river, and that PICCO had not obtained a permit from the Secretary of the Army prior to the discharges in question. PICCO argued, however, that the discharges did not violate § 13 because (1) the liquid solution flowing from its pipes was "sewage" exempt from the statutory proscription; (2) the discharge did not constitute "refuse matter" within the meaning of § 13 because it was not matter that would "impede navigation"; and (3) the term "refuse" as used in § 13 must be defined in light of the water quality standards established pursuant to the Water Pollution Control Act of 1948 and its amendments. [Footnote 8] In addition, PICCO sought to introduce evidence to show that its failure to obtain a § 13 permit was excusable in this instance because, prior to December, 1970, [Footnote 9] the Army Corps of Engineers had not established a formal program for issuing permits under § 13 and, moreover, because the Corps consistently construed § 13 as limited to those deposits that would impede or obstruct navigation, thereby affirmatively misleading PICCO into believing that a § 13 permit was not required as a condition to Page 411 U. S. 660 discharges of matter involved in this case. The District Court rejected each of PICCO's arguments as to the scope and meaning of § 13, disallowed PICCO's offers of proof on the ground that they were not relevant to the issue of guilt under § 13, and instructed the jury accordingly. PICCO was convicted on all four counts and assessed the maximum fine of $2,500 on each count. 329 F. Supp. 1118 (WD Pa.1971).On appeal, the Court of Appeals for the Third Circuit affirmed the District Court's holdings as to the application of § 13 to the matter discharged by PICCO into the river, [Footnote 10] but rejected the District Court's conclusion that the § 13 prohibition was operative in the absence of formalized permit procedures. 461 F.2d 468 (CA3 1972). The Court of Appeals reasoned that this interpretation was tantamount to reading § 13 to be an absolute prohibition against the deposit of any "foreign substance" into the navigable waters of the country, and this would have had such a "drastic impact . . . on the nation's economy even in 1899," id. at 473, that this interpretation could not reasonably be imputed to Congress. Instead, the Court of Appeals concluded that Congress intended to condition enforcement of § 13 on the creation and operation of an administrative permit program. The Court of Appeals stated:"Congress contemplated a regulatory program pursuant to which persons in PICCO's position would be able to discharge industrial refuse at the discretion of the Secretary of the Army. It intended criminal penalties for those who failed to comply with this regulatory program. Congress did not, however, intend criminal penalties for people who Page 411 U. S. 661 failed to comply with a nonexistent regulatory program."Id. at 475.The Court of Appeals seems to have found support for this interpretation of § 13 in "Congress' subsequent enactments in the water quality field." Id. at 473. The court stated that"[t]here would appear to be something fundamentally inconsistent between the program of developing and enforcing water quality standards under the Water Quality Act and section 407 of the Rivers and Harbors Act [§ 13] if the effect of the latter is to prohibit all discharges of industrial waste into navigable waters."Ibid. As it viewed the matter, "[w]hat makes the two statutes compatible is the permit program contemplated by Section 13." Ibid. Accordingly, the Court of Appeals held that it was error for the District Court to have refused PICCO the opportunity to prove the nonexistence of a formal permit program at the time of the alleged offenses.As an alternative ground for reversal, a majority of the Court of Appeals held that the District Court erred in disallowing PICCO's offer of proof that it had been affirmatively misled by the Corps of Engineers into believing that it was not necessary to obtain a § 13 permit for the discharge of industrial effluents such as those involved in this case. If such facts were true, the Court of Appeals stated, it would be fundamentally unfair to allow PICCO's conviction to stand.Thus, the Court of Appeals set aside PICCO's conviction and remanded the case to the District Court to give PICCO an opportunity to present the proffered proofs that had been disallowed by the District Court.We granted the Government's petition for certiorari. 409 U.S. 1074 (1972). We agree with the Court of Appeals that the District Court's judgment of conviction must be reversed, but we cannot agree with the Court of Appeals' interpretation of § 13 as foreclosing Page 411 U. S. 662 prosecution in the absence of the existence of a formal regulatory permit program.ISection 13 creates two separate offenses: the discharge or deposit of "any refuse matter" into navigable waters (with the streets-and-sewers exception); and the deposit of "material of any kind" on the bank of any navigable waterway or tributary where it might be washed into the water and thereby impede or obstruct navigation. La Merced, 84 F.2d 444, 445 (CA9, 1936); United States v. Consolidation Coal Co., 354 F. Supp. 173, 175 (ND W.Va.1973). The second proviso to § 13 authorizes the Secretary of the Army to exempt certain water deposits from the prohibitions of § 13, "provided application is made to him prior to depositing such material." In exercising that authority, the proviso requires the Secretary to rely on the judgment of the Chief of Engineers that anchorage and navigation will not be injured by such deposits. But, even in a situation where the Chief of Engineers concedes that a certain deposit will not injure anchorage and navigation, the Secretary need not necessarily permit the deposit, for the proviso makes the Secretary's authority discretionary -- i.e., it provides that the Secretary "may permit" the deposit. The proviso further requires that permits issued by the Secretary are to prescribe limits and conditions any violation of which is unlawful. It is crucial to our inquiry, however, that neither the proviso nor any other provision of the statute requires that the Secretary prescribe general regulations or set criteria governing issuance of permits.Thus, while nothing in § 13 precludes the establishment of a formal regulatory program by the Secretary, it is equally clear that nothing in the section requires the establishment of such a program as a condition to rendering § 13 operative. United States v. Granite State Packing Page 411 U. S. 663 Co., 470 F.2d 303, 304 (CA1 1972). In contrast, other provisions of the Rivers and Harbors Act of 1899 [Footnote 11] do include a requirement for regulations. Consequently, we disagree with the Court of Appeals that § 13 itself precludes prosecution for violation of its provisions in the absence of a formal regulatory permit program.Similarly, there is nothing in the legislative history of § 13 that supports the conclusion of the Court of Appeals that such a requirement is to be read into the section. Section 13 is one section of a comprehensive law enacted in 1899 to codify preexisting statutes designed to protect and preserve our Nation's navigable waterways. United States v. Standard Oil Co., 384 U. S. 224, 384 U. S. 226 (1966).The history of the 1899 Act begins with this Court's decision in 1888 in Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1. The Court there held that there was no federal common law prohibiting obstructions and nuisances in navigable waters. In response to that decision, Congress passed a series of laws that were later reenacted as the Rivers and Harbors Act of 1899. Section 6 of the first such law, the Rivers and Harbors Act of 1890, provided in part:"That it shall not be lawful to cast, throw, empty, or unlade, or cause, suffer, or procure to be cast, thrown, emptied, or unladen, either from or out of any ship, vessel, lighter, barge, boat, or other craft, or from the shore, pier, wharf, furnace, manufacturing establishments, or mills of any kind whatever, Page 411 U. S. 664 any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, slag, cinders, ashes, refuse, or other waste of any kind, into any port, road, roadstead, harbor, haven, navigable river, or navigable waters of the United States which shall tend to impede or obstruct navigation, or to deposit or place or cause, suffer, or procure to be deposited or placed, any ballast, stone, slate, gravel, earth, rubbish, wreck, filth, slabs, edgings, sawdust, or other waste in any place or situation on the bank of any navigable waters where the same shall be liable to be washed into such navigable waters, either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend or be construed to extend . . . to prevent the depositing of any substance above mentioned under a permit from the Secretary of War, which he is hereby authorized to grant, in any place designated by him where navigation will not be obstructed thereby."26 Stat. 453. Four years later, Congress enacted the Rivers and Harbors Act of 1894. Section 6 of that Act provided in part:"That it shall not be lawful to place, discharge, or deposit, by any process or in any manner, ballast, refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind other than that flowing from streets, sewers, and passing therefrom in a liquid state, in the waters of any harbor or river of the United States, for the improvement of which money has been appropriated by Congress, elsewhere than within the limits defined and permitted by the Secretary of War; neither shall it be lawful for any person or persons to move, destroy, or injure in any manner whatever any sea wall, Page 411 U. S. 665 bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, in whole or in part, for the preservation and improvement of any of its navigable waters, or to prevent floods, or as boundary marks, tide gauges, surveying stations, buoys, or other established marks. . . ."28 Stat. 363. [Footnote 12]In 1896, Congress commissioned the Secretary of War to compile the various acts protecting navigable waters and"to submit the same to Congress . . . together with such recommendation as to revision, emendation, or enlargement of the said laws as, in his judgment, will be advantageous to the public interest. [Footnote 13]"The Secretary, in turn, delegated the task to the Chief of Engineers, and in February, 1897, the Chief of Engineers delivered a draft proposal to the Secretary together with a cover letter that read in part:"I have the honor to submit herewith (1) a compilation [of the various existing laws protecting navigable waters] and (2) a draft of an act embodying such revision and enlargement of the aforesaid laws as the experience of this office has shown to be advantageous to the public interest. [Footnote 14]"In his compilation, the Chief of Engineers combined the essentials of § 6 of the 1890 Act and of § 6 of the 1894 Act to form the present § 13 of the Rivers and Harbors Act of 1899. Congress enacted the compilation with virtually no debate that contains mention of the intended operative scope of § 13. It seems quite clear, Page 411 U. S. 666 however, that § 13 was intended to have no wider or narrower a scope than that of its two predecessor statutes. United States v. Standard Oil Co., 384 U.S. at 384 U. S. 227-228. It is true, of course, that the Chief of Engineers was authorized to recommend a "revision" or "enlargement" of the existing laws, and that his cover letter accompanying the compilation referred to "a draft of an act embodying such revision and enlargement of the aforesaid laws." But the revision and enlargement were limited to "the existing law relating to the removal of wrecks," [Footnote 15] and, even on that subject, the changes were minor. Indeed, Senator Frye, the Chairman of the Senate Rivers and Harbor Committee, stated in response to a question whether any great change was made in the existing law by the compilation:"Oh, no. There are not ten words changed in the entire thirteen sections. It is a compilation . . . [with] [v]ery slight changes to remove ambiguities. [Footnote 16]"Thus, the Court of Appeals' interpretation of § 13 has no support in the predecessor statutes of § 13. Plainly, neither of the predecessor statutes contemplated that application of their operative provisions would turn on the existence of a formal regulatory program. On the contrary, § 6 of the 1890 Act provided only that its absolute ban on the discharge of enumerated substances could not be construed "to prevent" the Secretary of War from granting, in his discretion, a permit to deposit such material into navigable waters. And § 6 of the 1894 Act contained no direct permit authorization whatsoever. [Footnote 17] Page 411 U. S. 667We turn, then, to the Court of Appeals' assertion that its conclusion is supported by later congressional enactments in the water quality field. In this regard, the Court of Appeals placed primary reliance [Footnote 18] on the 1965 Page 411 U. S. 668 and 1970 amendments to the Water Pollution Control Act of 1948 -- the Water Quality Act of 1965, 79 Stat. 903, and the Water Quality Improvement Act of 1970, 84 Stat. 91. [Footnote 19] The Court of Appeals concluded that, since the 1965 and 1970 Acts contemplated that discharges must meet minimum water quality standards, as set forth by state agencies, it would be "fundamentally inconsistent" to read § 13 as imposing a ban on all pollutant discharges. 461 F.2d at 473. We cannot agree. The Water Quality Acts were a congressional attempt to enlist state and local aid in a concentrated water pollution control and abatement program. The legislative directive of those statutes was that state and local officials, working in cooperation with federal officials, establish minimum water quality standards and create pollution prevention and abatement programs. Nothing in the statutes or their parent statute operated to permit discharges that would otherwise be prohibited by § 13, and, in each case, Congress specifically provided that the new statutes were not to be construed as "affecting or impairing the provisions of [§ 13 of the Rivers and Harbors Act of 1899]." [Footnote 20]Indeed, the water quality legislation expressly complements the provisions of § 13 of the 1899 Act. Section 13, although authorizing the Secretary of the Army to permit certain water deposits, contains no criteria to be followed by the Secretary in issuing such permits. The water quality legislation, on the other hand, calls for Page 411 U. S. 669 the setting of minimum water quality standards, and, once such standards are established, federal permit authority, such as that vested in the Secretary of the Army by the second proviso to § 13, is specifically limited to that extent -- i.e., a permit could not be granted by the Secretary unless the discharge material met the applicable standards. Water Quality Improvement Act of 1970, § 103, 84 Stat. 107. In essence, therefore, the Water Quality Acts placed a limitation on the Secretary's permit authority without undermining the general prohibitions of § 13. See United States v. Maplewood Poultry Co., 327 F. Supp. 686, 688 (Me.1971); United States v. United States Steel Corp., 328 F. Supp. 354, 357 (ND Ind.1970); United States v. Interlake Steel Corp., 297 F. Supp. 912, 916 (N.D.Ill.1969).We therefore find nothing fundamentally inconsistent between § 13 and the subsequent federal enactments in the water quality field. Section 13 declares in simple absolutes that have been characterized as "almost an insult to the sophisticated wastes of modern technology" [Footnote 21] that "[i]t shall not be lawful" to discharge or deposit into navigable waters of the United States "any refuse matter of any kind or description whatever" except as permitted by the Secretary of the Army. In enacting subsequent legislation in the water quality field, Congress took special precautions to preserve the broad prohibitions of § 13, and in no way implied that those prohibitions were operative only under a formal regulatory permit program. Similarly, nothing in the language or history of § 13 conditions enforcement of its prohibitions on the establishment of a formal regulatory permit program, and, as we have said in the past,"the history of this provision and of related Page 411 U. S. 670 legislation dealing with our free-flowing rivers 'forbids a narrow, cramped reading' of § 13."United States v. Standard Oil Co., 384 U.S. at 384 U. S. 226; United States v. Republic Steel Corp., 362 U. S. 482, 362 U. S. 491 (1960).IIWe turn, therefore, to the Court of Appeals' alternative ground for reversing PICCO's conviction, namely, that, in light of the longstanding official administrative construction of § 13 as limited to those water deposits that tend to impede or obstruct navigation, PICCO may have been "affirmatively misled" into believing that its conduct was not criminal. [Footnote 22] We agree with the Court of Appeals that PICCO should have been permitted to present relevant evidence to establish this defense.At the outset, we observe that the issue here is not whether § 13 in fact applies to water deposits that have no tendency to affect navigation. For, although there was much dispute on this question in the past, [Footnote 23] in Page 411 U. S. 671 United States v. Standard Oil Co., supra, we held that"the 'serious injury' to our watercourses . . . sought to be remedied [by the 1899 Act] was caused in part by obstacles that impeded navigation and in part by pollution,"and that the term "refuse" as used in § 13 "includes all foreign substances and pollutants. . . ." 384 U.S. at 384 U. S. 228-229, 384 U. S. 230. [Footnote 24] See also Illinois v. City of Milwaukee, 406 U. S. 91, 406 U. S. 101 (1972). Since then, the lower courts have almost universally agreed, as did the courts below, that § 13 is to be read in accordance with its plain language as imposing a flat ban on the unauthorized deposit of foreign substances into navigable waters, regardless of the effect on navigation. See, e.g., United States v. Granite State Packing Co., 343 F. Supp. 57, aff'd, 470 F.2d 303 (CA1 1972); United States v. Esso Standard Oil Co. of Puerto Rico, 375 F.2d 621 (CA3 1967); United States v. Consolidation Coal Co., 354 F. Supp. 173 (ND W.Va.1973); United States v. Genoa Cooperative Creamery Co., 336 F. Supp. 539 (WD Wis.1972); United States v. Maplewood Poultry Co., 327 F. Supp. 686 Page 411 U. S. 672 (Me.1971); United States v. United States Steel Corp., 328 F. Supp. 354 (ND Ind.1970); United States v. Interlake Steel Corp., 297 F. Supp. 912 (ND Ill.1969); contra, Guthrie v. Alabama By-Products Co., 328 F. Supp. 1140 (ND Ala.1971), aff'd, 456 F.2d 1294 (CA5 1972).Nevertheless, it is undisputed that, prior to December, 1970, the Army Corps of Engineers consistently construed § 13 as limited to water deposits that affected navigation. Thus, at the time of our decision in Standard Oil, the published regulation pertaining to § 13 read as follows:"§ 209.395. Deposit of refuse. Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1 152; 33 U.S.C. 407), prohibits the deposit in navigable waters generally of 'refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state.' The jurisdiction of the Department of the Army, derived from the Federal laws enacted for the protection and preservation of the navigable waters of the United States, is limited and directed to such control as may be necessary to protect the public right of navigation. Action under section 13 has therefore been directed by the Department principally against the discharge of those materials that are obstructive or injurious to navigation."33 CFR § 209.395 (1967).In December, 1968, the Corps of Engineers published a complete revision of the regulations pertaining to navigable waters. The new regulations pertaining to §§ 9 and 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401 and 403, dealing with construction and excavation in navigable waters, stated for the first time that the Corps would consider pollution and other conservation and environmental factors in passing on applications Page 411 U. S. 673 under those sections for permits to "work in navigable waters." 33 CFR § 20.120(d) (1969). But notwithstanding this reference to environmental factors and in spite of our intervening decision in Standard Oil, the new regulation pertaining to § 13 of the 1899 Act continued to construe that provision as limited to water deposits that affected navigation:"Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407) authorizes the Secretary of the Army to permit the deposit of refuse matter in navigable waters whenever, in the judgment of the Chief of Engineers, anchorage and navigation will not be injured thereby, within limits to be defined and under conditions to be prescribed by him. Although the Department has exercised this authority from time to time, it is considered preferable to act under Section 4 of the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U.S.C. 419). As a means of assisting the Chief of Engineers in determining the effect on anchorage of vessels, the views of the U.S. Coast Guard will be solicited by coordination with the Commander of the local Coast Guard District."33 CFR § 209.200(e)(2) (1969). [Footnote 25]At trial, PICCO offered to prove that, in reliance on the consistent, longstanding administrative construction of § 13, the deposits in question were made in good faith belief that they were permissible under law. PICCO Page 411 U. S. 674 does not contend, therefore, that it was ignorant of the law or that the statute is impermissibly vague, see Connally v. General Construction Co., 269 U. S. 385 (1926); Bouie v. City of Columbia, 378 U. S. 347 (1964), but rather that it was affirmatively misled by the responsible administrative agency into believing that the law did not apply in this situation. Cf. Raley v. Ohio, 360 U. S. 423 (1959); Cox v. Louisiana, 379 U. S. 559 (1965).Of course, there can be no question that PICCO had a right to look to the Corps of Engineers' regulations for guidance. The Corps is the responsible administrative agency under the 1899 Act, and"the rulings, interpretations and opinions of the [responsible agency] . . . . , while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which . . . litigants may properly resort for guidance."Skidmore v. Swift & Co., 323 U. S. 134, 323 U. S. 140 (1944); Maritime Board v. Isbrandtsen Co., 356 U. S. 481, 356 U. S. 499 (1958). Moreover, although the regulations did not, of themselves, purport to create or define the statutory offense in question, see United States v. Mersky, 361 U. S. 431 (1960), it is certainly true that their designed purpose was to guide persons as to the meaning and requirements of the statute. Thus, to the extent that the regulations deprived PICCO of fair warning as to what conduct the Government intended to make criminal, we think there can be no doubt that traditional notions of fairness inherent in our system of criminal justice prevent the Government from proceeding with the prosecution. See Newman, Should Official Advice Be Reliable? -- Proposals as to Estoppel and Related Doctrines in Administrative Law, 53 Col.L.Rev. 374 (1953); Note, Applying Estoppel Principles in Criminal Cases, 78 Yale L.J. 1046 (1969).The Government argues, however, that our pronouncement in Standard Oil precludes PICCO from asserting Page 411 U. S. 675 reliance on the Corps of Engineers' regulations and that, in any event, the revised regulation issued in 1968, when considered in light of other pertinent factors, [Footnote 26] was not misleading to persons in PICCO's position. But we need not respond to the Government's arguments here, for the substance of those arguments pertains not to the issue of the availability of reliance as a defense, but rather to the issues whether there was in fact, reliance and, if so, whether that reliance was reasonable under the circumstances -- issues that must be decided in the first instance by the trial court. At this stage, it is sufficient that we hold that it was error for the District Court to refuse to permit PICCO to present evidence in support of its claim that it had been affirmatively misled into believing that the discharges in question were not a violation of the statute.Accordingly, the judgment of the Court of Appeals is modified to remand the case to the District Court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655 (1973)United States v. Pennsylvania Industrial Chemical Corp.No. 72-624Argued March 27, 1973Decided May 14, 1973411 U.S. 655SyllabusAfter the District Court refused respondent's offers of proof of reliance on Army Corps of Engineers regulations limiting violations to those impeding navigation, respondent was convicted of violating § 13 of the Rivers and Harbors Act of 1899 by discharging industrial pollutants into a navigable river. The Court of Appeals reversed on the ground that § 13 did not apply absent formalized permit procedures or, alternatively, that respondent should have been allowed to prove that it was affirmatively misled by the Corps of Engineers' regulations to believe that no permit was needed for these industrial pollutants.Held:1. Section 13 prohibitions apply without regard to formalized permit procedures that it authorizes but does not mandate, and Congress did not intend to permit discharges specifically prohibited by § 13 when it enacted the 1965 and 1970 water quality acts directing States to create pollution prevention and abatement programs. Pp. 411 U. S. 662-670.2. Although § 13 bars all discharges of pollutants, and not only those that constitute obstructions to navigation, the Corps of Engineers consistently limited its regulations to such obstructions, and thus may have deprived respondent of fair warning as to what conduct the Government intended to make criminal. Pp. 411 U. S. 670-675.461 F.2d 468, modified and remanded to District Court.BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, WHITE and MARSHALL, JJ., joined; in Part II of which BURGER, C.J., and STEWART and POWELL, JJ., joined; and in Part I of which BLACKMUN and REHNQUIST, JJ., joined. BURGER, C.J., and STEWART and POWELL, JJ., filed a statement dissenting from Part I of the Court's opinion, post, p. 411 U. S. 675. BLACKMUN and REHNQUIST, JJ., filed a statement dissenting from the judgment and Part II of the Court's opinion, post, p. 411 U. S. 675. Page 411 U. S. 656

1990_89-7024

JUSTICE KENNEDY delivered the opinion of the Court.The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus. Petitioner Warren McCleskey, in a second federal habeas petition, presented a claim under Massiah v. United States, 377 U. S. 201 (1964), that he failed to include in his first federal petition. The Court of Appeals for the Eleventh Circuit held that assertion of the Massiah claim in this manner abused the writ. Though our analysis differs from that of the Court of Appeals, we agree that the petitioner here abused the writ, and we affirm the judgment.IMcCleskey and three other men, all armed, robbed a Georgia furniture store in 1978. One of the robbers shot and killed an off-duty policeman who entered the store in the midst of the crime. McCleskey confessed to the police that he participated in the robbery. When on trial for both the robbery and the murder, however, McCleskey renounced his confession after taking the stand with an alibi denying all involvement. To rebut McCleskey's testimony, the prosecution called Offie Evans, who had occupied a jail cell next to McCleskey's. Evans testified that McCleskey admitted shooting the officer during the robbery and boasted that he would have shot his way out of the store even in the face of a dozen policemen.Although no one witnessed the shooting, further direct and circumstantial evidence supported McCleskey's guilt of the murder. An eyewitness testified that someone ran from the store carrying a pearl-handled pistol soon after the robbery. Other witnesses testified that McCleskey earlier had stolen a pearl-handled pistol of the same caliber as the bullet that killed the officer. Ben Wright, one of McCleskey's accomplices, confirmed that, during the crime, McCleskey carried a white-handled handgun matching the caliber of the fatal bullet. Page 499 U. S. 471 Wright also testified that McCleskey admitted shooting the officer. Finally, the prosecutor introduced McCleskey's confession of participation in the robbery.In December, 1978, the jury convicted McCleskey of murder and sentenced him to death. Since his conviction, McCleskey has pursued direct and collateral remedies for more than a decade. We describe this procedural history in detail, both for a proper understanding of the case and as an illustration of the context in which allegations of abuse of the writ arise.On direct appeal to the Supreme Court of Georgia, McCleskey raised six grounds of error. A summary of McCleskey's claims on direct appeal, as well as those he asserted in each of his four collateral proceedings, is set forth in the Appendix to this opinion, infra. The portion of the appeal relevant for our purposes involves McCleskey's attack on Evans' rebuttal testimony. McCleskey contended that the trial court"erred in allowing evidence of [McCleskey's] oral statement admitting the murder made to [Evans] in the next cell, because the prosecutor had deliberately withheld such statement"in violation of Brady v. Maryland, 373 U. S. 83 (1963). McClesky v. State, 245 Ga. 108, 112, 263 S.E.2d 146, 149 (1980). A unanimous Georgia Supreme Court acknowledged that the prosecutor did not furnish Evans' statement to the defense, but ruled that, because the undisclosed evidence was not exculpatory, McCleskey suffered no material prejudice and was not denied a fair trial under Brady. 245 Ga. at 112-113, 263 S.E.2d at 149. The court noted, moreover, that the evidence McCleskey wanted to inspect was "introduced to the jury in its entirety" through Evans' testimony, and that McCleskey's argument that"the evidence was needed in order to prepare a proper defense or impeach other witnesses ha[d] no merit because the evidence requested was statements made by [McCleskey] himself."Ibid. The court rejected McCleskey's other contentions, and Page 499 U. S. 472 affirmed his conviction and sentence. Ibid. We denied certiorari. McClesky v. Georgia, 449 U.S. 891 (1980).McCleskey then initiated postconviction proceedings. In January 1981, he filed a petition for state habeas corpus relief. The amended petition raised 23 challenges to his murder conviction and death sentence. See Appendix, infra. Three of the claims concerned Evans' testimony. First, McCleskey contended that the State violated his due process rights under Giglio v. United States, 405 U. S. 150 (1972), by its failure to disclose an agreement to drop pending escape charges against Evans in return for his cooperation and testimony. App. 20. Second, McCleskey reasserted his Brady claim that the State violated his due process rights by the deliberate withholding of the statement he made to Evans while in jail. Id. at 21. Third, McCleskey alleged that admission of Evans' testimony violated the Sixth Amendment right to counsel as construed in Massiah v. United States, supra. On this theory,"[t]he introduction into evidence of [his] statements to [Evans], elicited in a situation created to induce [McCleskey] to make incriminating statements without the assistance of counsel, violated [McCleskey's] right to counsel under the Sixth Amendment to the Constitution of the United States."App. 22.At the state habeas corpus hearing, Evans testified that one of the detectives investigating the murder agreed to speak a word on his behalf to the federal authorities about certain federal charges pending against him. The state habeas court ruled that the ex parte recommendation did not implicate Giglio, and it denied relief on all other claims. The Supreme Court of Georgia denied McCleskey's application for a certificate of probable cause, and we denied his second petition for a writ of certiorari. McCleskey v. Zant, 454 U.S. 1093 (1981).In December, 1981, McCleskey filed his first federal habeas corpus petition in the United States District Court for the Northern District of Georgia, asserting 18 grounds for relief. Page 499 U. S. 473 See 499 U.S. 467app|>Appendix, infra. The petition failed to allege the Massiah claim, but it did reassert the Giglio and Brady claims. Following extensive hearings in August and October, 1983, the District Court held that the detective's statement to Evans was a promise of favorable treatment, and that failure to disclose the promise violated Giglio. McCleskey v. Zant, 580 F. Supp. 338, 380-384 (ND Ga.1984). The District Court further held that Evans' trial testimony may have affected the jury's verdict on the charge of malice murder. On these premises, it granted relief. Id. at 384.The Court of Appeals reversed the District Court's grant of the writ. McCleskey v. Kemp, 753 F.2d 877 (CA11 1985). The court held that the State had not made a promise to Evans of the kind contemplated by Giglio, and that in any event the Giglio error would be harmless. 7 53 F.2d at 88 885. The court affirmed the District Court on all other grounds. We granted certiorari limited to the question whether Georgia's capital sentencing procedures were constitutional, and denied relief. 481 U. S. 279 (1987).McCleskey continued his postconviction attacks by filing a second state habeas corpus action in 1987 which, as amended, contained five claims for relief. See Appendix, infra. One of the claims again centered on Evans' testimony, alleging the State had an agreement with Evans that it had failed to disclose. The state trial court held a hearing and dismissed the petition. The Supreme Court of Georgia denied McCleskey's application for a certificate of probable cause.In July, 1987, McCleskey filed a second federal habeas action, the one we now review. In the District Court, McCleskey asserted seven claims, including a Massiah challenge to the introduction of Evans' testimony. See Appendix, infra. McCleskey had presented a Massiah claim, it will be recalled, in his first state habeas action when he alleged that the conversation recounted by Evans at trial had been "elicited Page 499 U. S. 474 in a situation created to induce" him to make an incriminating statement without the assistance of counsel. The first federal petition did not present a Massiah claim. The proffered basis for the Massiah claim in the second federal petition was a 21-page signed statement that Evans made to the Atlanta Police Department on August 1, 1978, two weeks before the trial began. The department furnished the document to McCleskey one month before he filed his second federal petition.The statement related pretrial jailhouse conversations that Evans had with McCleskey and that Evans overheard between McCleskey and Bernard Dupree. By the statement's own terms, McCleskey participated in all the reported jail cell conversations. Consistent with Evans' testimony at trial, the statement reports McCleskey admitting and boasting about the murder. It also recounts that Evans posed as Ben Wright's uncle and told McCleskey he had talked with Wright about the robbery and the murder.In his second federal habeas petition, McCleskey asserted that the statement proved Evans "was acting in direct concert with State officials" during the incriminating conversations with McCleskey, and that the authorities "deliberately elicited" inculpatory admissions in violation of McCleskey's Sixth Amendment right to counsel. Massiah v. United States, 377 U.S. at 377 U. S. 206. 1 Tr. Exh. 1, pp. 11-12. Among other responses, the State of Georgia contended that McCleskey's presentation of a Massiah claim for the first time in the second federal petition was an abuse of the writ. 28 U.S.C. § 2244(b); Rule 9(b) of the Rules Governing § 2254 Cases.The District Court held extensive hearings in July and August, 1987, focusing on the arrangement the jailers had made for Evans' cell assignment in 1978. Several witnesses denied that Evans had been placed next to McCleskey by design or instructed to overhear conversations or obtain statements from McCleskey. McCleskey's key witness was Ulysses Page 499 U. S. 475 Worthy, a jailer at the Fulton County Jail during the summer of 1978. McCleskey's lawyers contacted Worthy after a detective testified that the 1978 Evans statement was taken in Worthy's office. The District Court characterized Worthy's testimony as "often confused and self-contradictory." McCleskey v. Kemp, No. C87-1517A (ND Ga. Dec. 23, 1987), App. 81. Worthy testified that someone at some time requested permission to move Evans near McCleskey's cell. He contradicted himself, however, concerning when, why, and by whom Evans was moved, and about whether he overheard investigators urging Evans to engage McCleskey in conversation. Id. at 76-81.On December 23, 1987, the District Court granted McCleskey relief based upon a violation of Massiah. Id. at 63-97. The court stated that the Evans statement "contains strong indication of an ab initio relationship between Evans and the authorities." Id. at 84. In addition, the court credited Worthy's testimony suggesting that the police had used Evans to obtain incriminating information from McCleskey. Based on the Evans statement and portions of Worthy's testimony, the District Court found that the jail authorities had placed Evans in the cell adjoining McCleskey's "for the purpose of gathering incriminating information"; that "Evans was probably coached in how to approach McCleskey and given critical facts unknown to the general public"; that Evans talked with McCleskey and eavesdropped on McCleskey's conversations with others; and that Evans reported what he had heard to the authorities. Id. at 83. These findings, in the District Court's view, established a Massiah violation.In granting habeas relief, the District Court rejected the State's argument that McCleskey's assertion of the Massiah claim for the first time in the second federal petition constituted an abuse of the writ. The court ruled that McCleskey did not deliberately abandon the claim after raising it in his first state habeas petition. "This is not a case," the District Page 499 U. S. 476 Court reasoned, "where petitioner has reserved his proof or deliberately withheld his claim for a second petition." Id. at 84. The District Court also determined that, when McCleskey filed his first federal petition, he did not know about either the 21-page Evans document or the identity of Worthy, and that the failure to discover the evidence for the first federal petition "was not due to [McCleskey's] inexcusable neglect." Id. at 85.The Eleventh Circuit reversed, holding that the District Court abused its discretion by failing to dismiss McCleskey's Massiah claim as an abuse of the writ. McCleskey v. Zant, 890 F.2d 342 (CA11 1989). The Court of Appeals agreed with the District Court that the petitioner must"show that he did not deliberately abandon the claim and that his failure to raise it [in the first federal habeas proceeding] was not due to inexcusable neglect."Id. at 346-347. Accepting the District Court's findings that, at the first petition stage, McCleskey knew neither the existence of the Evans statement nor the identity of Worthy, the court held that the District Court "misconstru[ed] the meaning of deliberate abandonment." Id. at 348-349. Because McCleskey included a Massiah claim in his first state petition, dropped it in his first federal petition, and then reasserted it in his second federal petition, he "made a knowing choice not to pursue the claim after having raised it previously" that constituted a prima facie showing of "deliberate abandonment." 890 F.2d at 349. The court further found the State's alleged concealment of the Evans statement irrelevant because it "was simply the catalyst that caused counsel to pursue the Massiah claim more vigorously," and did not itself "demonstrate the existence of a Massiah violation." Id. at 350. The court concluded that McCleskey had presented no reason why counsel could not have discovered Worthy earlier. Ibid. Finally, the court ruled that McCleskey's claim did not fall within the ends of justice exception to the abuse of the writ doctrine because any Page 499 U. S. 477 Massiah violation that may have been committed would have been harmless error. 890 F.2d at 350-351.McCleskey petitioned this Court for a writ of certiorari, alleging numerous errors in the Eleventh Circuit's abuse of the writ analysis. In our order granting the petition, we requested the parties to address the following additional question:"Must the State demonstrate that a claim was deliberately abandoned in an earlier petition for a writ of habeas corpus in order to establish that inclusion of that claim in a subsequent habeas petition constitutes abuse of the writ?"496 U.S. 904 (1990).IIThe parties agree that the government has the burden of pleading abuse of the writ, and that, once the government makes a proper submission, the petitioner must show that he has not abused the writ in seeking habeas relief. See Sanders v. United States, 373 U. S. 1, 373 U. S. 10-11 (1963); Price v. Johnston, 334 U. S. 266, 334 U. S. 292 (1948). Much confusion exists though, on the standard for determining when a petitioner abuses the writ. Although the standard is central to the proper determination of many federal habeas corpus actions, we have had little occasion to define it. Indeed, there is truth to the observation that we have defined abuse of the writ in an oblique way, through dicta and denials of certiorari petitions or stay applications. See Witt v. Wainwright, 470 U. S. 1039, 1043 (1985) (MARSHALL, J., dissenting). Today we give the subject our careful consideration. We begin by tracing the historical development of some of the substantive and procedural aspects of the writ, and then consider the standard for abuse that district courts should apply in actions seeking federal habeas corpus relief.AThe Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 81-82, empowered federal courts to issue writs of habeas corpus to prisoners "in custody, under or by colour of the authority of Page 499 U. S. 478 the United States." In the early decades of our new federal system, English common law defined the substantive scope of the writ. Ex parte Watkins, 3 Pet.193, 28 U. S. 201-203 (1830). Federal prisoners could use the writ to challenge confinement imposed by a court that lacked jurisdiction, ibid., or detention by the executive without proper legal process, See Ex parte Wells, 18 How. 307 (1856).The common law limitations on the scope of the writ were subject to various expansive forces, both statutory and judicial. See generally Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 463-499 (1963). The major statutory expansion of the writ occurred in 1867, when Congress extended federal habeas corpus to prisoners held in state custody. Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385. For the most part, however, expansion of the writ has come through judicial decisionmaking. As then-JUSTICE REHNQUIST explained in Wainwright v. Sykes, 433 U. S. 72, 433 U. S. 79 (1977), the Court began by interpreting the concept of jurisdictional defect with generosity to include sentences imposed without statutory authorization, Ex parte Lange, 18 Wall. 163, 85 U. S. 176 (1874), and convictions obtained under an unconstitutional statute, Ex parte Siebold, 100 U. S. 371, 100 U. S. 376-377 (1880). Later, we allowed habeas relief for confinement under a state conviction obtained without adequate procedural protections for the defendant. Frank v. Mangum, 237 U. S. 309 (1915); Moore v. Dempsey, 261 U. S. 86 (1923).Confronting this line of precedents extending the reach of the writ, in Waley v. Johnston, 316 U. S. 101 (1942),"the Court openly discarded the concept of jurisdiction -- by then more a fiction than anything else -- as a touchstone of the availability of federal habeas review, and acknowledged that such review is available for claims of""disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights."Wainwright v. Sykes, supra, 433 U.S. at 433 U. S. 79 (quoting Waley v. Johnston, supra, 316 U.S. at 316 U. S. 104-105). Page 499 U. S. 479 With the exception of Fourth Amendment violations that a petitioner has been given a full and fair opportunity to litigate in state court, Stone v. Powell, 428 U. S. 465, 428 U. S. 495 (1976), the writ today appears to extend to all dispositive constitutional claims presented in a proper procedural manner. See Brown v. Allen, 344 U. S. 443 (1953); Wainwright v. Sykes, supra, 433 U.S. at 433 U. S. 79.One procedural requisite is that a petition not lead to an abuse of the writ. We must next consider the origins and meaning of that rule.BAt common law, res judicata did not attach to a court's denial of habeas relief. "[A] refusal to discharge on one writ [was] not a bar to the issuance of a new writ." 1 W. Bailey, Law of Habeas Corpus and Special Remedies 206 (1913) (citing cases)."[A] renewed application could be made to every other judge or court in the realm, and each court or judge was bound to consider the question of the prisoner's right to a discharge independently, and not to be influenced by the previous decisions refusing discharge."W. Church, Writ of Habeas Corpus § 386, p. 570 (2d ed. 1893) (hereinafter Church). See, e.g., Ex parte Kaine, 14 F. Cas. 79, 80 (No. 7, 597) (S.D.N.Y.1853); In re Kopel, 148 F. 505, 506 (S.D. N.Y.1906). The rule made sense because, at common law, an order denying habeas relief could not be reviewed. Church 570; L. Yackle, Postconviction Remedies § 151, p. 551 (1981); Goddard, A Note on Habeas Corpus, 65 L.Q.Rev. 30, 32 (1949). Successive petitions served as a substitute for appeal. See W. Duker, A Constitutional History of Habeas Corpus 5-6 (1980); Church 570; Goddard, supra, at 35.As appellate review became available from a decision in habeas refusing to discharge the prisoner, courts began to question the continuing validity of the common law rule allowing endless successive petitions. Church 602. Some courts rejected the common law rule, holding a denial of habeas relief Page 499 U. S. 480 res judicata. See, e.g., Perry v. McLendon, 62 Ga. 598, 603-605 (1879); McMahon v. Mead, 30 S.D. 515, 518, 139 N.W. 122, 123 (1912); Ex parte Heller, 146 Wis. 517, 524, 131 N.W. 991, 994 (1911). Others adopted a middle position between the extremes of res judicata and endless successive petitions. Justice Field's opinion on circuit in Ex parte Cuddy, 40 F. 62 (1889), exemplifies this balance."[W]hile the doctrine of res judicata does not apply, . . . the officers before whom the second application is made may take into consideration the fact that a previous application had been made to another officer and refused; and in some instances, that fact may justify a refusal of the second. The action of the court or justice on the second application will naturally be affected to some degree by the character of the court or officer to whom the first application was made, and the fullness of the consideration given to it. . . . In what I have said I refer, of course, to cases where a second application is made upon the same facts presented, or which might have been presented, on the first. The question is entirely different when subsequent occurring events have changed the situation of the petitioner, so as in fact to present a new case for consideration. In the present application, there are no new facts which did not exist when the first was presented. . . . I am of the opinion that, in such a case, a second application should not be heard. . . ."Id. at 65-66. Cf. Ex parte Moebus, 148 F. 39, 40-41 (NH 1906) (second petition disallowed "unless some substantial change in the circumstances had intervened").We resolved the confusion over the continuing validity of the common law rule, at least for federal courts, in Salinger v. Loisel, 265 U. S. 224 (1924), and Wong Doo v. United States, 265 U. S. 239 (1924). These decisions reaffirmed that res judicata does not apply "to a decision on habeas corpus refusing to discharge the prisoner." Salinger v. Loisel Page 499 U. S. 481 supra, at 265 U. S. 230; see Wong Doo v. United States, supra, at 265 U. S. 240. They recognized, however, that the availability of appellate review required a modification of the common law rule allowing endless applications. As we explained in Salinger:"In early times when a refusal to discharge was not open to appellate review, courts and judges were accustomed to exercise an independent judgment on each successive application, regardless of the number. But when a right to an appellate review was given, the reason for that practice ceased, and the practice came to be materially changed. . . ."265 U.S. at 265 U. S. 230-231.Relying on Justice Field's opinion in Ex parte Cuddy, we announced that second and subsequent petitions should be"disposed of in the exercise of a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the propriety of the discharge sought. Among matters which may be considered, and even given controlling weight, are (a) the existence of another remedy, such as a right in ordinary course to an appellate review in the criminal case, and (b) a prior refusal to discharge on a like application."265 U.S. at 265 U. S. 231.Because the lower court in Salinger had not disposed of the subsequent application for habeas corpus by reliance on dismissal of the prior application, the decision did not present an opportunity to apply the doctrine of abuse of the writ. 265 U.S. at 265 U. S. 232. Wong Doo did present the question. There, the District Court had dismissed on res judicata grounds a second petition containing a due process claim that was raised, but not argued, in the first federal habeas petition. The petitioner "had full opportunity to offer proof of this due process claim at the hearing on the first petition," and he offered "[n]o reason for not presenting the proof at the outset. . . ." Wong Doo, 265 U.S. at 265 U. S. 241. The record of the first petition did not contain proof of the due process claim, Page 499 U. S. 482 but "what [was] said of it there and in the briefs show[ed] that it was accessible all the time." Ibid. In these circumstances, we upheld the dismissal of the second petition. We held that "according to a sound judicial discretion, controlling weight must have been given to the prior refusal." Ibid. So while we rejected res judicata in a strict sense as a basis for dismissing a later habeas action, we made clear that the prior adjudication bore vital relevance to the exercise of the court's discretion in determining whether to consider the petition.Price v. Johnston, 334 U. S. 266 (1948), the next decision in this line, arose in a somewhat different context from Salinger or Wong Doo. In Price, the petitioner's fourth habeas petition alleged a claim that, arguably at least, was neither the explicit basis of a former petition nor inferable from the facts earlier alleged. The District Court and Court of Appeals dismissed the petition without hearing on the sole ground that the claim was not raised in one of the earlier habeas actions. We reversed and remanded, reasoning that the dismissal "precluded a proper development of the issue of the allegedly abusive use of the habeas corpus writ." 334 U.S. at 334 U. S. 293. We explained that the State must plead an abuse of the writ with particularity, and that the burden then shifts to petitioner to show that presentation of the new claim does not constitute abuse. Id. at 334 U. S. 292. The District Court erred because it dismissed the petition without affording the petitioner an opportunity to explain the basis for raising his claim late. We gave directions for the proper inquiry in the trial court. If the explanation "is inadequate, the court may dismiss the petition without further proceedings." Ibid. But if a petitioner "present[s] adequate reasons for not making the allegation earlier, reasons which make it fair and just for the trial court to overlook the delay," he must be given the opportunity to develop these matters in a hearing. Id. at 334 U. S. 291-292. Without considering whether the petitioner had abused the writ, we remanded the case. Page 499 U. S. 483Although Price recognized that abuse of the writ principles limit a petitioner's ability to file repetitive petitions, it also contained dicta touching on the standard for abuse that appeared to contradict this point. Price stated that"the three prior refusals to discharge petitioner can have no bearing or weight on the disposition to be made of the new matter raised in the fourth petition."Id. at 334 U. S. 289. This proposition ignored the significance of appellate jurisdictional changes, see supra at 499 U. S. 479-480, as well as the general disfavor we had expressed in Salinger and Wong Doo toward endless repetitive petitions. It did not even comport with language in Price itself which recognized that, in certain circumstances, new claims raised for the first time in a second or subsequent petition should not be entertained. As will become clear, the quoted portion of Price has been ignored in our later decisions.One month after the Price decision, Congress enacted legislation, 28 U.S.C. § 2244, which, for the first time, addressed the issue of repetitive federal habeas corpus petitions:"No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States, or of any State, if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry."28 U.S.C. § 2244 (1964 ed.). Because § 2244 allowed a district court to dismiss a successive petition that "present[ed] no new ground not theretofore presented and determined," one might have concluded, by negative implication, that Congress denied permission to dismiss any petition that alleged new grounds for relief. Such an interpretation would have superseded the judicial principles Page 499 U. S. 484 recognizing that claims not raised or litigated in a prior petition could, when raised in a later petition, constitute abuse. But the Reviser's Note to the 1948 statute made clear that, as a general matter, Congress did not intend the new section to disrupt the judicial evolution of habeas principles, 28 U.S.C. § 2244 (1964 ed.) (Reviser's Note), and we confirmed in Sanders v. United States, 373 U.S. at 373 U. S. 11-12, that Congress' silence on the standard for abuse of the writ involving a new claim was "not intended to foreclose judicial application of the abuse-of-writ principle as developed in Wong Doo and Price."Sanders also recognized our special responsibility in the development of habeas corpus with respect to another provision of the 1948 revision of the judicial code, 28 U.S.C. § 2255 (1964 ed.). The statute created a new postconviction remedy for federal prisoners with a provision for repetitive petitions different from the one found in § 2244. While § 2244 permitted dismissal of subsequent habeas petitions that "present[ed] no new ground not theretofore presented and determined," § 2255 allowed a federal district court to refuse to entertain a subsequent petition seeking "similar relief." On its face, § 2255 appeared to announce a much stricter abuse of the writ standard than its counterpart in § 2244. We concluded in Sanders, however, that the language in § 2255 "cannot be taken literally," and construed it to be the "material equivalent" of the abuse standard in § 2244. Sanders v. United States, supra, at 373 U. S. 13-14.In addition to answering these questions, Sanders undertook a more general "formulation of basic rules to guide the lower federal courts" concerning the doctrine of abuse of the writ. Id. at 373 U. S. 15. After reiterating that the government must plead abuse of the writ and the petitioner must refute a well-pleaded allegation, Sanders addressed the definition of and rationale for the doctrine. It noted that equitable principles governed abuse of the writ, including "the principle that a suitor's conduct in relation to the matter at hand may Page 499 U. S. 485 disentitle him to the relief he seeks," and that these principles must be applied within the sound discretion of district courts. Id. at 373 U. S. 17-18. The Court furnished illustrations of writ abuse:"Thus, for example, if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings, rather than one, or for some other such reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. The same may be true if, as in Wong Doo, the prisoner deliberately abandons one of his grounds at the first hearing. Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless, piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay."Id. at 373 U. S. 18. The Court also cited Fay v. Noia, 372 U. S. 391, 372 U. S. 438-440 (1963), and Townsend v. Sain, 372 U. S. 293, 372 U. S. 317 (1963), for further guidance on the doctrine of abuse of the writ, stating that the principles of those cases "govern equally here." 373 U.S. at 373 U. S. 18. Finally, Sanders established that federal courts must reach the merits of an abusive petition if "the ends of justice demand." Ibid.Three years after Sanders, Congress once more amended the habeas corpus statute. The amendment was an attempt to alleviate the increasing burden on federal courts caused by successive and abusive petitions by "introducing a greater degree of finality of judgments in habeas corpus proceedings." S.Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966); see also H.R.Rep. No. 1892, 89th Cong., 2d Sess., 5-6 (1966), U.S.Code Cong. & Admin.News 1966, pp. 3663, 3664. The amendment recast § 2244 into three subparagraphs. Subparagraph (a) deletes the reference to state prisoners in the old § 2244, but left the provision otherwise intact. 28 U.S.C. § 2244(a). Subparagraph (c) states that, where a state prisoner seeks relief for an alleged denial of a federal Page 499 U. S. 486 constitutional right before this Court, any decision rendered by the Court shall be "conclusive as to all issues of fact or law with respect to an asserted denial of a Federal right. . . ." 28 U.S.C. § 2244(c).Congress added subparagraph (b) to address repetitive applications by state prisoners:"(b) When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States or a justice or judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus on behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ."28 U.S.C. § 2244(b). Subparagraph (b) establishes a "qualified application of the doctrine of res judicata." S.Rep. No. 1797, supra, at 2, U.S.Code Cong. & Admin.News 1966, p. 3664. It states that a federal court "need not entertain" a second or subsequent habeas petition "unless" the petitioner satisfies two conditions. First, the subsequent petition must allege a new ground, factual or otherwise. Second, the applicant must satisfy the judge that he did not deliberately withhold the ground earlier or "otherwise abus[e] the writ." See Smith v. Yeager, 393 U. S. 122, 393 U. S. 125 (1968) ("essential question [under § 2244(b)] is whether the petitioner deliberately withheld the newly asserted ground' in the prior proceeding, or `otherwise abused the writ'"). If the petitioner meets these conditions, the court must consider the subsequent petition Page 499 U. S. 487 as long as other habeas errors, such as nonexhaustion, 28 U.S.C. § 2254(b), or procedural default, Wainwright v. Sykes, 433 U. S. 72 (1977), are not present.Section 2244(b) raises, but does not answer, other questions. It does not state whether a district court may overlook a deliberately withheld or otherwise abusive claim to entertain the petition in any event. That is, it does not state the limits on the district court's discretion to entertain abusive petitions. Nor does the statute define the term "abuse of the writ." As was true of similar silences in the original 1948 version of § 2244, however, see supra at 499 U. S. 484, Congress did not intend § 2244(b) to foreclose application of the court-announced principles defining and limiting a district court's discretion to entertain abusive petitions. See Delo v. Stokes, 495 U. S. 320, 495 U. S. 321-322 (1990) (District Court abused discretion in entertaining a new claim in a fourth federal petition that was an abuse of the writ).Rule 9(b) of the Rules Governing Habeas Corpus Proceedings, promulgated in 1976, also speaks to the problem of new grounds for relief raised in subsequent petitions. It provides:"A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ."28 U.S.C. § 2254 Rule 9(b). Like 28 U.S.C. § 2244(b), Rule 9(b) "incorporates the judge-made principle governing the abuse of the writ set forth in Sanders." Rose v. Lundy, 455 U. S. 509, 455 U. S. 521 (1982) (plurality opinion); id. at 455 U. S. 533 (Brennan, J., dissenting) (same). The Advisory Committee Notes make clear that a new claim in a subsequent petition should not be entertained if the judge finds the failure to raise it earlier "inexcusable." Advisory Committee Notes to Page 499 U. S. 488 Rule 9, 28 U.S.C. § 2254, pp. 426-427. The Notes also state that a retroactive change in the law and newly discovered evidence represent acceptable excuses for failing to raise the claim earlier. Id. at 427.In recent years, we have applied the abuse of the writ doctrine in various contexts. In Woodard v. Hutchins, 464 U. S. 377 (1984) (per curiam), the petitioner offered no explanation for asserting three claims in a second federal habeas petition not raised in the first. Five Justices inferred from the lack of explanation that the three claims "could and should have been raised in" the first petition, and that the failure to do so constituted abuse of the writ. Id. at 464 U. S. 378-379, and n. 3 (Powell, J., joined by four Justices concurring in grant of application to vacate stay). Similarly, in Antone v. Dugger, 465 U. S. 200 (1984) (per curiam), we upheld the Court of Appeals' judgment that claims presented for the first time in a second federal petition constituted an abuse of the writ. We rejected petitioner's argument that he should be excused from his failure to raise the claims in the first federal petition because his counsel during first federal habeas prepared the petition in haste and did not have time to become familiar with the case. Id. at 465 U. S. 205-206, and n. 4. And just last Term, we held that claims raised for the first time in a fourth federal habeas petition abused the writ because they "could have been raised" or "could have been developed" in the first federal habeas petition. Delo v. Stokes, supra, at 495 U. S. 321-322. See also Kuhlmann v. Wilson, 477 U. S. 436, 477 U. S. 444 n. 6 (1986) (plurality opinion) (petition that raises grounds "available but not relied upon in a prior petition" is an example of abuse of the writ); Straight v. Wainwright, 476 U. S. 1132, 1133 (1986) (Powell, J., joined by three Justices concurring in denial of stay) (new arguments in second petition that "plainly could have been raised earlier" constitute abuse of the writ); Rose v. Lundy, supra, 455 U.S. at 455 U. S. 521 (plurality) (prisoner who proceeds with exhausted claims in first federal Page 499 U. S. 489 petition and deliberately sets aside his unexhausted claims risks dismissal of subsequent federal petitions).IIIOur discussion demonstrates that the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions. Because of historical changes and the complexity of the subject, the Court has not "always followed an unwavering line in its conclusions as to the availability of the Great Writ." Fay v. Noia, 372 U.S. at 372 U. S. 411-412. Today we attempt to define the doctrine of abuse of the writ with more precision.Although our decisions on the subject do not all admit of ready synthesis, one point emerges with clarity: abuse of the writ is not confined to instances of deliberate abandonment. Sanders mentioned deliberate abandonment as but one example of conduct that disentitled a petitioner to relief. Sanders cited a passage in Townsend v. Sain, 372 U.S. at 372 U. S. 317, which applied the principle of inexcusable neglect, and noted that this principle also governs in the abuse of the writ context, Sanders v. United States, 373 U.S. at 373 U. S. 18.As Sanders' reference to Townsend demonstrates, as many courts of appeals recognize, see e.g., McCleskey v. Zant, 890 F.2d at 346-347; Hall v. Lockhart, 863 F.2d 609, 610 (CA8 1988); Jones v. Estelle, 722 F.2d 159, 163 (CA6 1983); Miller v. Bordenkircher, 764 F.2d 245, 260-252 (CA4 1986), and as McCleskey concedes, Brief for Petitioner 39-40, 45-48, a petitioner may abuse the writ by failing to raise a claim through inexcusable neglect. Our recent decisions confirm that a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice. See, e.g., Delo v. Stokes, 495 U.S. at 495 U. S. 321-322; Antone v. Dugger, supra, 466 U.S. at 466 U. S. 205-206. See also 28 U.S.C. § 2244(b) (recognizing that a petitioner Page 499 U. S. 490 can abuse the writ in a fashion that does not constitute deliberate abandonment).The inexcusable neglect standard demands more from a petitioner than the standard of deliberate abandonment. But we have not given the former term the content necessary to guide district courts in the ordered consideration of allegedly abusive habeas corpus petitions. For reasons we explain below, a review of our habeas corpus precedents leads us to decide that the same standard used to determine whether to excuse state procedural defaults should govern the determination of inexcusable neglect in the abuse of the writ context.The prohibition against adjudication in federal habeas corpus of claims defaulted in state court is similar in purpose and design to the abuse of the writ doctrine, which in general prohibits subsequent habeas consideration of claims not raised, and thus defaulted, in the first federal habeas proceeding. The terms "abuse of the writ" and "inexcusable neglect," on the one hand, and "procedural default," on the other, imply a background norm of procedural regularity binding on the petitioner. This explains the presumption against habeas adjudication both of claims defaulted in state court and of claims defaulted in the first round of federal habeas. A federal habeas court's power to excuse these types of defaulted claims derives from the court's equitable discretion. See Reed v. Ross, 468 U. S. 1, 468 U. S. 9 (1984) (procedural default); Sanders v. United States, 373 U.S. at 373 U. S. 17-18 (abuse of the writ). In habeas, equity recognizes that "a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." Id. at 373 U. S. 17. For these reasons, both the abuse of the writ doctrine and our procedural default jurisprudence concentrate on a petitioner's acts to determine whether he has a legitimate excuse for failing to raise a claim at the appropriate time.The doctrines of procedural default and abuse of the writ implicate nearly identical concerns flowing from the significant Page 499 U. S. 491 costs of federal habeas corpus review. To begin with, the writ strikes at finality. One of the law's very objects is the finality of its judgments. Neither innocence nor just punishment can be vindicated until the final judgment is known. "Without finality, the criminal law is deprived of much of its deterrent effect." Teague v. Lane, 489 U. S. 288, 489 U. S. 309 (1989). And when a habeas petitioner succeeds in obtaining a new trial, the "erosion of memory' and `dispersion of witnesses' that occur with the passage of time," Kuhlmann v. Wilson, supra, 477 U.S. at 477 U. S. 453, prejudice the government and diminish the chances of a reliable criminal adjudication. Though Fay v. Noia, supra, may have cast doubt upon these propositions, since Fay, we have taken care in our habeas corpus decisions to reconfirm the importance of finality. See, e.g., Teague v. Lane, supra, 489 U.S. at 489 U. S. 308-309; Murray v. Carrier, 477 U. S. 478, 477 U. S. 487 (1986); Reed v. Ross, supra, 468 U.S. at 468 U. S. 10; Engle v. Isaac, 456 U. S. 107, 456 U. S. 127 (1982).Finality has special importance in the context of a federal attack on a state conviction. Murray v. Carrier, supra, 477 U.S. at 477 U. S. 487; Engle v. Isaac, supra, 456 U.S. at 456 U. S. 128. Reexamination of state convictions on federal habeas "frustrate[s] . . . both the States' sovereign power to punish offenders and their good faith attempts to honor constitutional rights.'" Murray v. Carrier, supra, 477 U.S. at 477 U. S. 487 (quoting Engle, supra, 456 U.S. at 456 U. S. 128). Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them.Habeas review extracts further costs. Federal collateral litigation places a heavy burden on scarce federal judicial resources, and threatens the capacity of the system to resolve primary disputes. Schneckloth v. Bustamonte, 412 U. S. 218, 412 U. S. 260 (1973) (Powell, J., concurring). Finally, habeas corpus review may give litigants incentives to withhold claims for manipulative purposes and may establish disincentives to Page 499 U. S. 492 present claims when evidence is fresh. Reed v. Ross, supra, 468 U.S. at 468 U. S. 13; Wainwright v. Sykes, 433 U.S. at 433 U. S. 89.Far more severe are the disruptions when a claim is presented for the first time in a second or subsequent federal habeas petition. If "[c]ollateral review of a conviction extends the ordeal of trial for both society and the accused," Engle v. Isaac, supra, 456 U.S. at 456 U. S. 126-127, the ordeal worsens during subsequent collateral proceedings. Perpetual disrespect for the finality of convictions disparages the entire criminal justice system."A procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude implies a lack of confidence about the possibilities of justice that cannot but war with the underlying substantive commands. . . . There comes a point where a procedural system which leaves matters perpetually open no longer reflects humane concern, but merely anxiety and a desire for immobility."Bator, 76 Harv.L.Rev. at 452-453. If reexamination of a conviction in the first round of federal habeas stretches resources, examination of new claims raised in a second or subsequent petition spreads them thinner still. These later petitions deplete the resources needed for federal litigants in the first instance, including litigants commencing their first federal habeas action. The phenomenon calls to mind Justice Jackson's admonition that "[i]t must prejudice the occasional meritorious application to be buried in a flood of worthless ones." Brown v. Allen, 344 U.S. at 344 U. S. 537 (Jackson, J., concurring in result). And if reexamination of convictions in the first round of habeas offends federalism and comity, the offense increases when a State must defend its conviction in a second or subsequent habeas proceeding on grounds not even raised in the first petition.The federal writ of habeas corpus overrides all these considerations, essential as they are to the rule of law, when a petitioner raises a meritorious constitutional claim in a Page 499 U. S. 493 proper manner in a habeas petition. Our procedural default jurisprudence and abuse of the writ jurisprudence help define this dimension of procedural regularity. Both doctrines impose on petitioners a burden of reasonable compliance with procedures designed to discourage baseless claims and to keep the system open for valid ones; both recognize the law's interest in finality; and both invoke equitable principles to define the court's discretion to excuse pleading and procedural requirements for petitioners who could not comply with them in the exercise of reasonable care and diligence. It is true that a habeas court's concern to honor state procedural default rules rests in part on respect for the integrity of procedures "employed by a coordinate jurisdiction within the federal system," Wainwright v. Sykes, supra, 433 U.S. at 433 U. S. 88, and that such respect is not implicated when a petitioner defaults a claim by failing to raise it in the first round of federal habeas review. Nonetheless, the doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State's interest in the finality of its criminal judgments.We conclude from the unity of structure and purpose in the jurisprudence of state procedural defaults and abuse of the writ that the standard for excusing a failure to raise a claim at the appropriate time should be the same in both contexts. We have held that a procedural default will be excused upon a showing of cause and prejudice. Wainwright v. Sykes, supra. We now hold that the same standard applies to determine if there has been an abuse of the writ through inexcusable neglect.In procedural default cases, the cause standard requires the petitioner to show that "some objective factor external to the defense impeded counsel's efforts" to raise the claim in state court. Murray v. Carrier, 477 U.S. at 477 U. S. 488. Objective Page 499 U. S. 494 factors that constitute cause include "interference by officials'" that makes compliance with the state's procedural rule impracticable, and "a showing that the factual or legal basis for a claim was not reasonably available to counsel." Ibid. In addition, constitutionally "ineffective assistance of counsel . . . is cause." Ibid. Attorney error short of ineffective assistance of counsel, however, does not constitute cause, and will not excuse a procedural default. Id. at 477 U. S. 486-488. Once the petitioner has established cause, he must show "`actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U. S. 152, 456 U. S. 168 (1982).Federal courts retain the authority to issue the writ of habeas corpus in a further, narrow class of cases despite a petitioner's failure to show cause for a procedural default. These are extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime. We have described this class of cases as implicating a fundamental miscarriage of justice. Murray v. Carrier, supra, 477 U.S. at 477 U. S. 485.The cause and prejudice analysis we have adopted for cases of procedural default applies to an abuse of the writ inquiry in the following manner. When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner's. To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner's opportunity to meet the burden of cause and prejudice will not include an evidentiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard. If petitioner cannot show cause, the failure to raise the claim in an earlier petition may Page 499 U. S. 495 nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim. Application of the cause and prejudice standard in the abuse of the writ context does not mitigate the force of Teague v. Lane, supra, which prohibits, with certain exceptions, the retroactive application of new law to claims raised in federal habeas. Nor does it imply that there is a constitutional right to counsel in federal habeas corpus. See Pennsylvania v. Finley, 481 U. S. 551, 481 U. S. 555 (1987) ("the right to appointed counsel extends to the first appeal of right, and no further").Although the cause and prejudice standard differs from some of the language in Price v. Johnston, 334 U. S. 266 (1948), it is consistent with Cuddy, Salinger, Wong Doo, and Sanders, as well as our modern abuse of the writ decisions, including Antone, Woodard, and Delo. In addition, the exception to cause for fundamental miscarriages of justice gives meaningful content to the otherwise unexplained "ends of justice" inquiry mandated by Sanders. Sanders drew the phrase "ends of justice" from the 1948 version of § 2244. 28 U.S.C. § 2244 (1964 ed.) (judge need not entertain subsequent application if he is satisfied that "the ends of justice will not be served by such inquiry"). Sanders v. United States, 373 U.S. at 373 U. S. 15-17. Although the 1966 revision to the habeas statute eliminated any reference to an "ends of justice" inquiry, a plurality of the Court in Kuhlmann v. Wilson, 477 U.S. at 477 U. S. 454, held that this inquiry remained appropriate, and required federal courts to entertain successive petitions when a petitioner supplements a constitutional claim with a "colorable showing of factual innocence." The miscarriage of justice exception to cause serves as "an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty," Stone v. Powell, 428 U.S. at 428 U. S. 492-493, n. 31, guaranteeing that the ends of justice will be served in full. Page 499 U. S. 496Considerations of certainty and stability in our discharge of the judicial function support adoption of the cause and prejudice standard in the abuse of the writ context. Well-defined in the case law, the standard will be familiar to federal courts. Its application clarifies the imprecise contours of the term "inexcusable neglect." The standard is an objective one, and can be applied in a manner that comports with the threshold nature of the abuse of the writ inquiry. See Price v. Johnston, 334 U.S. at 334 U. S. 287 (abuse of the writ is "preliminary as well as collateral to a decision as to the sufficiency or merits of the allegation itself"). Finally, the standard provides "a sound and workable means of channeling the discretion of federal habeas courts." Murray v. Carrier, 477 U.S. at 477 U. S. 497."[I]t is important, in order to preclude individualized enforcement of the Constitution in different parts of the Nation, to lay down as specifically as the nature of the problem permits the standards or directions that should govern the District Judges in the disposition of applications for habeas corpus by prisoners under sentence of State Courts."Brown v. Allen, 344 U.S. at 344 U. S. 501-502 (opinion of Frankfurter, J.).The cause and prejudice standard should curtail the abusive petitions that in recent years have threatened to undermine the integrity of the habeas corpus process. "Federal courts should not continue to tolerate -- even in capital cases -- this type of abuse of the writ of habeas corpus." Woodard v. Hutchins, 464 U.S. at 464 U. S. 380. The writ of habeas corpus is one of the centerpieces of our liberties."But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice, and therefore weaken the forces of authority that are essential for civilization."Brown v. Allen, supra, 344 U.S. at 344 U. S. 512 (opinion of Frankfurter, J.). Adoption of the cause and prejudice standard acknowledges the historic purpose and function of the writ in our constitutional system, and, by preventing its abuse, assures its continued efficacy. Page 499 U. S. 497We now apply these principles to the case before us.IVMcCleskey based the Massiah claim in his second federal petition on the 21-page Evans document alone. Worthy's identity did not come to light until the hearing. The District Court found, based on the document's revelation of the tactics used by Evans in engaging McCleskey in conversation (such as his pretending to be Ben Wright's uncle and his claim that he was supposed to participate in the robbery), that the document established an ab initio relationship between Evans and the authorities. It relied on the finding and on Worthy's later testimony to conclude that the State committed a Massiah violation.This ruling on the merits cannot come before us or any federal court if it is premised on a claim that constitutes an abuse of the writ. We must consider, therefore, the preliminary question whether McCleskey had cause for failing to raise the Massiah claim in his first federal petition. The District Court found that neither the 21-page document nor Worthy were known or discoverable before filing the first federal petition. Relying on these findings, McCleskey argues that his failure to raise the Massiah claim in the first petition should be excused. For reasons set forth below, we disagree.That McCleskey did not possess or could not reasonably have obtained certain evidence fails to establish cause if other known or discoverable evidence could have supported the claim in any event. "[C]ause . . . requires a showing of some external impediment preventing counsel from constructing or raising a claim." Murray v. Carrier, supra, 477 U.S. at 477 U. S. 492 (emphasis added). For cause to exist, the external impediment, whether it be government interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim. See id. at 477 U. S. 488 (cause if "interference by officials . . . made compliance Page 499 U. S. 498 impracticable"); Amadeo v. Zant, 486 U. S. 214, 486 U. S. 222 (1988) (cause if unavailable evidence "was the reason" for default). Abuse of the writ doctrine examines petitioner's conduct: the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process, see 28 U.S.C. § 2254 Rule 6 (Discovery); Rule 7 (Expansion of Record); Rule 8 (Evidentiary Hearing). The requirement of cause in the abuse of the writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition. If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim.In applying these principles, we turn first to the 21-page signed statement. It is essential at the outset to distinguish between two issues: (1) whether petitioner knew about or could have discovered the 21-page document; and (2) whether he knew about or could have discovered the evidence the document recounted, namely the jail-cell conversations. The District Court's error lies in its conflation of the two inquiries, an error petitioner would have us perpetuate here.The 21-page document unavailable to McCleskey at the time of the first petition does not establish that McCleskey had cause for failing to raise the Massiah claim at the outset. * Based on testimony and questioning at trial, McCleskey Page 499 U. S. 499 knew that he had confessed the murder during jail cell conversations with Evans, knew that Evans claimed to be a relative of Ben Wright during the conversations, and knew that Evans told the police about the conversations. Knowledge of these facts alone would put McCleskey on notice to pursue the Massiah claim in his first federal habeas petition, as he had done in the first state habeas petition.But there was more. The District Court's finding that the 21-page document established an ab initio relationship between Evans and the authorities rested in its entirety on conversations in which McCleskey himself participated. Page 499 U. S. 500 Though at trial McCleskey denied the inculpatory conversations, his current arguments presuppose them. Quite apart from the inequity in McCleskey's reliance on that which he earlier denied under oath, the more fundamental point remains that, because McCleskey participated in the conversations reported by Evans, he knew everything in the document that the District Court relied upon to establish the ab initio connection between Evans and the police. McCleskey has had at least constructive knowledge all along of the facts he now claims to have learned only from the 21-page document. The unavailability of the document did not prevent McCleskey from raising the Massiah claim in the first federal petition, and is not cause for his failure to do so. And of course, McCleskey cannot contend that his false representations at trial constitute cause for the omission of a claim from the first federal petition.The District Court's determination that jailer Worthy's identity and testimony could not have been known prior to the first federal petition does not alter our conclusion. It must be remembered that the 21-page statement was the only new evidence McCleskey had when he filed the Massiah claim in the second federal petition in 1987. Under McCleskey's own theory, nothing was known about Worthy even then. If McCleskey did not need to know about Worthy and his testimony to press the Massiah claim in the second petition, neither did he need to know about him to assert it in the first. Ignorance about Worthy did not prevent McCleskey from raising the Massiah claim in the first federal petition, and will not excuse his failure to do so.Though this reasoning suffices to show the irrelevance of the District Court's finding concerning Worthy, the whole question illustrates the rationale for requiring a prompt investigation and the full pursuit of habeas claims in the first petition. At the time of the first federal petition, written logs and records with prison staff names and assignments existed. By the time of the second federal petition, officials had Page 499 U. S. 501 destroyed the records pursuant to normal retention schedules. Worthy's inconsistent and confused testimony in this case demonstrates the obvious proposition that factfinding processes are impaired when delayed. Had McCleskey presented this claim in the first federal habeas proceeding, when official records were available, he could have identified the relevant officers and cell assignment sheets. The critical facts for the Massiah claim, including the reason for Evans' placement in the cell adjacent to McCleskey's and the precise conversation that each officer had with Evans before he was put there, likely would have been reconstructed with greater precision than now can be achieved. By failing to raise the Massiah claim in 1981, McCleskey foreclosed the procedures best suited for disclosure of the facts needed for a reliable determination.McCleskey nonetheless seeks to hold the State responsible for his omission of the Massiah claim in the first petition. His current strategy is to allege that the State engaged in wrongful conduct in withholding the 21-page document. This argument need not detain us long. When all is said and done, the issue is not presented in the case, despite all the emphasis upon it in McCleskey's brief and oral argument. The Atlanta police turned over the 21-page document upon request in 1987. The District Court found no misrepresentation or wrongful conduct by the State in failing to hand over the document earlier, and our discussion of the evidence in the record concerning the existence of the statement, see n., supra, as well as the fact that at least four courts have considered and rejected petitioner's Brady claim, belies McCleskey's characterization of the case. And as we have taken care to explain, the document is not critical to McCleskey's notice of a Massiah claim anyway.Petitioner's reliance on the procedural default discussion in Amadeo v. Zant, 486 U. S. 214 (1988), is misplaced. In Amadeo, the Court mentioned that government concealment of evidence could be cause for a procedural default if it "was Page 499 U. S. 502 the reason for the failure of a petitioner's lawyers to raise the jury challenge in the trial court." Id. at 486 U. S. 222. This case differs from Amadeo in two crucial respects. First, there is no finding that the State concealed evidence. And second, even if the State intentionally concealed the 21-page document, the concealment would not establish cause here because, in light of McCleskey's knowledge of the information in the document, any initial concealment would not have prevented him from raising the claim in the first federal petition.As McCleskey lacks cause for failing to raise the Massiah claim in the first federal petition, we need not consider whether he would be prejudiced by his inability to raise the alleged Massiah violation at this late date. See Murray v. Carrier, 477 U.S. at 477 U. S. 494 (rejecting proposition that showing of prejudice permits relief in the absence of cause).We do address whether the Court should nonetheless exercise its equitable discretion to correct a miscarriage of justice. That narrow exception is of no avail to McCleskey. The Massiah violation, if it be one, resulted in the admission at trial of truthful inculpatory evidence which did not affect the reliability of the guilt determination. The very statement McCleskey now seeks to embrace confirms his guilt. As the District Court observed:"After having read [the Evans statement], the court has concluded that nobody short of William Faulkner could have contrived that statement, and, as a consequence, finds the testimony of Offie Evans absolutely to be true, and the court states on the record that it entertains absolutely no doubt as to the guilt of Mr. McCleskey."4 Tr. 4. We agree with this conclusion. McCleskey cannot demonstrate that the alleged Massiah violation caused the conviction of an innocent person. Murray v. Carrier, supra, 477 U.S. at 477 U. S. 496.The history of the proceedings in this case, and the burden upon the State in defending against allegations made for the Page 499 U. S. 503 first time in federal court some 9 years after the trial, reveal the necessity for the abuse of the writ doctrine. The cause and prejudice standard we adopt today leaves ample room for consideration of constitutional errors in a first federal habeas petition and in a later petition under appropriate circumstances. Petitioner has not satisfied this standard for excusing the omission of the Massiah claim from his first petition. The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtMcCleskey v. Zant, 499 U.S. 467 (1991)McCleskey v. ZantNo. 89-7024Argued Oct. 31, 1990Decided April 16, 1991499 U.S. 467SyllabusTo rebut petitioner McCleskey's alibi defense at his 1978 Georgia trial for murder and a related crime, the State called Officer Evans, the occupant of the jail cell next to McCleskey's, who testified that McCleskey had admitted and boasted about the killing. On the basis of this and other evidence supporting McCleskey's guilt, the jury convicted him and sentenced him to death. After the State Supreme Court affirmed, he filed an unsuccessful petition for state habeas corpus relief, alleging, inter alia, that his statements to Evans were elicited in a situation created by the State to induce him to make incriminating statements without the assistance of counsel in violation of Massiah v. United States, 377 U. S. 201. He then filed his first federal habeas petition, which did not raise a Massiah claim, and a second state petition, both of which were ultimately unsuccessful. Finally, he filed his second federal habeas petition in 1987, basing a Massiah challenge on a 21-page statement that Evans had made to police two weeks before the trial. The document, which the State furnished at McCleskey's request shortly before he filed his second federal petition, related conversations that were consistent with Evans' trial testimony, but also recounted the tactics used by Evans to engage McCleskey in conversation. Moreover, at a hearing on the petition, Ulysses Worthy, a jailer during McCleskey's pretrial incarceration whose identity came to light after the petition was filed, gave testimony indicating that Evans' cell assignment had been made at the State's behest. In light of the Evans statement and Worthy's testimony, the District Court found an ab initio relationship between Evans and the State, and granted McCleskey relief under Massiah. The Court of Appeals reversed on the basis of the doctrine of abuse of the writ, which defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent habeas corpus petition.Held: McCleskey's failure to raise his Massiah claim in his first federal habeas petition constituted abuse of the writ. Pp. 499 U. S. 477-503.(a) Much confusion exists as to the proper standard for applying the abuse of the writ doctrine, which refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions. This Court has heretofore Page 499 U. S. 468 defined such abuse in an oblique way, through dicta and denials of certiorari petitions or stay applications, see Witt v. Wainwright, 470 U. S. 1039, 1043 (MARSHALL, J., dissenting), and, because of historical changes and the complexity of the subject, has not always followed an unwavering line in its conclusions as to the writ's availability, Fay v. Noia, 372 U. S. 391, 372 U. S. 411-412. Pp. 499 U. S. 477-489.(b) Although this Court's federal habeas decisions do not all admit of ready synthesis, a review of these precedents demonstrates that a claim need not have been deliberately abandoned in an earlier petition in order to establish that its inclusion in a subsequent petition constitutes abuse of the writ, see, e.g., Sanders v. United States, 373 U. S. 1, 373 U. S. 18; that such inclusion constitutes abuse if the claim could have been raised in the first petition, but was omitted through inexcusable neglect, see, e.g., Delo v. Stokes, 495 U. S. 320, 495 U. S. 321-322, and that, because the doctrines of procedural default and abuse of the writ implicate nearly identical concerns, the determination of inexcusable neglect in the abuse context should be governed by the same standard used to determine whether to excuse a habeas petitioner's state procedural defaults, see, e.g., Wainwright v. Sykes, 433 U. S. 72. Thus, when a prisoner files a second or subsequent habeas petition, the government bears the burden of pleading abuse of the writ. This burden is satisfied if the government, with clarity and particularity, notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then shifts to petitioner. To excuse his failure to raise the claim earlier, he must show cause -- e.g., that he was impeded by some objective factor external to the defense, such as governmental interference or the reasonable unavailability of the factual basis for the claim -- as well as actual prejudice resulting from the errors of which he complains. He will not be entitled to an evidentiary hearing if the district court determines as a matter of law that he cannot satisfy the cause and prejudice standard. However, if he cannot show cause, the failure to earlier raise the claim may nonetheless be excused if he can show that a fundamental miscarriage of justice -- the conviction of an innocent person -- would result from a failure to entertain the claim. Pp. 499 U. S. 478-497.(c) McCleskey has not satisfied the foregoing standard for excusing the omission of his Massiah claim from his first federal habeas petition. He lacks cause for that omission, and, therefore, the question whether he would be prejudiced by his inability to raise the claim need not be considered. See Murray v. Carrier, 477 U. S. 478, 477 U. S. 494. That he may not have known about, or been able to discover, the Evans document before filing his first federal petition does not establish cause, since knowledge gleaned from the trial about the jail cell conversations and Page 499 U. S. 469 Evans' conduct, as well as McCleskey's admitted participation in those conversations, put him on notice that he should pursue the Massiah claim in the first federal petition as he had done in his first state petition. Nor does the unavailability of Worthy's identity and testimony at the time of the first federal petition establish cause, since the fact that Evans' statement was the only new evidence McCleskey had when he filed the Massiah claim in his second federal petition demonstrates the irrelevance of Worthy to that claim. Moreover, cause cannot be established by the State's allegedly wrongful concealment of the Evans document until 1987, since the District Court found no wrongdoing in the failure to hand over the document earlier, and since any initial concealment would not have prevented McCleskey from raising a Massiah claim in the first federal petition. Amadeo v. Zant, 486 U. S. 214, 486 U. S. 224, distinguished. Furthermore, the narrow miscarriage of justice exception to the cause requirement is of no avail to McCleskey, since he cannot demonstrate that the alleged Massiah violation caused the conviction of an innocent person. The record demonstrates that that violation, if it be one, resulted in the admission at trial of truthful inculpatory evidence which did not affect the reliability of the guilt determination. In fact, the Evans statement that McCleskey now embraces confirms his guilt. Pp. 499 U. S. 497-503.890 F.2d 342 (CA 11 1989), affirmed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, SCALIA, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 499 U. S. 506. Page 499 U. S. 470

1977_76-750

MR. JUSTICE STEVENS delivered the opinion of the Court.The question in this case is whether the National Labor Relations Act, as amended, [Footnote 1] deprives a state court of the power to entertain an action by an employer to enforce state trespass laws against picketing which is arguably -- but not definitely -- prohibited or protected by federal law.IOn October 24, 1973, two business representatives of respondent Union visited the department store operated by petitioner (Sears) in Chula Vista, Cal., and determined that certain carpentry work was being performed by men who had not been dispatched from the Union hiring hall. Later that day, the Union agents met with the store manager and requested that Sears either arrange to have the work performed by a contractor who employed dispatched carpenters or agree in writing to abide by the terms of the Union's master labor agreement with respect to the dispatch and use of carpenters. The Sears manager stated that he would consider the request, but he never accepted or rejected it.Two days later, the Union established picket lines on Sears' property. The store is located in the center of a large rectangular lot. The building is surrounded by walkways and a large parking area. A concrete wall at one end separates the lot from residential property; the other three sides adjoin public sidewalks which are adjacent to the public streets. The pickets patrolled either on the privately owned walkways next to the building or in the parking area a few feet away. They carried signs indicating that they were sanctioned by the "Carpenters Trade Union." The picketing was peaceful and orderly.Sears' security manager demanded that the Union remove Page 436 U. S. 183 the pickets from Sears' property. The Union refused, stating that the pickets would not leave unless forced to do so by legal action. On October 29, Sears filed a verified complaint in the Superior Court of California seeking an injunction against the continuing trespass; the court entered a temporary restraining order enjoining the Union from picketing on Sears' property. The Union promptly removed the pickets to the public sidewalks. [Footnote 2] On November 21, 1973, after hearing argument on the question whether the Union's picketing on Sears' property was protected by state or federal law, the court entered a preliminary injunction. [Footnote 3] The California Court of Appeal affirmed. While acknowledging the preemption guidelines set forth in San Diego Building Trades Council v. Garmon, 359 U. S. 236, [Footnote 4] the court held that the Union's continuing trespass fell within the longstanding exception for conduct which touched interests so deeply rooted in local feeling and responsibility that preemption could not be inferred in the absence of clear evidence of congressional intent. [Footnote 5] Page 436 U. S. 184The Supreme Court of California reversed. 17 Cal. 3d 893, 553 P.2d 603. It concluded that the picketing was arguably protected by § 7 of the Act, 29 U.S.C. § 157, because it was intended to secure work for Union members and to publicize Sears' undercutting of the prevailing area standards for the employment of carpenters. The court reasoned that the trespassory character of the picketing did not disqualify it from arguable protection, but was merely a factor which the National Labor Relations Board would consider in determining whether or not it was in fact protected. The court also considered it "arguable" that the Union had engaged in recognitional picketing subject to § 8(b)(7)(C) of the Act, 29 U.S.C. § 158(b)(7)(C), which could not continue for more than 30 days without petitioning for a representation election. Because the picketing was both arguably protected by § 7 and arguably prohibited by § 8, the court held that state jurisdiction was preempted under the Garmon guidelines.Since the Wagner Act was passed in 1935, this Court has not decided whether, or under what circumstances, a state court has power to enforce local trespass laws against a union's peaceful picketing. [Footnote 6] The obvious importance of this problem led us to grant certiorari in this case. 430 U.S. 905. [Footnote 7] Page 436 U. S. 185IIWe start from the premise that the Union's picketing on Sears' property after the request to leave was a continuing trespass in violation of state law. [Footnote 8] We note, however, that the scope of the controversy in the state court was limited. Sears asserted no claim that the picketing itself violated any state or federal law. It sought simply to remove the pickets from its property to the public walkways, and the injunction issued by the state court was strictly confined to the relief sought. Thus, as a matter of state law, the location of the picketing was illegal, but the picketing itself was unobjectionable.As a matter of federal law, the legality of the picketing was unclear. Two separate theories would support an argument by Sears that the picketing was prohibited by § 8 of the NLRA, and a third theory would support an argument by the Union that the picketing was protected by § 7. Under each of these theories, the Union's purpose would be of critical importance.If an object of the picketing was to force Sears into assigning the carpentry work away from its employees to Union members Page 436 U. S. 186 dispatched from the hiring hall, the picketing may have been prohibited by § 8(b)(4)(D). [Footnote 9] Alternatively, if an object of the picketing was to coerce Sears into signing a prehire or members-only type agreement with the Union, the picketing was at least arguably subject to the prohibition on recognitional picketing contained in § 8(b)(7)(C). [Footnote 10] Hence, if Sears had filed an unfair labor practice charge against the Union, the Board's concern would have been limited to the question whether the Union's picketing had an objective proscribed by the Act; the location of the picketing would have been irrelevant.On the other hand, the Union contends that the sole objective of its action was to secure compliance by Sears with Page 436 U. S. 187 area standards, and therefore the picketing was protected by § 7. Longshoremen v. Ariadne Shipping Co., 397 U. S. 195. Thus, if the Union had filed an unfair labor practice charge under § 8(a)(1) when Sears made a demand that the pickets leave its property, it is at least arguable that the Board would have found Sears guilty of an unfair labor practice.Our second premise, therefore, is that the picketing was both arguably prohibited and arguably protected by federal law. The case is not, however, one in which "it is clear or may fairly be assumed" that the subject matter which the state court sought to regulate -- that is, the location of the picketing -- is either prohibited or protected by the Federal Act.IIIIn San Diego Building Trades Council v. Garmon, 359 U. S. 236, the Court made two statements which have come to be accepted as the general guidelines for deciphering the unexpressed intent of Congress regarding the permissible scope of state regulation of activity touching upon labor-management relations. The first related to activity which is clearly protected or prohibited by the federal statute. [Footnote 11] The second articulated a more sweeping prophylactic rule:"When an activity is arguably subject to § 7 or § 8 of the Act, the States, as well as the federal courts, must defer to the exclusive competence of the National Labor Relations Page 436 U. S. 188 Board if the danger of state interference with national policy is to be averted."Id. at 359 U. S. 245.While the Garmon formulation accurately reflects the basic federal concern with potential state interference with national labor policy, the history of the labor preemption doctrine in this Court does not support an approach which sweeps away state court jurisdiction over conduct traditionally subject to state regulation without careful consideration of the relative impact of such a jurisdictional bar on the various interests affected. [Footnote 12] As the Court noted last Term:"Our cases indicate . . . that inflexible application of the doctrine is to be avoided, especially where the State has a substantial interest in regulation of the conduct at issue and the State's interest is one that does not threaten undue interference with the federal regulatory scheme."Farmer v. Carpenters, 430 U. S. 290, 430 U. S. 302. Thus, the Court has refused to apply the Garmon guidelines in a literal, mechanical fashion. [Footnote 13] This refusal demonstrates that Page 436 U. S. 189"the decision to preempt . . . state court jurisdiction over a given class of cases must depend upon the nature of the particular interests being asserted and the effect upon the administration of national labor policies"of permitting the state court to proceed. Vaca v. Sipes, 386 U. S. 171, 386 U. S. 180. [Footnote 14] Page 436 U. S. 190With this limitation in mind, we turn to the question whether preemption is justified in a case of this kind under either the arguably protected or the arguably prohibited branch of the Garmon doctrine. While the considerations underlying the two categories overlap, they differ in significant respects, and therefore it is useful to review them separately. We therefore first consider whether the arguable illegality of the picketing as a matter of federal law should oust the state court of jurisdiction to enjoin its trespassory aspects. Thereafter, we consider whether the arguably protected character of the picketing should have that effect.IVThe enactment of the NLRA in 1935 marked a fundamental change in the Nation's labor policies. Congress expressly recognized that collective organization of segments of the labor force into bargaining units capable of exercising economic power comparable to that possessed by employers may produce benefits for the entire economy in the form of higher wages, job security, and improved working conditions. Congress decided that, in the long run, those benefits would outweigh the occasional costs of industrial strife associated with the organization of unions and the negotiation and enforcement of collective bargaining agreements. The earlier notion that union activity was a species of "conspiracy," and that strikes and picketing were examples of unreasonable restraints of trade, was replaced by an unequivocal national declaration of policy establishing the legitimacy of labor unionization and encouraging the practice of collective bargaining. [Footnote 15] Page 436 U. S. 191The new federal statute protected the collective bargaining activities of employees and their representatives and created a regulatory scheme to be administered by an independent agency which would develop experience and expertise in the labor relations area. The Court promptly decided that the federal agency's power to implement the policies of the new legislation was exclusive and the States were without power to enforce overlapping rules. [Footnote 16] Accordingly, attempts to apply provisions of the "Little Wagner Acts" enacted by New York [Footnote 17] and Wisconsin [Footnote 18] were held to be preempted by the potential conflict with the federal regulatory scheme. Consistently with these holdings, the Court also decided that a State's employment relations board had no power to grant relief for violation of the federal statute. [Footnote 19] The interest in uniform development of the new national labor policy required that matters which fell squarely within the regulatory jurisdiction of the federal Board be evaluated in the first instance by that agency.The leading case holding that, when an employer grievance against a union may be presented to the National Labor Relations Page 436 U. S. 192 Board it is not subject to litigation in a state tribunal is Garner v. Teamsters, 346 U. S. 485. Garner involved peaceful organizational picketing which arguably violated § 8(b)(2) of the federal Act. [Footnote 20] A Pennsylvania equity court held that the picketing violated the Pennsylvania Labor Relations Act, and therefore should be enjoined. The State Supreme Court reversed because the union conduct fell within the jurisdiction of the National Labor Relations Board to prevent unfair labor practices.This Court affirmed because Congress had "taken in hand this particular type of controversy . . . [i]n language almost identical to parts of the Pennsylvania statute," 346 U.S. at 346 U. S. 488. Accordingly, the State, through its courts, was without power to "adjudge the same controversy and extend its own form of relief." Id. at 346 U. S. 489. This conclusion did not depend on any surmise as to "how the National Labor Relations Board might have decided this controversy had petitioners presented it to that body." Ibid. The precise conduct in controversy was arguably prohibited by federal law, and therefore state jurisdiction was preempted. The reason for preemption was clearly articulated:"Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules and to avoid these diversities and conflicts likely to result from a variety of local procedures and attitudes toward labor controversies. Indeed, Pennsylvania passed a statute the same year as its labor relations Act reciting abuses of the injunction in labor litigations attributable more to procedure and usage than to substantive rules. A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law. The same Page 436 U. S. 193 reasoning which prohibits federal courts from intervening in such cases, except by way of review or on application of the federal Board, precludes state courts from doing so. Cf. Myers v. Bethehem Shipbuilding Corp., 303 U. S. 41; Amalgamated Utility Workers v. Consolidated Edison Co., 309 U. S. 261."Id. at 346 U. S. 490-491 (footnote omitted). "The conflict lies in remedies. . . . [W]hen two separate remedies are brought to bear on the same activity, a conflict is imminent." Id. at 346 U. S. 498-499.This reasoning has its greatest force when applied to state laws regulating the relations between employees, their union, and their employer. [Footnote 21] It may also apply to certain laws of general applicability which are occasionally invoked in connection with a labor dispute. [Footnote 22] Thus, a State's antitrust law may not be invoked to enjoin collective activity which is also arguably prohibited by the federal Act. Capital Service, Inc. v. NLRB, 347 U. S. 501; Weber v. Anheuser-Busch, Inc., 348 U. S. 468. [Footnote 23] In each case, the pertinent inquiry is whether Page 436 U. S. 194 the two potentially conflicting statutes were "brought to bear on precisely the same conduct." Id. at 348 U. S. 479. [Footnote 24]On the other hand, the Court has allowed a State to enforce Page 436 U. S. 195 certain laws of general applicability even though aspects of the challenged conduct were arguably prohibited by § 8 of the NLRA. Thus, for example, the Court has upheld state court jurisdiction over conduct that touches"interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act."San Diego Building Trades Council v. Garmon, 359 U.S. at 359 U. S. 244. See Construction Workers v. Laburnum Constr. Corp., 347 U. S. 656 (threats of violence); Youngdahl v. Rainfair, Inc., 355 U. S. 131 (violence); Automobile Workers v. Russell, 356 U. S. 634 (violence); Linn v. Plant Guard Workers, 383 U. S. 53 (libel); Farmer v. Carpenters, 430 U. S. 290 (intentional infliction of mental distress).In Farmer, the Court held that a union member, who alleged that his union had engaged in a campaign of personal abuse and harassment against him, could maintain an action for damages against the union and its officers for the intentional infliction of emotional distress. One aspect of the alleged campaign was discrimination by the union in hiring hall referrals. Page 436 U. S. 196 Although such discrimination was arguably prohibited by §§ 8(b)(1)(A) and 8(b)(2) of the NLRA, and therefore an unfair labor practice charge could have been filed with the Board, the Court permitted the state action to proceed.The Court identified those factors which warranted a departure from the general preemption guidelines in the "local interest" cases. Two are relevant to the arguably prohibited branch of the Garmon doctrine. [Footnote 25] First, there existed a significant state interest in protecting the citizen from the challenged conduct. Second, although the challenged conduct occurred in the course of a labor dispute and an unfair labor practice charge could have been filed, the exercise of state jurisdiction over the tort claim entailed little risk of interference with the regulatory jurisdiction of the Labor Board. Although the arguable federal violation and the state tort arose in the same factual setting, the respective controversies Page 436 U. S. 197 presented to the state and federal forums would not have been the same. [Footnote 26]The critical inquiry, therefore, is not whether the State is enforcing a law relating specifically to labor relations or one of general application, but whether the controversy presented to the state court is identical to (as in Garner) or different from (as in Farmer) that which could have been, but was not, presented to the Labor Board. For it is only in the former situation that a state court's exercise of jurisdiction necessarily involves a risk of interference with the unfair labor practice jurisdiction of the Board which the arguably prohibited branch of the Garmon doctrine was designed to avoid. [Footnote 27] Page 436 U. S. 198In the present case, the controversy which Sears might have presented to the Labor Board is not the same as the controversy presented to the state court. If Sears had filed a charge, the federal issue would have been whether the picketing had a recognitional or work reassignment objective; decision of that issue would have entailed relatively complex factual and legal determinations completely unrelated to the simple question whether a trespass had occurred. [Footnote 28] Conversely, in the state action, Sears only challenged the location of the picketing; whether the picketing had an objective proscribed by federal law was irrelevant to the state claim. Accordingly, permitting the state court to adjudicate Sears' trespass claim would create no realistic risk of interference with the Labor Board's primary jurisdiction to enforce the statutory prohibition against unfair labor practices.The reasons why preemption of state jurisdiction is normally appropriate when union activity is arguably prohibited by federal law plainly do not apply to this situation; they therefore are insufficient to preclude a State from exercising jurisdiction limited to the trespassory aspects of that activity. Page 436 U. S. 199VThe question whether the arguably protected character of the Union's trespassory picketing provides a sufficient justification for preemption of the state court's jurisdiction over Sears' trespass claim involves somewhat different considerations.Apart from notions of "primary jurisdiction," [Footnote 29] there would be no objection to state courts' and the NLRB's exercising concurrent jurisdiction over conduct prohibited by the federal Act. But there is a constitutional objection to state court interference with conduct actually protected by the Act. [Footnote 30] Page 436 U. S. 200 Considerations of federal supremacy, therefore, are implicated to a greater extent when labor-related activity is protected than when it is prohibited. Nevertheless, several considerations persuade us that the mere fact that the Union's trespass was arguably protected is insufficient to deprive the state court of jurisdiction in this case.The first is the relative unimportance in this context of the "primary jurisdiction" rationale articulated in Garmon. In theory, of course, that rationale supports preemption regardless of which section of the NLRA is critical to resolving a controversy which may be subject to the regulatory jurisdiction of the NLRB. Indeed, at first blush, the primary jurisdiction rationale provides stronger support for preemption in this case when the analysis is focused upon the arguably protected, rather than the arguably prohibited, character of the Union's conduct. For to the extent that the Union's picketing was arguably protected, there existed a potential overlap between the controversy presented to the state court, Page 436 U. S. 201 and that which the Union might have brought before the NLRB. [Footnote 31] Prior to granting any relief from the Union's continuing trespass, the state court was obligated to decide that the trespass was not actually protected by federal law, a determination which might entail an accommodation of Sears' property rights and the Union's § 7 rights. In an unfair labor practice proceeding initiated by the Union, the Board might have been required to make the same accommodation. [Footnote 32]Although it was theoretically possible for the accommodation issue to be decided either by the state court or by the Labor Board, there was, in fact, no risk of overlapping jurisdiction in this case. The primary jurisdiction rationale justifies preemption only in situations in which an aggrieved party has a reasonable opportunity either to invoke the Board's jurisdiction himself or else to induce his adversary to do so. In this case, Sears could not directly obtain a Board ruling on the question whether the Union's trespass was federally protected. Such a Board determination could have been obtained only if the Union had filed an unfair labor practice charge alleging that Sears had interfered with the Union's § 7 right to engage in peaceful picketing on Sears' property. By demanding that the Union remove its pickets from the store's property, Sears in fact pursued a course of action which gave the Union Page 436 U. S. 202 the opportunity to file such a charge. But the Union's response to Sears' demand foreclosed the possibility of having the accommodation of § 7 and property rights made by the Labor Board; instead of filing a charge with the Board, the Union advised Sears that the pickets would only depart under compulsion of legal process.In the face of the Union's intransigence, Sears had only three options: permit the pickets to remain on its property; forcefully evict the pickets; or seek the protection of the State's trespass laws. Since the Union's conduct violated state law, Sears legitimately rejected the first option. Since the second option involved a risk of violence, Sears surely had the right -- perhaps even the duty -- to reject it. Only by proceeding in state court, therefore, could Sears obtain an orderly resolution of the question whether the Union had a federal right to remain on its property.The primary jurisdiction rationale unquestionably requires that, when the same controversy may be presented to the state court or the NLRB, it must be presented to the Board. But that rationale does not extend to cases in which an employer has no acceptable method of invoking, or inducing the Union to invoke, the jurisdiction of the Board. [Footnote 33] We are therefore persuaded that the primary jurisdiction rationale does not provide a sufficient justification for preempting state jurisdiction over arguably protected conduct when the party who Page 436 U. S. 203 could have presented the protection issue to the Board has not done so and the other party to the dispute has no acceptable means of doing so. [Footnote 34]This conclusion does not, however, necessarily foreclose the possibility that preemption may be appropriate. The danger of state interference with federally protected conduct is the principal concern of the second branch of the Garmon doctrine. To allow the exercise of state jurisdiction in certain contexts might create a significant risk of misinterpretation of federal law and the consequent prohibition of protected conduct. In those circumstances, it might be reasonable to infer that Congress preferred the costs inherent in a jurisdictional hiatus to the frustration of national labor policy which might accompany the exercise of state jurisdiction. Thus, the acceptability of "arguable protection" as a justification for preemption in a given class of cases is, at least in part, a function of the strength of the argument that § 7 does, in fact, protect the disputed conduct. Page 436 U. S. 204The Court has held that state jurisdiction to enforce its laws prohibiting violence, [Footnote 35] defamation, [Footnote 36] the intentional infliction of emotional distress, [Footnote 37] or obstruction of access to property [Footnote 38] is not preempted by the NLRA. But none of those violations of state law involves protected conduct. In contrast, some violations of state trespass laws may be actually protected by § 7 of the federal Act.In NLRB v. Babcock & Wilcox Co., 351 U. S. 105, for example, the Court recognized that, in certain circumstances, nonemployee union organizers may have a limited right of access to an employer's premises for the purpose of engaging in organization solicitation. [Footnote 39] And the Court has indicated that Babcock extends to § 7 rights other than organizational activity, though the "locus" of theaccommodation of § 7 rights and private property rights . . . 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.Hudgens v. NLRB, 424 U. S. 507, 424 U. S. 522.For purpose of analysis, we must assume that the Union could have proved that its picketing was, at least in the absence of a trespass, protected by § 7. The remaining question is whether, under Babcock, the trespassory nature of the Page 436 U. S. 205 picketing caused.it to forfeit its protected status. Since it cannot be said with certainty that, if the Union had filed an unfair labor practice charge against Sears, the Board would have fixed the locus of the accommodation at the unprotected end of the spectrum, it is indeed "arguable" that the Union's peaceful picketing, though trespassory, was protected. Nevertheless, permitting state courts to evaluate the merits of an argument that certain trespassory activity is protected does not create an unacceptable risk of interference with conduct which the Board, and a court reviewing the Board's decision, would find protected. For while there are unquestionably examples of trespassory union activity in which the question whether it is protected is fairly debatable, experience under the Act teaches that such situations are rare, and that a trespass is far more likely to be unprotected than protected.Experience with trespassory organizational solicitation by nonemployees is instructive in this regard. While Babcock indicates that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general rule. To gain access, the union has the burden of showing that no other reasonable means of communicating its organizational message to the employees exists or that the employer's access rules discriminate against union solicitation. [Footnote 40] That the burden imposed on the union is a heavy one is evidenced by the fact that the balance struck by the Board and the courts under the Babcock accommodation principle has rarely been in favor of trespassory organizational activity. [Footnote 41] Page 436 U. S. 206Even on the assumption that picketing to enforce area standards is entitled to the same deference in the Babcock accommodation analysis as organizational solicitation, [Footnote 42] it would be unprotected in most instances. While there does exist some risk that state courts will on occasion enjoin a trespass that the Board would have protected, the significance of this risk is minimized by the fact that, in the cases in which the argument in favor of protection is the strongest, the union is likely to invoke the Board's jurisdiction, and thereby avoid the state forum. Whatever risk of an erroneous state court adjudication does exist is outweighed by the anomalous consequence of a rule which would deny the employer access to any forum in which to litigate either the trespass issue or the Page 436 U. S. 207 protection issue in those cases in which the disputed conduct is least likely to be protected by § 7.If there is a strong argument that the trespass is protected in a particular case, a union can be expected to respond to an employer demand to depart by filing an unfair labor practice charge; the protection question would then be decided by the agency experienced in accommodating the § 7 rights of unions and the property rights of employers in the context of a labor dispute. But if the argument for protection is so weak that it has virtually no chance of prevailing, a trespassing union would be well advised to avoid the jurisdiction of the Board and to argue that the protected character of its conduct deprives the state court of jurisdiction.As long as the union has a fair opportunity to present the protection issue to the Labor Board, it retains meaningful protection against the risk of error in a state tribunal. In this case, the Union failed to invoke the jurisdiction of the Labor Board, [Footnote 43] and Sears had no right to invoke that jurisdiction, and could not even precipitate its exercise without resort to self-help. Because the assertion of state jurisdiction in a case of this kind does not create a significant risk of prohibition of protected conduct, we are unwilling to presume that Congress intended the arguably protected character of the Union's conduct to deprive the California courts of jurisdiction to entertain Sears' trespass action. [Footnote 44] Page 436 U. S. 208The judgment of the Supreme Court of California is therefore reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtSears, Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978)Sears, Roebuck & Co. v. San Diego CountyDistrict Council of CarpentersNo. 76-750Argued November 7, 1977Decided May 15, 1978436 U.S. 180SyllabusUpon determining that certain carpentry work in petitioner's department store was being done by men who had not been dispatched from its hiring hall, respondent Union established picket lines on petitioner's property. When the Union refused petitioner's demand to remove the pickets, petitioner filed suit in the California Superior Court and obtained a preliminary injunction against the continuing trespass, and the Court of Appeal affirmed. The California Supreme Court reversed, holding that, because the picketing was both arguably protected by § 7 of the National Labor Relations Act and arguably prohibited by § 8, state jurisdiction was preempted under the guidelines of San Diego Building Trades Council v. Garmon, 359 U. S. 236.Held:1. The reasons why preemption of state jurisdiction is normally appropriate when union activity is arguably prohibited by federal law do not apply to this case, and therefore they are insufficient to preclude the State from exercising jurisdiction limited to the trespassory aspects of the Union's picketing. Pp. 436 U. S. 190-198.(a) The critical inquiry is not whether the State is enforcing a law relating specifically to labor relations or one of general application, but whether the controversy presented to the state court is identical to or different from that which could have been, but was not, presented to the National Labor Relations Board, for it is only in the former situation that a state court's exercise of jurisdiction necessarily involves a risk of interference with the NLRB's unfair labor practice jurisdiction that the arguably prohibited branch of the Garmon doctrine was designed to avoid. Pp. 436 U. S. 190-197.(b) Here the controversy that petitioner might have presented to the NLRB is not the same as the controversy presented to the state court. Had petitioner filed an unfair labor practice charge with the NLRB, the issue would have been whether the picketing had a recognitional or work reassignment objective, whereas, in the state court, petitioner only challenged the location of the picketing. Accordingly, permitting the state court to adjudicate petitioner's trespass claim creates Page 436 U. S. 181 no realistic risk of interference with the NLRB's primary jurisdiction to enforce the statutory prohibition against unfair labor practices. P. 436 U. S. 198.2. Nor does the arguably protected character of the Union's picketing provide a sufficient justification for preemption of the state court's jurisdiction over petitioner's trespass claim. Pp. 436 U. S. 199-207.(a) The "primary jurisdiction" rationale of Garmon, requiring that, when the same controversy may be presented to the state court or the NLRB, it must be presented to the NLRB, does not provide a sufficient justification for preempting state jurisdiction over arguably protected conduct when, as in this case, the party who could have presented the protection issue to the NLRB has not done so, and the other party to the dispute has no acceptable means of doing so. Pp. 436 U. S. 202-203.(b) While it cannot be said with certainty that, if the Union had filed an unfair labor practice charge against petitioner, the NLRB would have fixed the locus of the accommodation of petitioner's property rights and the Union's § 7 rights at the unprotected end of the spectrum, it is "arguable" that the Union's peaceful picketing, though trespassory, was protected, but, nevertheless, permitting state courts to evaluate the merits of an argument that certain trespassory activity is protected does not create an unacceptable risk of interference with conduct that the NLRB, and a court reviewing the NLRB's decision, would find protected. Pp. 436 U. S. 203-207.17 Cal. 3d 893, 553 P.2d 603, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., post, p. 436 U. S. 208, and POWELL, J., post, p. 436 U. S. 212, filed concurring opinions. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 436 U.S. 214. Page 436 U. S. 182

1958_489

MR. JUSTICE CLARK delivered the opinion of the Court.Petitioners stand convicted on a single-count indictment charging a conspiracy under § 1 of the Sherman Act. They contend that the trial judge erred in refusing to permit them to inspect the grand jury minutes covering the testimony before that body of a key government witness at the trial. The Court of Appeals affirmed the convictions, 260 F.2d 397. With reference to the present claim, it held that Rule 6(e) of the Federal Rules of Criminal Procedure [Footnote 1] committed the inspection or not of grand jury minutes to the sound discretion of the trial judge, Page 360 U. S. 397 and that, in this instance, no abuse of that discretion had been shown. We granted certiorari limited to the question posed by this ruling. 358 U.S. 917. We conclude that, in the circumstances of this case, the trial court did not err in refusing to make Jonas' grand jury testimony available to petitioners for use in cross-examination.The indictment returned in the case named as defendants seven corporations, all manufacturers of mirrors, and three of their officers. However, only three of the corporations are petitioners here, along with one individual, J. A. Messer, Sr. The indictment charged a conspiracy to fix the price of plain plate glass mirrors sold in interstate commerce. It is not necessary for our purposes to detail the facts of this long trial, the record of which covers 860 pages. It is sufficient to say that the Government proved its case through 10 witnesses, the last of whom was Jonas. He was President of a large North Carolina mirror manufacturing company, and had a reputation for independence in the industry. Although neither he nor his corporation was indicted, the latter was made a co-conspirator. The evidence indicates that the conspiracy was consummated at two meetings held on successive days during the week of the annual meeting of the Mirror Manufacturers Association in 1954 at Asheville, North Carolina. Jonas, not being a member of the Association, did not attend the convention. Talk at the convention regarding prices culminated in telephone calls by several representatives of mirror manufacturers to Jonas concerning his attitude on raising prices. On the day following these calls, Jonas and three of the participants in the conspiracy met at an inn away from the convention headquarters and discussed "prices." Within three days thereafter, each of the manufacturers announced an identical price increase, which was approximately 10 percent. Jonas' testimony, of course, was confined to the telephone calls and the meeting at the inn Page 360 U. S. 398 where the understanding was finalized. The Government admits that he was an "important" witness. However, proof of the conspiracy was overwhelming aside from Jonas' testimony. While he was the only witness who characterized the outcome of the meetings as an "agreement" on prices, no witness negatived this conclusion, and the identical price lists that followed the meeting at the inn were little less than proof positive.After the conclusion of Jonas' testimony, defense counsel interrogated him as to the number of times he appeared and the subject of his testimony before the grand jury. Upon ascertaining that Jonas had testified three times on "the same general subject matter," counsel moved for the delivery of the grand jury minutes. He stated that the petitioners had "a right . . . to inspect the Grand Jury record of the testimony of this witness after he has completed his direct examination" relating to "the same general subject matter" as his trial testimony. [Footnote 2] As authority for "the automatic delivery of Grand Jury transcripts" under such circumstances, counsel cited Jencks v. United States, 353 U. S. 657 (1957). As previously indicated, the motion was denied.It appears to us clear that Jencks v. United States, supra, is in nowise controlling here. It had nothing to do with grand jury proceedings and its language was not intended to encompass grand jury minutes. Likewise, it is equally clear that Congress intended to exclude those minutes from the operation of the so-called Jencks Act, 71 Stat. 595, 18 U.S.C. (Supp. V, 1958) § 3500. [Footnote 3]Petitioners concede, as they must, that any disclosure of grand jury minutes is covered by Fed.Rules Crim.Proc. 6(e) promulgated by this Court in 1946 after the Page 360 U. S. 399 approval of Congress. In fact, the federal trial courts as well as the Courts of Appeals have been nearly unanimous in regarding disclosure as committed to the discretion of the trial judge. [Footnote 4] Our cases announce the same principle, [Footnote 5] and Rule 6(e) is but declaratory of it. [Footnote 6] As recently as last Term, we characterized cases where grand jury minutes are used "to impeach a witness, to refresh his recollection, to test his credibility, and the like," as instances of "particularized need where the secrecy of the proceedings is lifted discretely and limitedly." United States v. Procter & Gamble, 356 U. S. 677, 356 U. S. 683 (1958).Petitioners argue, however, that the trial judge's discretion under Rule 6(e) must be exercised in accordance with the rationale of Jencks -- namely, upon a showing on cross-examination that a trial witness testified before the grand jury -- and nothing more -- the defense has a "right" to the delivery to it of the witness' grand jury testimony.This conclusion, however, runs counter to "a long established policy" of secrecy, United States v. Procter & Gamble, supra, 356 U.S. at 356 U. S. 681, older than our Nation itself. The reasons therefor are manifold, id., 356 U.S. at 356 U. S. 682, and are compelling when viewed in the light of the history and modus operandi of the grand jury. Its establishment in the Constitution "as the sole method for preferring charges in serious criminal cases" indeed "shows the high place it [hold] as an instrument of justice." Costello v. United States, 350 U. S. 359, 350 U. S. 362 (1956). Ever since this action Page 360 U. S. 400 by the Fathers, the American grand jury, like that of England,"has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor."Ibid. Indeed, indictments may be returned on hearsay, or for that matter, even on the knowledge of the grand jurors themselves. Id. at 350 U. S. 362-363. To make public any part of its proceedings would inevitably detract from its efficacy. Grand jurors would not act with that independence required of an accusatory and inquisitorial body. Moreover, not only would the participation of the jurors be curtailed, but testimony would be parsimonious if each witness knew that his testimony would soon be in the hands of the accused. Especially is this true in antitrust proceedings where fear of business reprisal might haunt both the grand juror and the witness. And this "go slow" sign would continue as realistically at the time of trial as theretofore.It does not follow, however, that grand jury minutes should never be made available to the defense. This Court has long held that there are occasions, see United States v. Procter & Gamble, supra, at 356 U. S. 683, when the trial judge may, in the exercise of his discretion, order the minutes of a grand jury witness produced for use on his cross-examination at trial. Certainly "disclosure is wholly proper where the ends of justice require it." United States v. Socony-Vacuum Oil Co., supra, at 310 U. S. 234.The burden, however, is on the defense to show that "a particularized need" exists for the minutes which outweighs the policy of secrecy. We have no such showing here. As we read the record, the petitioners failed to show any need whatever for the testimony of the witness Jonas. They contended only that they had a "right" to the transcript because it dealt with subject matter generally covered at the trial. Petitioners indicate that the trial judge required a showing of contradiction Page 360 U. S. 401 between Jonas' trial and grand jury testimony. Such a preliminary showing would not, of course, be necessary. While in a colloquy with counsel, the judge did refer to such a requirement, we read his denial as being based on the breadth of petitioners' claim. Petitioners also claim error because the trial judge failed to examine the transcript himself for any inconsistencies. But we need not consider that problem, because petitioners made no such request of the trial judge. The Court of Appeals apparently was of the view that, even if the trial judge had been requested to examine the transcript, he would not have been absolutely required to do so. It is contended here that the Court of Appeals for the Second Circuit has reached a contrary conclusion. United States v. Spangelet, 258 F.2d 338. Be that as it may, resolution of that question must await a case where the issue is presented by the record. The short of it is that, in the present case, the petitioners did not invoke the discretion of the trial judge, but asserted a supposed absolute right, a right which we hold they did not have. The judgment is therefore affirmed.Affirmed

U.S. Supreme CourtPittsburgh Plate Glass Co. v. United States, 360 U.S. 395 (1959)Pittsburgh Plate Glass Co. v. United StatesNo. 489Argued April 28, 1959Decided June 22, 1959*360 U.S. 395SyllabusPetitioners were convicted in a Federal District Court of conspiring to fix prices of plain plate glass mirrors in violation of §1 of the Sherman Act. After a key government witness had testified at their trial and had admitted that he had testified on the same general subject matter before the grand jury which indicted petitioners, their counsel moved for production of the grand jury minutes, not attempting to show any particularized need for them, but claiming an absolute right to their production under Jencks v. United States, 353 U. S. 657. This motion was denied by the trial judge.Held: under Rule 6(e) of the Federal Rules of Criminal Procedure, the question whether the grand jury minutes should be produced was committed to the sound discretion of the trial judge; no abuse of his discretion has been shown, and petitioners' conviction is sustained. Pp. 360 U. S. 396-401.(a) Neither Jencks v. United States, supra, nor 18 U.S.C. § 3500, which superseded its doctrine, has any bearing on this case, since neither of them relates to grand jury minutes. P. 360 U. S. 398.(b) Under Rule 6(e) of the Federal Rules of Criminal Procedure, the question whether grand jury minutes should be disclosed is committed to the sound discretion of the trial judge. Pp. 360 U. S. 398-399.(c) No particularized need for production of the grand jury's minutes having been shown, the trial judge did not err in denying their production. United States v. Procter & Gamble, 356 U. S. 677. Pp. 360 U. S. 399-401.260 F.2d 397 affirmed. Page 360 U. S. 396

1970_5175

MR. JUSTICE WHITE delivered the opinion of the Court.This case raises an important issue concerning the construction of the Supremacy Clause of the Constitution -- whether Ariz.Rev.Stat.Ann. § 28-1163(b) (1956) which is part of Arizona's Motor Vehicle Safety Responsibility Act, is invalid under that clause as being in conflict with the mandate of § 17 of the Bankruptcy Act, 11 U.S. c. § 35 providing that receipt of a discharge in bankruptcy fully discharges all but certain specified judgments. The courts below, concluding that this case was controlled by Kesler v. Department of Public Safety, 369 U. S. 153 (1962), and Reitz v. Mealey, 314 U. S. 33 (1941), two earlier opinions of this Court dealing with alleged conflicts between the Bankruptcy Act and state financial responsibility laws, ruled against the claim of conflict and upheld the Arizona statute.On July 8, 1965 petitioner Adolfo Perez, driving a car registered in his name, was involved in an automobile accident in Tucson, Arizona. The Perez automobile was not covered by liability insurance at the time of the collision. The driver of the second car was the minor daughter of Leonard Pinkerton, and in September, 1966, the Pinkertons sued Mr. and Mrs. Perez in state court for personal injuries and property damage sustained in the accident. On October 31, 1967, the petitioners confessed judgment in this suit, and a judgment order was entered against them on November 8, 1967 for $2,425.98 plus court costs.Mr. and Mrs. Perez each filed a voluntary petition in bankruptcy in Federal District Court on November 6, 1967. Each of them duly scheduled the judgment debt Page 402 U. S. 639 to the Pinkertons. The District Court entered orders on July 8, 1968, discharging both Mr. and Mrs. Perez from all debts and claims provable against their estates, including the Pinkerton judgment. 11 U.S.C. § 35; Lewis v. Roberts, 267 U. S. 467 (1925).During the pendency of the bankruptcy proceedings, the provisions of the Arizona Motor Vehicle Safety Responsibility Act came into play. Although only one provision of the Arizona Act is relevant to the issue presented by this case, it is appropriate to describe the statutory scheme in some detail. The Arizona statute is based on the Uniform Motor Vehicle Safety Responsibility Act promulgated by the National Conference on Street and Highway Safety. [Footnote 1] Articles 1 and 2 of the Act deal, respectively, with definitional matters and administration.The substantive provisions begin in Art. 3, which requires the posting of financial security by those involved in accidents. Section 28-1141 of that article requires suspension of licenses for unlawful failure to report accidents, and § 28-1142 (Supp. 1970-1971) provides that, within 60 days of the receipt of an accident report, the Superintendent of the Motor Vehicle Division of the Highway Department shall suspend the driver's license of the operator and the registration of the owner of a car involved in an accident"unless such operator or owner or both shall deposit security in a sum which is sufficient in the judgment of the superintendent to satisfy any judgment or judgments for damages resulting from the accident as may be recovered against the operator or owner."Under the same section, notice of such suspension and the amount of security required must be sent to the owner and operator not less than 10 days prior to the effective date of the suspension. This section does not apply if the owner or the operator carried liability Page 402 U. S. 640 insurance or some other covering bond at the time of the accident, or if such individual had previously qualified as a self-insurer under § 28-1222. Other exceptions to the requirement that security be posted are stated in § 28-1143. [Footnote 2] If none of these exceptions applies, the suspension continues until: (1) the person whose privileges were suspended deposits the security required under § 28-1142 (Supp. 1970-1971); (2) one year elapses from the date of the accident and the person whose privileges were suspended files proof with the Superintendent that no one has initiated an action for damages arising from the accident; (3) evidence is filed with the superintendent that a release from liability, an adjudication of nonliability, a confession of judgment, or some other written settlement agreement has been entered. [Footnote 3] As far as the record in the instant case shows, Page 402 U. S. 641 the provisions of Art. 3 were not invoked against petitioners, and the constitutional validity of these provisions is, of course, not before us for decision.Article 4 of the Arizona Act, which includes the only provision at issue here, deals with suspension of licenses and registrations for nonpayment of judgments. Interestingly, it is only when the judgment debtor in an automobile accident lawsuit -- usually an owner-operator like Mr. Perez -- fails to respond to a judgment entered against him that he must overcome two hurdles in order to regain his driving privileges. Section 28-1161, the first section of Art. 4, requires the state court clerk or judge, when a judgment [Footnote 4] has remained unsatisfied for 60 days after entry, to forward a certified copy of the judgment to the superintendent. [Footnote 5] This was done in the present case, and on March 13, 1968, Mr. and Mrs. Perez were served with notice that their drivers' licenses and registration were suspended pursuant to § 28-1162(A). [Footnote 6] Under other provisions of Art. 4, such suspension is to Page 402 U. S. 642 continue until the judgment is paid, [Footnote 7] and § 28-1163(b) specifically provides that"[a] discharge in bankruptcy following the rendering of any such judgment shall not relieve the judgment debtor from any of the requirements of this article."In addition to requiring satisfaction of the judgment debt, § 28-1163(A) provides that the license and registration"shall remain suspended and shall not be renewed, nor shall any license or registration be thereafter issued in the name of the person . . . until the person gives proof of financial responsibility"for a future period. [Footnote 8] Again, the validity of this limited requirement that some drivers post evidence of financial responsibility for the future in order to regain driving privileges is not questioned here. Nor is the broader issue of whether a Page 402 U. S. 643 State may require proof of financial responsibility as a precondition for granting driving privileges to anyone before us for decision. What is at issue here is the power of a State to include as part of this comprehensive enactment designed to secure compensation for automobile accident victims a section providing that a discharge in bankruptcy of the automobile accident tort judgment shall have no effect on the judgment debtor's obligation to repay the judgment creditor, at least insofar as such repayment may be enforced by the withholding of driving privileges by the State. It was that question, among others, which petitioners raised after suspension of their licenses and registration by filing a complaint in Federal District Court seeking declaratory and injunctive relief and requesting a three-judge court. They asserted several constitutional violations, and also alleged that § 28-1163(b) was in direct conflict with the Bankruptcy Act, and was thus violative of the Supremacy Clause of the Constitution. [Footnote 9] In support of their complaint, Mr. and Mrs. Perez filed affidavits stating that the suspension of their licenses and registration worked both physical and financial hardship upon them and their children. The District Judge granted the petitioners leave to proceed in forma pauperis, but thereafter granted the respondents' motion to dismiss the complaint for failure to state a claim upon which relief could be granted, citing Kesler and Reitz. [Footnote 10] The Court of Appeals affirmed, relying on Page 402 U. S. 644 the same two decisions. 421 F.2d 619 (CA9 1970). We granted certiorari. 400 U.S. 818 (1970).IDeciding whether a state statute is in conflict with a federal statute, and hence invalid under the Supremacy Clause, is essentially a two-step process of first ascertaining the construction of the two statutes and then determining the constitutional question whether they are in conflict. In the present case, both statutes have been authoritatively construed. In Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136 (1963), the Supreme Court of Arizona held that"[t]he Financial Responsibility Act has for its principal purpose the protection of the public using the highways from financial hardship which may result from the use of automobiles by financially irresponsible persons."93 Ariz. at 280, 380 P.2d at 140. The Arizona court has consistently adhered to this construction of its legislation, see Camacho v. Gardner, 104 Ariz. 555, 558, 456 P.2d 925, 928 (1969); New York Underwriters Ins. Co. v. Superior Court, 104 Ariz. 544, 456 P.2d 914 (1969); Sandoval v. Chenoweth, 102 Ariz. 241, 243, 428 P.2d 98, 100 (1967); Farmer v. Killingsworth, 102 Ariz. 44, 47, 424 P.2d 172, 175 (1967); Hastings v. Thurston, 100 Ariz. 302, 306, 413 P.2d 767, 770 (1966); Jenkins v. Mayflower Ins. Exchange, 93 Ariz. 287, 290, 380 P.2d 145, 147 (1963), and we are bound by its rulings. See, e.g., General Trading Co. v. State Tax Comm'n, 322 U. S. 335, 322 U. S. 337 (1944). Although the dissent seems unwilling to accept the Arizona Supreme Court's construction of the statute as expressive of the Act's primary purpose, [Footnote 11] Page 402 U. S. 645 and indeed characterizes that construction as unfortunate, post at 402 U. S. 667, a reading of the provisions outlined above leaves the impression that the Arizona Court's Page 402 U. S. 646 description of the statutory purpose is not only logical, but persuasive. The sole emphasis in the Act is one of providing leverage for the collection of damages from Page 402 U. S. 647 drivers who either admit that they are at fault or are adjudged negligent. The victim of another driver's carelessness, if he so desires, can exclude the superintendent entirely from the process of "deterring" a repetition of that driver's negligence. [Footnote 12] Further, if an Page 402 U. S. 648 accident is litigated and a special verdict that the defendant was negligent and the plaintiff contributorily negligent is entered, the result in Arizona, as in many other State, is that there is no liability for damages arising from the accident. Heimke v. Munoz, 106 Ariz. 26, 470 P.2d 107 (1970); McDowell v. Davis, 104 Ariz. 69, 448 P.2d 869 (1968). Under the Safety Responsibility Act, the apparent result of such a judgment is that no consequences are visited upon either driver -- although both have been found to have driven carelessly. See Ariz.Rev.Stat.Ann. §§ 28-1143(A)(4), 28-1144(3). Moreover, there are no provisions requiring drivers proved to be careless to stay off the roads for a period of time. Nor are there provisions requiring drivers who have caused accidents to attend some kind of driver improvement course, a technique that is not unfamiliar in sentencing for traffic offenses.Turning to the federal statute, the construction of the Bankruptcy Act is similarly clear. This Court on numerous occasions has stated that "[o]ne of the primary purposes of the bankruptcy act" is to give debtors "a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt." Local Loan Co. v. Hunt, 292 U. S. 234, 292 U. S. 244 (1934). Accord, e.g., Harris v. Zion's Savings Bank & Trust Co., 317 U. S. 447, 317 U. S. 451 (1943); Stellwagen v. Clum, 245 U. S. 605, 245 U. S. 617 (1918); Williams v. United States Fidelity & Guaranty Co., 236 U. S. 549, 236 U. S. 554-555 (1915). There can be no doubt, given Lewis v. Roberts, 267 U. S. 467 (1925), that Congress intended this "new opportunity" to include freedom from most kinds of preexisting tort judgments. Page 402 U. S. 649IIWith the construction of both statutes clearly established, we proceed immediately to the constitutional question whether a state statute that protects judgment creditors from "financially irresponsible persons" is in conflict with a federal statute that gives discharged debtors a new start "unhampered by the pressure and discouragement of preexisting debt." As early as Gibbons v. Ogden, 9 Wheat. 1 (1824), Chief Justice Marshall stated the governing principle -- that"acts of the State Legislatures . . . [which] interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution,"are invalid under the Supremacy Clause. Id. at 22 U. S. 211 (emphasis added). Three decades ago, MR. JUSTICE BLACK, after reviewing the precedents, wrote in a similar vein that, while"[t]his Court, in considering the validity of state laws in the light of treaties or federal laws touching the same subject, ha[d] made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference[,] . . . [i]n the final analysis,"our function is to determine whether a challenged state statute "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). Since Hines, the Court has frequently adhered to this articulation of the meaning of the Supremacy Clause. See, e.g., Nash v. Florida Industrial Comm'n, 389 U. S. 235, 389 U. S. 240 (1967); Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 376 U. S. 229 (1964); Colorado Anti-Discrimination Comm'n v. Continental Air Lines, Inc., 372 U. S. 714, 372 U. S. 722 (1963) (dictum); Free v. Bland, 369 U. S. 663, 369 U. S. 666 (1962); Hill v. Florida, 325 U. S. 538, 325 U. S. 542-543 (1945); Sola Electric Co. v. Jefferson Electric Co., 317 U. S. 173, 317 U. S. 176 (1942). Indeed, in Florida Lime & Page 402 U. S. 650 Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963), a recent case in which the Court was closely divided, all nine Justices accepted the Hines test. Id. at 373 U. S. 141 (opinion of the Court), 373 U. S. 165 (dissenting opinion).Both Kesler [Footnote 13] and Reitz, however, ignored this controlling principle. The Court in Kesler conceded that Utah's financial responsibility law left "the bankrupt to some extent burdened by the discharged debt," 369 U.S. at 369 U. S. 171, made "it more probable that the debt will be paid despite the discharge," id. at 369 U. S. 173, and thereby made "some inroad . . . on the consequences of bankruptcy. . . ." Id. at 369 U. S. 171. Utah's statute, in short, frustrated Congress' policy of giving discharged debtors a new start. But the Kesler majority was not concerned by this frustration. In upholding the statute, the majority opinion did not look to the effect of the legislation, but simply asserted that the statute was "not an Act for the Relief of Mulcted Creditors," id. at 369 U. S. 174, and was "not designed to aid collection of debts, but to enforce a policy against irresponsible driving. . . ." Id. at 369 U. S. 169. The majority, that is, looked to the purpose of the state legislation and upheld it because the purpose was not to circumvent the Bankruptcy Act, but to promote highway safety; those in dissent, however, were concerned that, whatever the purpose of the Utah Act, its"plain and inevitable effect . . . [was] to create a powerful weapon for collection of a debt from which [the] bankrupt [had] been released by federal law."Id. at 369 U. S. 183. Such a result, they argued, left "the States free . . . to impair . . . an important and historic policy Page 402 U. S. 651 of this Nation . . . embodied in its bankruptcy laws." Id. at 369 U. S. 185.The opinion of the Court in Reitz was, similarly, concerned not with the fact that New York's financial responsibility law frustrated the operation of the Bankruptcy Act, but with the purpose of the law, which was divined as the promotion of highway safety. As the Court said:"The penalty which § 94-b imposes for injury due to careless driving is not for the protection of the creditor merely, but to enforce a public policy that irresponsible drivers shall not, with impunity, be allowed to injure their fellows. The scheme of the legislation would be frustrated if the reckless driver were permitted to escape its provisions by the simple expedient of voluntary bankruptcy, and, accordingly, the legislature declared that a discharge in bankruptcy should not interfere with the operation of the statute. Such legislation is not in derogation of the Bankruptcy Act. Rather, it is an enforcement of permissible state policy touching highway safety."314 U.S. at 314 U. S. 37.The dissenting opinion written by MR. JUSTICE DOUGLAS for himself and three others noted that the New York legislation put "the bankrupt . . . at the creditor's mercy," with the results that,"[i]n practical effect, the bankrupt may be in as bad, or even worse, a position than if the state had made it possible for a creditor to attach his future wages"and that "[b]ankruptcy . . . [was not] the sanctuary for hapless debtors which Congress intended." Id. at 314 U. S. 41.We can no longer adhere to the aberrational doctrine of Kesler and Reitz that state law may frustrate the operation of federal law as long as the state legislature in passing its law had some purpose in mind other than Page 402 U. S. 652 one of frustration. Apart from the fact that it is at odds with the approach taken in nearly all our Supremacy Clause cases, such a doctrine would enable state legislatures to nullify nearly all unwanted federal legislation by simply publishing a legislative committee report articulating some state interest or policy -- other than frustration of the federal objective that would be tangentially furthered by the proposed state law. In view of the consequences, we certainly would not apply the Kesler doctrine in all Supremacy Clause cases. Although it is possible to argue that Kesler and Reitz are somehow confined to cases involving either bankruptcy or highway safety, analysis discloses no reason why the States should have broader power to nullify federal law in these fields than in others. Thus, we conclude that Kesler and Reitz can have no authoritative effect to the extent they are inconsistent with the controlling principle that any state legislation which frustrates the full effectiveness of federal law is rendered invalid by the Supremacy Clause. Section 28-1163(b) thus may not stand.IIIEven accepting the Supremacy Clause analysis of Kesler and Reitz -- that is, looking to the purpose, rather than the effect, of state laws -- those decisions are not dispositive of this case. Just as Kesler went a step beyond Reitz and broadened the holding of the earlier case, 369 U.S. at 369 U. S. 184 (dissenting opinion), so, in the present case, the respondents asked the courts below and this Court to expand the holdings of the two previous cases. The distinction between Kesler and Reitz and this case lies in the State's expressed legislative purpose.Kesler and Reitz were aberrational in their treatment of this question as well. The majority opinions in both cases assumed, without citation of state court authority or any indication that such precedent was unavailable, Page 402 U. S. 653 that the purpose of the state financial responsibility laws there under attack was not provision of relief to creditors, but rather deterrence of irresponsible driving. The assumption was, in effect, that all state legislatures which had enacted provisions such as § 28-1163(b) had concluded that an uninsured motorist about to embark in his car would be more careful on the road if he did not have available what the majority in Kesler cavalierly characterized as an "easy refuge in bankruptcy." 369 U.S. at 369 U. S. 173. [Footnote 14] Passing the question of whether the Court gave sufficient attention to binding state interpretations of state legislative purpose, and conceding that it employed proper technique in divining as obvious from their face the aim of the state enactments, the present case raises doubts about whether the Court was correct even in its basic assumptions. The Arizona Supreme Court has declared that Arizona's Safety Responsibility Act "has for its principal purpose the protection Page 402 U. S. 654 of the public . . . from financial hardship" resulting from involvement in traffic accidents with uninsured motorists unable to respond to a judgment. Schecter v. Killingsworth, 93 Ariz. at 280, 380 P.2d at 140. The Court in Kesler was able to declare, although the source of support is unclear, that the Utah statute could be upheld because it was "not an Act for the Relief of Mulcted Creditors" or a statute "designed to aid collection of debts." 369 U.S. at 369 U. S. 174, 369 U. S. 169. But here the respondents urge us to uphold precisely the sort of statute that Kesler would have stricken down -- one with a declared purpose to protect judgment creditors "from financial hardship" by giving them a powerful weapon with which to force bankrupts to pay their debts despite their discharge. Whereas the Acts in Kesler and Reitz had the effect of frustrating federal law but had, the Court said, no such purpose, the Arizona Act has both that effect and that purpose. Believing as we do that Kesler and Reitz are not in harmony with sound constitutional principle, they certainly should not be extended to cover this new and distinguishable case.IVOne final argument merits discussion. The dissent points out that the District of Columbia Code contains an anti-discharge provision similar to that included in the Arizona Act. Motor Vehicle Safety Responsibility Act of the District of Columbia, D.C.Code Ann. § 40464 (1967), 68 Stat. 132. In light of our decision today, the sum of the argument is to draw into question the constitutional validity of the District's anti-discharge section, for, as noted in the dissent, the Constitution confers upon Congress the power "[t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States." U.S.Const., Art. I, § 8, cl. 4 (emphasis Page 402 U. S. 655 added). It is asserted that "Congress must have regarded the two statutes as consistent and compatible," post at 402 U. S. 665, but such an argument assures a modicum of legislative attention to the question of consistency. The D.C.Code section does, of course, refer specifically to discharges, but its passage may, at most, be viewed as evidencing an opinion of Congress on the meaning of the general discharge provision enacted by an earlier Congress and interpreted by this Court as early as 1925. See Lewis v. Roberts, supra. In fact, in passing the initial and amended version of the District of Columbia financial responsibility law, Congress gave no attention to the interaction of the anti-discharge section with the Bankruptcy Act. [Footnote 15] Moreover, the legislative history is Page 402 U. S. 656 quite clear that, when Congress dealt with the subject of financial responsibility laws for the District, it based its work upon the efforts of the uniform commissioners which had won enactment in other States. [Footnote 16]Had Congress focused on the interaction between this minor subsection of the rather lengthy financial responsibility act and the discharge provision of the Bankruptcy Act, it would have been immediately apparent to the legislators that the only constitutional method for so defining the scope and effect of a discharge in bankruptcy was by amendment of the Bankruptcy Act, which, by its terms, is a uniform statute applicable in the States, Territories, and the District of Columbia. 11 U.S.C. § 1(29). To follow any other course would obviously be to legislate in such a way that a discharge in bankruptcy means one thing in the District of Columbia and something else in the States -- depending on state law -- a result explicitly prohibited by the uniformity requirement in the constitutional authorization to Congress to enact bankruptcy legislation.VFrom the foregoing, we think it clear that § 28-1163(b) of the Arizona Safety Responsibility Act is constitutionally invalid. 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 CourtPerez v. Campbell, 402 U.S. 637 (1971)Perez v. CampbellNo. 5175Argued January 19, 1971Decided June 1, 1971402 U.S. 637SyllabusThe provision that"discharge in bankruptcy following the rendering of any such judgment [as a result of an automobile accident] shall not relieve the judgment debtor from any of the requirements of this article,"contained in Ariz.Rev.Stat. § 28-1163(b), part of the Motor Vehicle Safety Responsibility Act, which the Arizona courts have construed as having as"its principal purpose the protection of the public using the highways from financial hardship which may result from the use of automobiles by financially irresponsible persons,"directly conflicts with § 17 of the Bankruptcy Act, which states that a discharge in bankruptcy fully discharges all but certain specified judgments, and is thus unconstitutional as violative of the Supremacy Clause. Kesler v. Department of Public Safety, 369 U. S. 153, and Reitz v. Mealey, 314 U. S. 33, have no authoritative effect to the extent they are inconsistent with the controlling principle that state legislation that frustrates the full effectiveness of federal law is invalidated by the Supremacy Clause. Pp. 402 U. S. 644-656.421 F.2d 619, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BLACK, DOUGLAS, BRENNAN, and MARSHALL JJ., joined. BLACKMUN, J., filed an opinion concurring in the result as to petitioner Emma Perez and dissenting as to petitioner Adolfo Perez, in which BURGER, C.J., and HARLAN and STEWART, JJ., joined, post, p. 402 U. S. 657. Page 402 U. S. 638

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(c) However, because the special retroactivity-related Social Security rules enacted in 1983 effectively singled out then-sitting federal judges for unfavorable treatment, the Compensation Clause forbids the application of the Social Security tax to those judges. Four features of the law, taken together, lead to the conclusion that it discriminates in a manner the Clause forbids. First, the statutory history, context, purpose, and language indicate that the category of "federal employees" is the appropriate class against which the asserted discrimination must be measured. Second, the practical upshot of defining "covered" system in the way the law did was to permit nearly every then-current federal employee, but not federal judges, to avoid the newly imposed obligation to pay Social Security taxes. Third, the new law imposed a substantial cost on federal judges with little or no expectation of substantial benefit for most of them. Inclusion meant a deduction of about $2,000 per year, whereas 95% of the then-active judges had already qualified for Social Security (due to private sector employment) before becoming judges. And participation would benefit only the minority of judges who had not worked the quarters necessary to be fully insured under Social Security. Fourth, the Government's sole justification for the statutory distinction between judges and other high-level federal employees-i. e., equalizing the financial burdens imposed by the noncontributory judicial retirement system and the contributory system to which the other employees belonged-is unsound because such equalization takes place not by offering all current federal employees (including judges) the same opportunities but by employing a statutory disadvantage which offsets an advantage related to those protections afforded judges by the Clause, and because the two systems are not equalized with any precision. Thus, the 1983 law is very different from the nondiscriminatory tax upheld in O'Malley, supra, at 282. The Government's additional arguments-that Article III protects judges only against a reduction in stated salary, not against indirect measures that only reduce take-home pay; that there is no evidence here that Congress singled out judges for special treatment in order to intimidate, influence, or punish them; and that the law disfavored not only judges but also the President and other high-ranking federal employees-are unconvincing. Pp. 572-578.2. The Compensation Clause violation was not cured by the 1984 pay increase for federal judges. The context in which that increase took place reveals nothing to suggest that it was intended to make whole the losses sustained by the pre-1983 judges. Rather, everything in the record suggests that the increase was meant to halt a slide in purchasing power resulting from continued and unadjusted-for inflation. Although a circumstance-specific approach is more complex than the Government's560proposed automatic approach, whereby a later salary increase would terminate a Compensation Clause violation regardless of the increase's purpose, there is no reason why such relief as damages or an exemption from Social Security would prove unworkable. Will, supra, distinguished. Pp. 578-581.203 F.3d 795, affirmed in part, reversed in part, and remanded.BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and KENNEDY, SOUTER, and GINSBURG, JJ., joined, and in which SCALIA, J., joined as to Parts I, II, and V. SCALIA, J., filed an opinion concurring in part and dissenting in part, post, p. 581. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 586. STEVENS, J., and O'CONNOR, J., took no part in the consideration or decision of the case.Paul R. Q. Wolfson argued the cause for the United States. With him on the briefs were Acting Solicitor General Underwood, former Solicitor General Waxman, Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, David M. Cohen, Douglas N. Letter, and Anne Murphy.Steven S. Rosenthal argued the cause for respondents.With him on the brief were W Stephen Smith and Ellen E. Deason.*JUSTICE BREYER delivered the opinion of the Court.The Constitution's Compensation Clause guarantees federal judges a "Compensation, which shall not be diminished during their Continuance in Office." U. S. Const., Art. III, § 1. The Court of Appeals for the Federal Circuit held that this Clause prevents the Government from collecting certain*Briefs of amici curiae urging affirmance were filed for the Federal Judges Association by Kevin M. Forde and Richard J. Prendergast; and for the Los Angeles County Bar Association et al. by Mark E. Haddad, Catherine V. Barrad, Paul J. Watford, Richard Walch, Evan A. Davis, Amitai Schwartz, Steven F. Pflaum, Richard William Austin, Barbara J. Collins, Dennis F. Kerrigan, Jr., P. Kevin Castel, Herbert H. Franks, Dennis A. Rendelman, and John J. Kenney.561Medicare and Social Security taxes from a small number of federal judges who held office nearly 20 years ago-before Congress extended the taxes to federal employees in the early 1980's.In our view, the Clause does not prevent Congress from imposing a "non-discriminatory tax laid generally" upon judges and other citizens, O'Malley v. Woodrough, 307 U. S. 277, 282 (1939), but it does prohibit taxation that singles out judges for specially unfavorable treatment. Consequently, unlike the Court of Appeals, we conclude that Congress may apply the Medicare tax-a nondiscriminatory tax-to thensitting federal judges. The special retroactivity-related Social Security rules that Congress enacted in 1984, however, effectively singled out then-sitting federal judges for unfavorable treatment. Hence, like the Court of Appeals, we conclude that the Clause forbids the application of the Social Security tax to those judges.I AThe Medicare law before us is straightforward. In 1965, Congress created a Federal Medicare "hospital insurance" program and tied its financing to Social Security. See Social Security Amendments of 1965, 79 Stat. 291. The Medicare law required most American workers (whom Social Security covered) to pay an additional Medicare tax. But it did not require Federal Government employees (whom Social Security did not cover) to pay that tax. See 26 U. S. C. §§ 3121(b)(5), (6) (1982 ed.).In 1982, Congress, believing that "[f]ederal workers should bear a more equitable share of the costs of financing the benefits to which many of them eventually became entitled," S. Rep. No. 97-494, pt. 1, p. 378 (1982), extended both Medicare eligibility and Medicare taxes to all currently employed federal employees as well as to all newly hired federal employees, Tax Equity and Fiscal Responsibility Act of 1982,562§ 278,96 Stat. 559-563. That new law meant that (as of January 1, 1983) all federal judges, like all other federal employees and most other citizens, would have to contribute between 1.30% and 1.45% of their federal salaries to Medicare's hospital insurance system. See 26 U. S. C. §§ 3101(b)(4)-(6).The Social Security law before us is more complex. In 1935, Congress created the Social Security program. See Social Security Act, 49 Stat. 620. For nearly 50 years, that program covered employees in the private sector, but it did not cover Government employees. See 26 U. S. C. §§ 3121(b)(5), (6) (1982 ed.) (excluding federal employees); § 3121(b)(7) (excluding state employees). In 1981, a National Commission on Social Security Reform, convened by the President and chaired by Alan Greenspan, noting the need for "action ... to strengthen the financial status" of Social Security, recommended that Congress extend the program to cover Federal, but not state or local, Government employees. Report of the National Commission on Social Security Reform 2-1, 2-7 (Jan. 1983). In particular, the Commission recommended that Congress require all incoming federal employees (those hired after January 1, 1984) to enter the Social Security system and to pay Social Security taxes. Id., at 2-7. The Commission emphasized that "present Federal employees will not be affected by this recommendation." Id., at 2-8.In 1983, Congress enacted the Commission's recommendation into law (effective January 1, 1984) with an important exception. See Social Security Amendments of 1983, § 101(b)(1), 97 Stat. 69 (amending 26 U. S. C. §§ 3121(b)(5), (6)). As the Commission had recommended, Congress required all newly hired federal employees to participate in the Social Security program. It also permitted, without requiring, almost all (about 96%) then-currently employed federal employees to participate.Contrary to the Commission's recommendation, however, the law added an exception. That exception seemed to re-563strict the freedom of choice of the remaining 4% of all current employees. This class consisted of the President, Vice President, high-level Executive Branch employees, Members of Congress, a few other Legislative Branch employees, and all federal judges. See 42 U. S. C. §§ 410(a)(5)(C)-(G); see also H. R. Rep. No. 98-25, p. 39 (1983); H. R. Conf. Rep. No. 98-542, p. 13 (1983) (noting that for these current federal employees "the rules are being changed in the middle of the game"). The new law seemed to require this class of current federal employees to enter into the Social Security program, see 42 U. S. C. §§ 410(a)(5)(C)-(G). But, as to almost all of these employees, the new law imposed no additional financial obligation or burden.That is because the new law then created an exception to the exception, see Federal Employees' Retirement Contribution Temporary Adjustment Act of 1983, §§ 203(a)(2), 208, 97 Stat. 1107, 1111 (codified at note following 5 U. S. C. § 8331). The exception to the exception said that any member of this small class of current high-level officials (4% of all thencurrent employees) who contributed to a "covered" retirement program nonetheless could choose to modify their participation in a manner that left their total payroll deduction-for retirement and Social Security-unchanged. A "covered" employee paying 7% of salary to a "covered" program could continue to pay that 7% and no more, in effect avoiding any additional financial obligation as a result of joining Social Security.The exception to the exception defined a "covered" program to include the Civil Service Retirement and Disability System-a program long available to almost all federal employees-as well as any other retirement system to which an employee must contribute. §§ 203(a)(2)(A), (D). The definition of "covered" program, however, did not encompass the pension system for federal judges-a system that is noncontributory in respect to a judge (but contributory in respect to a spouse).564The upshot is that the 1983 law was specifically aimed at extending Social Security to federal employees. It left about 96% of those who were currently employed free to choose not to participate in Social Security, thereby avoiding any increased financial obligation. It required the remaining 4% to participate in Social Security while freeing them of any added financial obligation (or additional payroll deduction) so long as they previously had participated in other contributory retirement programs. But it left those who could not participate in a contributory program without a choice. Their financial obligations (and payroll deductions) had to increase. And this last mentioned group consisted almost exclusively of federal judges.BThis litigation began in 1989, when eight federal judges, all appointed before 1983, sued the Government for "compensation" in the United States Claims Court. They argued that the 1983 law, in requiring them to pay Social Security taxes, violated the Compensation Clause. Initially, the Claims Court ruled against the judges on jurisdictional grounds. 21 Cl. Ct. 786 (1990). The Court of Appeals reversed. 953 F.2d 626 (CA Fed. 1992). On remand, eight more judges joined the lawsuit. They contested the extension to judges of the Medicare tax as well.The Court of Federal Claims held against the judges on the merits. 31 Fed. Cl. 436 (1994). The Federal Circuit reversed, ordering summary judgment for the judges as to liability. 64 F.3d 647 (1995). The Government petitioned this Court for a writ of certiorari. Some Members of this Court were disqualified from hearing the matter, and we failed to find a quorum of six Justices. See 28 U. S. C. § 1. Consequently, the Court of Appeals' judgment was affirmed "with the same effect as upon affirmance by an equally divided court." 519 U. S. 801 (1996); see 28 U. S. C. § 2109.565On remand from the Court of Appeals, the Court of Federal Claims found (a) that the 6-year statute of limitations, see 28 U. S. C. §§ 2401(a), 2501, barred some claims, including all Medicare claims; and (b) that, in any event, a subsequently enacted judicial salary increase promptly cured any violation, making damages minimal. 38 Fed. Cl. 166 (1997). The Court of Appeals (eventually en banc) reversed both determinations. 203 F.3d 795 (CA Fed. 2000).The Government again petitioned for certiorari. It asked this Court to consider two questions:(1) Whether Congress violated the Compensation Clause when it extended the Medicare and Social Security taxes to the salaries of sitting federal judges; and(2) If so, whether any such violation ended when Congress subsequently increased the salaries of all federal judges by an amount greater than the new taxes.Given the specific statutory provisions at issue and the passage of time, seven Members of this Court had (and now have) no financial stake in the outcome of this case. Consequentlya quorum was, and is, available to consider the questions presented. And we granted the Government's petition for a writ of certiorari.IIAt the outset, the judges claim that the "law of the case" doctrine prevents us from now considering the first question presented, namely, the scope of the Compensation Clause. They note that the Government presented that same question in its petition from the Court of Appeals' earlier ruling on liability. They point out that our earlier denial of that petition for lack of a quorum had the "same effect as" an "affirmance by an equally divided court," 28 U. S. C. § 2109. And they add that this Court has said that an affirmance by an equally divided Court is "conclusive and binding upon the parties as respects that controversy." United States v. Pink, 315 U. S. 203, 216 (1942).566Pink, however, concerned a case, United States v. Moscow Fire Ins. Co., 309 U. S. 624 (1940), in which this Court had heard oral argument and apparently considered the merits prior to concluding that affirmance by an equally divided Court was appropriate. The law of the case doctrine presumes a hearing on the merits. See, e. g., Quern v. Jordan, 440 U. S. 332, 347, n. 18 (1979). This case does not involve a previous consideration of the merits. Indeed, when this case previously was before us, due to absence of a quorum, we could not consider either the merits or whether to consider those merits through grant of a writ of certiorari. This fact, along with the obvious difficulty of finding other equivalent substitute forums, convinces us that Pink's statement does not control the outcome here, that the "law of the case" doctrine does not prevent our considering both issues presented, and that we should now proceed to decide them.IIIThe Court of Appeals upheld the judges' claim of tax immunity upon the authority of Evans v. Gore, 253 U. S. 245 (1920). That case arose in 1919 when Judge Walter Evans challenged Congress' authority to include sitting federal judges within the scope of a federal income tax law that the Sixteenth Amendment had authorized a few years earlier. See Revenue Act of 1918, § 213, 40 Stat. 1065 (defining "gross income" to include judicial salaries). In Evans itself, the Court held that the Compensation Clause barred application of the tax to Evans, who had been appointed a judge before Congress enacted the tax. 253 U. S., at 264. A few years later, the Court extended Evans, making clear that its rationale covered not only judges appointed before Congress enacted a tax but also judges whose appointments took place after the tax had become law. See Miles v. Graham, 268 U. S. 501, 509 (1925).Fourteen years after deciding Miles, this Court overruled Miles. O'Malley v. Woodrough, 307 U. S. 277 (1939). But,567as the Court of Appeals noted, this Court did not expressly overrule Evans itself. 64 F. 3d, at 650. The Court of Appeals added that, if "changes in judicial doctrine" had significantly undermined Evans' holding, this "Court itself would have overruled the case." Ibid. Noting that this case is like Evans (involving judges appointed before enactment of the tax), not like O'Malley (involving judges appointed after enactment of the tax), the Court of Appeals held that Evans controlled the outcome. 64 F. 3d, at 650. Hence application of both Medicare and Social Security taxes to these pre enactment judges violated the Compensation Clause.The Court of Appeals was correct in applying Evans to the instant case, given that "it is this Court's prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U. S. 3, 20 (1997); see also Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). Nonetheless, the court below, in effect, has invited us to reconsider Evans. We now overrule Evans insofar as it holds that the Compensation Clause forbids Congress to apply a generally applicable, nondiscriminatory tax to the salaries of federal judges, whether or not they were appointed before enactment of the tax.The Court's opinion in Evans began by explaining why the Compensation Clause is constitutionally important, and we begin by reaffirming that explanation. As Evans points out, 253 U. S., at 251-252, the Compensation Clause, along with the Clause securing federal judges appointments "during good Behavior," U. S. Const., Art. III, § i-the practical equivalent of life tenure-helps to guarantee what Alexander Hamilton called the "complete independence of the courts of justice." The Federalist No. 78, p. 466 (C. Rossiter ed. 1961). Hamilton thought these guarantees necessary because the Judiciary is "beyond comparison the weakest of the three" branches of Government. Id., at 465-466. It has "no influence over either the sword or the purse." Id., at 465.568It has "no direction either of the strength or of the wealth of the society." Ibid. It has "neither FORCE nor WILL but merely judgment." Ibid.Hamilton's view, and that of many other Founders, was informed by firsthand experience of the harmful consequences brought about when a King of England "made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries." The Declaration of Independence ~ 11. And Hamilton knew that "a power over a man's subsistence amounts to a power over his will." The Federalist No. 79, at 472. For this reason, he observed, "[n]ext to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support." Ibid.; see also id., No. 48, at 310 (J. Madison) ("[A]s the legislative department alone has access to the pockets of the people, and has ... full discretion ... over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former").Evans properly added that these guarantees of compensation and life tenure exist, "not to benefit the judges," but "as a limitation imposed in the public interest." 253 U. S., at 253. They "promote the public weal," id., at 248, in part by helping to induce "learned" men and women "to quit the lucrative pursuits" of the private sector, 1 J. Kent, Commentaries on American Law *294, but more importantly by helping to secure an independence of mind and spirit necessary if judges are "to maintain that nice adjustment between individual rights and governmental powers which constitutes politicalliberty," W. Wilson, Constitutional Government in the United States 143 (1911).Chief Justice John Marshall pointed out why this protection is important. A judge may have to decide "between the Government and the man whom that Government is prosecuting: between the most powerful individual in the569community, and the poorest and most unpopular." Proceedings and Debates of the Virginia State Convention, of 18291830, p. 616 (1830). A judge's decision may affect an individual's "property, his reputation, his life, his all." Ibid. In the "exercise of these duties," the judge must "observe the utmost fairness." Ibid. The judge must be "perfectly and completely independent, with nothing to influence or contro[l] him but God and his conscience." Ibid. The "greatest scourge ... ever inflicted," Marshall thought, "was an ignorant, a corrupt, or a dependent Judiciary." Id., at 619.Those who founded the Republic recognized the importance of these constitutional principles. See, e. g., Wilson, Lectures on Law (1791), in 1 Works of James Wilson 363 (J. Andrews ed. 1896) (stating that judges should be "completely independent" in "their salaries, and in their offices"); McKean, Debate in Pennsylvania Ratifying Convention, Dec. 11, 1787, in 2 Debates on the Federal Constitution 539 (J. Elliot ed. 1836) (the security of undiminished compensation disposes judges to be "more easy and independent"); see also 1 Kent, supra, at *294 ("[P]ermanent support" and the "tenure of their office" "is well calculated ... to give [judges] the requisite independence"). They are no less important today than in earlier times. And the fact that we overrule Evans does not, in our view, diminish their importance.We also agree with Evans insofar as it holds that the Compensation Clause offers protections that extend beyond a legislative effort directly to diminish a judge's pay, say, by ordering a lower salary. 253 U. S., at 254. Otherwise a legislature could circumvent even the most basic Compensation Clause protection by enacting a discriminatory tax law, for example, that precisely but indirectly achieved the forbidden effect.Nonetheless, we disagree with Evans' application of Compensation Clause principles to the matter before it-a nondiscriminatory tax that treated judges the same way it treated other citizens. Evans' basic holding was that the570Compensation Clause forbids such a tax because the Clause forbids "all diminution," including "taxation," "whether for one purpose or another." Id., at 255. The Federal Circuit relied upon this holding. 64 F. 3d, at 650. But, in our view, it is no longer sound law.For one thing, the dissenters in Evans cast the majority's reasoning into doubt. Justice Holmes, joined by Justice Brandeis, wrote that the Compensation Clause offers "no reason for exonerating" a judge "from the ordinary duties of a citizen, which he shares with all others. To require a man to pay the taxes that all other men have to pay cannot possibly be made an instrument to attack his independence as a judge." 253 U. S., at 265. Holmes analogized the "diminution" that a tax might bring about to the burden that a state law might impose upon interstate commerce. If "there was no discrimination against such commerce the tax constituted one of the ordinary burdens of government from which parties were not exempted." Id., at 267.For another thing, this Court's subsequent law repudiated Evans' reasoning. In 1939, 14 years after Miles extended Evans' tax immunity to judges appointed after enactment of the tax, this Court retreated from that extension. See O'Malley, 307 U. S., at 283 (overruling Miles). And in so doing the Court, in an opinion announced by Justice Frankfurter, adopted the reasoning of the Evans dissent. The Court said that the question was whether judges are immune "from the incidences of taxation to which everyone else within the defined classes ... is subjected." 307 U. S., at 282. Holding that judges are not "immun[e] from sharing with their fellow citizens the material burden of the government," ibid., the Court pointed out that the legal profession had criticized Evans' contrary conclusion, and that courts outside the United States had resolved similar matters differently, 307 U. S., at 281. And the Court concluded that "a non-discriminatory tax laid generally on net income is not, when applied to the income of a federal judge, a diminution571of his salary within the prohibition of Article IlL" Id., at 282. The Court conceded that Miles had reached the opposite conclusion, but it said that Miles "cannot survive." 307 U. S., at 283. Still later, this Court noted that "[b]ecause Miles relied on Evans v. Gore, O'Malley must also be read to undermine the reasoning of Evans." United States v. Will, 449 U. S. 200, 227, n. 31 (1980).Finally, and most importantly, we believe that the reasoning of Justices Holmes and Brandeis, and of this Court in O'Malley, is correct. There is no good reason why a judge should not share the tax burdens borne by all citizens. We concede that this Court has held that the Legislature cannot directly reduce judicial salaries even as part of an equitable effort to reduce all Government salaries. See 449 U. S., at 226. But a tax law, unlike a law mandating a salary reduction, affects compensation indirectly, not directly. See ibid. (distinguishing between measures that directly and those that indirectly diminish judicial compensation). And those prophylactic considerations that may justify an absolute rule forbidding direct salary reductions are absent here, where indirect taxation is at issue. In practice, the likelihood that a nondiscriminatory tax represents a disguised legislative effort to influence the judicial will is virtually nonexistent. Hence, the potential threats to judicial independence that underlie the Constitution's compensation guarantee cannot justify a special judicial exemption from a commonly shared tax, not even as a preventive measure to counter those threats.For these reasons, we hold that the Compensation Clause does not forbid Congress to enact a law imposing a nondiscriminatory tax (including an increase in rates or a change in conditions) upon judges, whether those judges were appointed before or after the tax law in question was enacted or took effect. Insofar as Evans holds to the contrary, that case, in O'Malley's words, "cannot survive." 307 U. S., at 283.572The Government points out that the Medicare tax is just such a nondiscriminatory tax. Neither the courts below, nor the federal judges here, argue to the contrary. Hence, insofar as the Court of Appeals found that application of the Medicare tax law to federal judges is unconstitutional, we reverse its decision.IVThe Social Security tax is a different matter. Respondents argue that the 1983 law imposing that tax upon thensitting judges violates the Compensation Clause, for it discriminates against judges in a manner forbidden by the Clause, even as interpreted in O'Malley, not Evans. Cf. O'Malley, supra, at 282 (stating question as whether judges are immune "from the incidences of taxation to which everyone else within the defined classes ... is subjected" (emphasis added)). After examining the statute's details, we agree with the judges that it does discriminate in a manner that the Clause forbids. Four features of the law, taken together, lead us to this conclusion.First, federal employees had remained outside the Social Security system for nearly 50 years prior to the passage of the 1983 law. Congress enacted the law pursuant to the Social Security Commission's recommendation to bring those employees within the law. See supra, at 562. And the law itself deals primarily with that subject. Thus, history, context, statutory purpose, and statutory language, taken together, indicate that the category of "federal employees" is the appropriate class against which we must measure the asserted discrimination.Second, the law, as applied in practice, in effect imposed a new financial obligation upon sitting judges, but it did not impose a new financial burden upon any other group of (then) current federal employees. We have previously explained why that is so. See supra, at 562-564. The law required all newly hired federal employees to join Social Security and pay related taxes. It gave 96% of all current employees573(employed as of January 1, 1984, or earlier) total freedom to enter, or not to enter, the system as they chose. It gave the remaining 4% of all current employees the freedom to maintain their pre-1984 payroll deductions, provided that they were currently enrolled in a "covered" system. And it defined "covered" system in a way that included virtually all of that 4%, except for federal judges. See supra, at 563564. The practical upshot is that the law permitted nearly every current federal employee, but not federal judges, to avoid the newly imposed financial obligation.Third, the law, by including sitting judges in the system, adversely affected most of them. Inclusion meant a requirement to pay a tax of about $2,000 per year, deducted from a monthly salary check. App. 49. At the same time, 95% of the then-active judges had already qualified for Social Security (due to private sector employment) before becoming judges. See id., at 115. And participation in Social Security as judges would benefit only a minority. See id., at 116119 (reviewing examples of individual judges and demonstrating that participation in Social Security primarily would benefit the minority of judges who had not worked the 40 quarters necessary to be fully insured). The new law imposed a substantial cost on federal judges with little or no expectation of substantial benefit for most of them.Fourth, when measured against Compensation Clause objectives, the Government's justification for the statutory distinction (between judges, who do, and other federal employees, who do not, incur additional financial obligations) is unsound. The sole justification, according to the Government, is one of "equaliz[ing]" the retirement-related obligations that pre-1983 law imposed upon judges with the retirement-related obligations that pre-1983 law imposed upon other current high-level federal employees. Brief for United States 40. Thus the Government says that the new financial burden imposed upon judges was meant to make up for the fact that the judicial retirement system is basically574a noncontributory system, while the system to which other federal employees belonged was a contributory system. Id., at 39-40; Reply Brief for United States 16.This rationale, however, is the Government's and not necessarily that of Congress, which was silent on the matter. Cf. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 50 (1983) (expressing concern at crediting post hoc explanation of agency action).More importantly, the judicial retirement system is noncontributory because it reflects the fact that the Constitution itself guarantees federal judges life tenure-thereby constitutionally permitting federal judges to draw a salary for life simply by continuing to serve. Cf. Booth v. United States, 291 U. S. 339, 352 (1934) (holding that Compensation Clause protects salary of judge who has retired). That fact means that a contributory system, in all likelihood, would not work. And, of course, as of 1982, the noncontributory pension salary benefits were themselves part of the judge's compensation. The 1983 statute consequently singles out judges for adverse treatment solely because of a feature required by the Constitution to preserve judicial independence. At the same time, the "equaliz[ation]" in question takes place not by offering all current federal employees (including judges) the same opportunities but by employing a statutory disadvantage which offsets a constitutionally guaranteed advantage. Hence, to accept the "justification" offered here is to permit, through similar reasoning, taxes which have the effect of weakening or eliminating those constitutional guarantees necessary to secure judicial independence, at least insofar as similar guarantees are not enjoyed by others. This point would be obvious were Congress, say, to deny some of the benefits of a tax reduction to those with constitutionally guaranteed life tenure to make up for the fact that other employees lack such tenure. Although the relationships575here-among advantages and disadvantages-are less distant and more complex, the principle is similar.Nor does the statute "equaliz[e]" with any precision. On the one hand, the then-current retirement system open to all federal employees except judges required a typical employee to contribute 7% to 8% of his or her annual salary. See generally 5 U. S. C. § 8334(a)(1). In return it provided a Member of Congress, for instance, with a pension that vested after five years and increased in value (by 2.5% of the Member's average salary) with each year of service to a maximum of 80% of salary, and covered both employee and survivors. See 5 U. S. C. §§ 8339,8341. On the other hand, the judges' retirement system (based on life tenure) required no contribution for a judge who retired at age 65 (and who met certain service requirements) to receive full salary. But the right to receive that salary did not vest until retirement. The system provided nothing for a judge who left office before age 65. Nor did the law provide any coverage for a judge's survivors. Indeed, in 1984, a judge had to contribute 4.5% of annual salary to obtain a survivor's annuity, which increased in value by 1.25% of the judge's salary per year to a maximum of 40% of salary. 28 U. S. C. §§ 376(b), (l) (1982 ed.).These two systems were not equal either before or after Congress enacted the 1983 law. Before 1983, a typical married federal employee other than a judge had to contribute 7% to 8% of annual salary to receive benefits that were better in some respects (vesting period, spousal benefit) and worse in some respects (80% salary maximum) than his married judicial counterpart would receive in return for a 4.5% contribution. The 1983 law imposed an added 5.7% burden upon the judge, in return for which the typical judge received little, or no, financial benefit. Viewed purely in financial equalization terms, and as applied to typical judges, the new requirement seems to overequalize, putting the typical married judge at a financial disadvantage-though576perhaps it would produce greater equality when applied to other, less typical examples.Taken together, these four characteristics reveal a law that is special-in its manner of singling out judges for disadvantageous treatment, in its justification as necessary to offset advantages related to constitutionally protected features of the judicial office, and in the degree of permissible legislative discretion that would have to underlie any determination that the legislation has "equalized" rather than gone too far. For these reasons the law before us is very different from the "non-discriminatory" tax that O'Malley upheld. 307 U. S., at 282. Were the Compensation Clause to permit Congress to enact a discriminatory law with these features, it would authorize the Legislature to diminish, or to equalize away, those very characteristics of the Judicial Branch that Article III guarantees-characteristics which, as we have said, see supra, at 568-569, the public needs to secure that judicial independence upon which its rights depend. We consequently conclude that the 1983 Social Security tax law discriminates against the Judicial Branch, in violation of the Compensation Clause.The Government makes additional arguments in support of reversal. But we find them unconvincing. It suggests that Article III protects judges only against a reduction in stated salary, not against indirect measures that only reduce take-home pay. Brief for United States 28. In O'Malley, however, this Court, when upholding a "non-discriminatory" tax, strongly implied that the Compensation Clause would bar a discriminatory tax. 307 U. S., at 282. The commentators whose work O'Malley cited said so explicitly. See Fellman, The Diminution of Judicial Salaries, 24 Iowa L. Rev. 89, 99 (1938); see also Comment, 20 Ill. L. Rev. 376, 377 (1925); Corwin, Constitutional Law in 1919-1920, 14 Am. Pol. Sci. Rev. 635, 642 (1920). And in Will, the Court yet more strongly indicated that the Compensation Clause bars indirect efforts to reduce judges' salaries through taxes when577those taxes discriminate. 449 U. S., at 226. Indeed, the Government itself "assume[s] that discriminatory taxation of judges would contravene fundamental principles underlying Article III, if not the [Compensation] Clause itself." Brief for United States 37, n. 27.The Government also argues that there is no evidence here that Congress singled out judges for special treatment in order to intimidate, influence, or punish them. But this Court has never insisted upon such evidence. To require it is to invite legislative efforts that embody, but lack evidence of, some such intent, engendering suspicion among the branches and consequently undermining that mutual respect that the Constitution demands. Cf. Wilson, Lectures on Law, in 1 Works of James Wilson, at 364 (stating that judges "should be removed from the most distant apprehension of being affected, in their judicial character and capacity, by anything, except their own behavior and its consequences"). Nothing in the record discloses anything other than benign congressional motives. If the Compensation Clause is to offer meaningful protection, however, we cannot limit that protection to instances in which the Legislature manifests, say, direct hostility to the Judiciary.Finally, the Government correctly points out that the law disfavored not only judges but also the President of the United States and certain Legislative Branch employees. As far as we can determine, however, all Legislative Branch employees were free to join a covered system, and the record provides us with no example of any current Legislative Branch employee who had failed to do so. See Tr. of Oral Arg. 16-17, 37-38. The President's pension is noncontributory. See note following 3 U. S. C. § 102. And the President himself, like the judges, is protected against diminution in his "[c]ompensation." See U. S. Const., Art. II, § 1. These facts may help establish congressional good faith. But, as we have said, we do not doubt that good faith. And we do not see why, otherwise, the separate and special exam-578pIe of that single individual, the President, should make a critical difference here.We conclude that, insofar as the 1983 statute required then-sitting judges to join the Social Security system and pay Social Security taxes, that statute violates the Compensation Clause.vThe second question presented is whether the "constitutional violation ended when Congress increased the statutory salaries of federal judges by an amount greater than the amount [of the Social Security] taxes deducted from respondents' judicial salaries." Pet. for Cert. 1.The Government argues for an affirmative answer. It points to a statutory salary increase that all judges received in 1984. It says that this increase, subsequent to the imposition of Social Security taxes on judges' salaries, cured any earlier unconstitutional diminution of salaries in a lesser amount. Otherwise, if "Congress improperly reduced judges' salaries from $140,000" per year "to $130,000" per year, the judges would be able to collect the amount of the improper reduction, here $10,000, forever-even if Congress cured the improper reduction by raising salaries $20,000, to $150,000, a year later. Reply Brief for United States 18. To avoid this consequence, the Government argues, we should simply look to the fact of a later salary increase "whether or not one of Congress's purposes in increasing the salaries" was "to terminate the constitutional violation." Ibid.But how could we always decide whether a later salary increase terminates a constitutional violation without examining the purpose of that increase? Imagine a violation that affected only a few. To accept the Government's position would leave those few at a permanent salary disadvantage. If, for example, Congress reduced the salaries of one group579of judges by 20%, a later increase of 30% applicable to all judges would leave the first group permanently 20% behind. And a pay cut that left those judges at a permanent disadvantage would perpetuate the very harm that the Compensation Clause seeks to prevent.The Court of Appeals consequently examined the context in which the later pay increases took place in order to determine their relation to the earlier Compensation Clause violation. It found "nothing to suggest" that the later salary increase at issue here sought "to make whole the losses sustained by the pre-1983 judges." 185 F. 3d, at 1362-1363. The Government presents no evidence to the contrary.The relevant economic circumstances surrounding the 1984, and subsequent, salary increases include inflation sufficiently serious to erode the real value of judicial salaries and salary increases insufficient to maintain real salaries or real compensation parity with many other private-sector employees. See Report of 1989 Commission on Executive, Legislative, and Judicial Salaries, Hearings before the Senate Committee on Governmental Affairs, 101st Cong., 1st Sess., 12-13 (1989) (testimony of Lloyd Cutler regarding effect of inflation on judges' salaries since 1969). For instance, while consumer prices rose 363% between 1969 and 1999, salaries in the private sector rose 421 %, and salaries for district judges rose 253%. See American Bar Association, Federal Judicial Pay Erosion 11 (Feb. 2001). These figures strongly suggest that the judicial salary increases simply reflected a congressional effort to restore both to judges and to Members of Congress themselves some, but not all, of the real compensation that inflation had eroded. Those salary increases amounted to a congressional effort to adjust judicial salaries to reflect "fluctuations in the value of money," The Federalist No. 79, at 473 (A. Hamilton)-the kind of adjustment that the Founders believed "may be requisite," McKean, Debate in Pennsylvania Ratifying Convention, Dec. 11, 1787, in 2 Debates on the Federal Constitution, at 539; see580also Rosenn, The Constitutional Guaranty Against Diminution of Judicial Compensation, 24 UCLA L. Rev. 308, 314315 (1976).We have found nothing to the contrary. And we therefore agree with the Court of Appeals' similar conclusion. 185 F. 3d, at 1363 ("[E]verything in the record" suggests that the increase was meant to halt "the slide in purchasing power resulting from continued and unadjusted-for inflation").The Government says that a circumstance-specific approach may prove difficult to administer. Brief for United States 43. And we concede that examining the circumstances in order to determine whether there is or is not a relation between an earlier violation and a later increase is more complex than the Government's proposed automatic approach. But we see no reason why such relief as damages or an exemption from Social Security would prove unworkable.Finally, the Government looks to our decision in Will for support. In that case, federal judges challenged the constitutionality of certain legislative "freezes" that Congress had imposed upon earlier enacted Government-wide cost-ofliving salary adjustments. The Court found a Compensation Clause violation in respect to the freeze for what was designated Year One (where Congress had rescinded an earlier voted 4.8% salary increase). Will, 449 U. S., at 225226. The Government points out that the Will Court "noted that Congress, later in that fiscal year, enacted a statutory increase in judges' salaries that exceeded the salaries that judges would have received" without the rescission. Brief for United States 41. And the Government adds that "it was unquestioned in Will" that the judges could not receive damages for the time subsequent to this later enactment. Id., at 41-42.The Will Year One example, however, shows only that, in the circumstances, and unlike the case before us, the later salary increase was related to the earlier salary diminishment. Regardless, the very fact that the matter was "un-581questioned" in Will shows that it was not argued. See 449 U. S., at 206, n. 3 (noting that the judges' complaint sought relief for Year One's diminution only up to the moment of the subsequent salary increase). Hence the Court did not decide the matter now before us.We conclude that later statutory salary increases did not cure the preceding unconstitutional harm.VIInsofar as the Court of Appeals found the application of Medicare taxes to the salaries of judges taking office before 1983 unconstitutional, its judgment is reversed. Insofar as that court found the application of Social Security taxes to the salaries of judges taking office before 1984 unconstitutional, its judgment is affirmed. We also affirm the Court of Appeals' determination that the 1984 salary increase received by federal judges did not cure the Compensation Clause violation. The case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2000SyllabusUNITED STATES v. HATTER, JUDGE, UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUITNo. 99-1978. Argued February 20, 200l-Decided May 21, 2001In 1982, Congress extended Medicare to federal employees. That new law meant, inter alia, that then-sitting federal judges, like all other federal employees and most other citizens, began to have Medicare taxes withheld from their salaries. In 1983, Congress required all newly hired federal employees to participate in Social Security and permitted, without requiring, about 96% of the then-currently employed federal employees to participate in that program. The remaining 4%-a class consisting of the President, other high-level Government employees, and all federal judges-were required to participate, except that those who contributed to a "covered" retirement program could modify their participation in a manner that left their total payroll deduction for retirement and Social Security unchanged, in effect allowing them to avoid any additional financial obligation as a result of joining Social Security. A "covered" program was defined to include any retirement system to which an employee had to contribute, which did not encompass the noncontributory pension system for federal judges, whose financial obligations (and payroll deductions) therefore had to increase. A number of federal judges appointed before 1983 filed this suit, arguing that the 1983 law violated the Compensation Clause, which guarantees federal judges a "Compensation, which shall not be diminished during their Continuance in Office," U. S. Const., Art. III, § 1. Initially, the Court of Federal Claims ruled against the judges, but the Federal Circuit reversed. On certiorari, because some Justices were disqualified and this Court failed to find a quorum, the Federal Circuit's judgment was affirmed "with the same effect as upon affirmance by an equally divided court." 519 U. S. 801. On remand, the Court of Federal Claims found that the judges' Medicare claims were time barred and that a 1984 judicial salary increase promptly cured any violation, making damages minimal. The Federal Circuit reversed, holding that the Compensation Clause prevented the Government from collecting Medicare and Social Security taxes from the judges and that the violation was not cured by the 1984 pay increase.558SyllabusHeld:1. The Compensation Clause prevents the Government from collecting Social Security taxes, but not Medicare taxes, from federal judges who held office before Congress extended those taxes to federal employees. Pp. 565-578.(a) The Court rejects the judges' claim that the "law of the case" doctrine now prevents consideration of the Compensation Clause because an affirmance by an equally divided Court is conclusive and binding upon the parties. United States v. Pink, 315 U. S. 203, 216, on which the judges rely, concerned an earlier case in which the Court heard oral argument and apparently considered the merits before affirming by an equally divided Court. The law of the case doctrine presumes a hearing on the merits. See, e. g., Quern v. Jordan, 440 U. S. 332,347, n. 18. When this case previously was here, due to absence of a quorum, the Court could not consider either the merits or whether to consider those merits through a grant of certiorari. This fact, along with the obvious difficulty of finding other equivalent substitute forums, convinces the Court that Pink does not control here. Pp. 565-566.(b) Although the Compensation Clause prohibits taxation that singles out judges for specially unfavorable treatment, it does not forbid Congress to enact a law imposing a nondiscriminatory tax (including an increase in rates or a change in conditions) upon judges and other citizens. See O'Malley v. Woodrough, 307 U. S. 277, 282. Insofar as Evans v. Gore, 253 U. S. 245, 255, holds to the contrary, that case is overruled. See O'Malley, supra, at 283. There is no good reason why a judge should not share the tax burdens borne by all citizens. See Evans, supra, at 265, 267 (Holmes, J., dissenting); O'Malley, supra, at 281-283. Although Congress cannot directly reduce judicial salaries even as part of an equitable effort to reduce all Government salaries, a tax law, unlike a law mandating a salary reduction, affects compensation indirectly, not directly. See United States v. Will, 449 U. S. 200, 226. And those prophylactic considerations that may justify an absolute rule forbidding direct salary reductions are absent here, where indirect taxation is at issue. In practice, the likelihood that a nondiscriminatory tax represents a disguised legislative effort to influence the judicial will is virtually nonexistent. Hence, the potential threats to judicial independence that underlie the Compensation Clause, see Evans, supra, at 251-252, cannot justify a special judicial exemption from a commonly shared tax, not even as a preventive measure to counter those threats. Because the Medicare tax is nondiscriminatory, the Federal Circuit erred in finding its application to federal judges unconstitutional. Pp. 566-572.559Full Text of Opinion

1968_156

MR. JUSTICE HARLAN delivered the opinion of the Court.The sole question presented by this case is whether the Federal District Court in which it was brought had Page 394 U. S. 824 jurisdiction over the cause, or whether that court was deprived of jurisdiction by 28 U.S.C. § 1359. That section provides:"A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court."The facts were these. Respondent Caribbean Mills, Inc. (Caribbean) is a Haitian corporation. In May, 1959 ,it entered into a contract with an individual named Kelly and the Panama and Venezuela Finance Company (Panama), a Panamanian corporation. The agreement provided that Caribbean would purchase from Panama 125 shares of corporate stock, in return for payment of $85,000 down and an additional $165,000 in 12 annual installments.No installment payments ever were made, despite requests for payment by Panama. In 1964, Panama assigned its entire interest in the 1959 contract to petitioner Kramer, an attorney in Wichita Falls, Texas. The stated consideration was $1. By a separate agreement dated the same day, Kramer promised to pay back to Panama 95% of any net recovery on the assigned cause of action, [Footnote 1] "solely as a Bonus."Kramer soon thereafter brought suit against Caribbean for $165,000 in the United States District Court for the Northern District of Texas, alleging diversity of citizenship between himself and Caribbean. [Footnote 2] The District Page 394 U. S. 825 Court denied Caribbean's motion to dismiss for want of jurisdiction. The case proceeded to trial, and a jury returned a $165,000 verdict in favor of Kramer.On appeal, the Court of Appeals for the Fifth Circuit reversed, holding that the assignment was "improperly or collusively made" within the meaning of 28 U.S.C. § 1359, and that, in consequence, the District Court lacked jurisdiction. We granted certiorari, 393 U.S. 819 (1968). For reasons which follow, we affirm the judgment of the Court of Appeals.IThe issue before us is whether Kramer was "improperly or collusively made" a party "to invoke the jurisdiction" of the District Court, within the meaning of 28 U.S.C. § 1359. We look first to the legislative background.Section 1359 has existed in its present form only since the 1948 revision of the Judicial Code. Prior to that time, the use of devices to create diversity was regulated by two federal statutes. The first, known as the "assignee clause," provided that, with certain exceptions not here relevant:"No district court shall have cognizance of any suit . . . to recover upon any promissory note or other chose in action in favor of any assignee, . . . unless such suit might have been prosecuted in such court . . . if no assignment had been made. [Footnote 3]"The second pre-1948 statute, 28 U.S.C. § 80 (1940 ed.), [Footnote 4] stated that a district court should dismiss an action whenever:"it shall appear to the satisfaction of the . . . court . . . that such suit does not really and substantially Page 394 U. S. 826 involve a dispute or controversy properly within the jurisdiction of [the] court, or that the parties to said suit have been improperly or collusively made or joined . . . for the purpose of creating [federal jurisdiction]."As part of the 1948 revision, § 80 was amended to produce the present § 1359. The assignee clause was simultaneously repealed. The Reviser's Note describes the amended assignee clause as a "jumble of legislative jargon,'" [Footnote 5] and states that"[t]he revised section changes this clause by confining its application to cases wherein the assignment is improperly or collusively made. . . . Furthermore, . . . the original purpose of [the assignee] clause is better served by substantially following section 80."That purpose was said to be "to prevent the manufacture of Federal jurisdiction by the device of assignment." Ibid.IIOnly a small number of cases decided under § 1359 have involved diversity jurisdiction based on assignments, [Footnote 6] and this Court has not considered the matter since the 1948 revision. Because the approach of the former assignee clause was to forbid the grounding of jurisdiction upon any assignment, regardless of its circumstances or purpose, [Footnote 7] decisions under that clause are of little assistance. However, decisions of this Court under the other predecessor statute, 28 U.S.C. § 80 (1940 ed.), seem squarely in point. These decisions, together with the Page 394 U. S. 827 evident purpose of § 1359, lead us to conclude that the Court of Appeals was correct in finding that the assignment in question was "improperly or collusively made."The most compelling precedent is Farmington v. Pillsbury, 114 U. S. 138 (1885). There, Maine holders of bonds issued by a Maine village desired to test the bonds' validity in the federal courts. In an effort to accomplish this, they cut the coupons from their bonds and transferred them to a citizen of Massachusetts, who gave in return a non-negotiable two-year note for $500 and a promise to pay back 50% of the net amount recovered above $500. The jurisdictional question was certified to this Court, which held that there was no federal jurisdiction because the plaintiff had been "improperly or collusively" made a party within the meaning of the predecessor statute to 28 U.S.C. § 80 (1940 ed.). The Court pointed out that the plaintiff could easily have been released from his non-negotiable note, and found that, apart from the hoped-for creation of federal jurisdiction, the only real consequence of the transfer was to enable the Massachusetts plaintiff to "retain one-half of what he collects for the use of his name and his trouble in collecting." 114 U.S. at 114 U. S. 146. The Court concluded that "the transfer of the coupons was a mere contrivance, a pretence, the result of a collusive arrangement to create'" federal jurisdiction. Ibid.We find the case before us indistinguishable from Farmington and other decisions of like tenor. [Footnote 8] When the assignment to Kramer is considered together with his total lack of previous connection with the matter and his simultaneous reassignment of a 95% interest back to Panama, there can be little doubt that the assignment was for purposes of collection, with Kramer to retain 5% of the net proceeds "for the use of his name Page 394 U. S. 828 and his trouble in collecting." [Footnote 9] If the suit had been unsuccessful, Kramer would have been out only $1, plus costs. Moreover, Kramer candidly admits that the "assignment was in substantial part motivated by a desire by [Panama's] counsel to make diversity jurisdiction available. . . ." [Footnote 10]The conclusion that this assignment was "improperly or collusively made" within the meaning of § 1359 is supported not only by precedent, but also by consideration of the statute's purpose. If federal jurisdiction could be created by assignment of this kind, which are easy to arrange and involve few disadvantages for the assignor, then a vast quantity of ordinary contract and tort litigation Page 394 U. S. 829 could be channeled into the federal courts at the will of one of the parties. Such "manufacture of Federal jurisdiction" was the very thing which Congress intended to prevent when it enacted § 1359 and its predecessors.IIIKramer nevertheless argues that the assignment to him was not "improperly or collusively made" within the meaning of § 1359, for two main reasons. First, he suggests that the undisputed legality of the assignment under Texas law necessarily rendered it valid for purposes of federal jurisdiction. We cannot accept this contention. The existence of federal jurisdiction is a matter of federal, not state, law. See, e.g., Missouri P. R. Co. v. Fitzgerald, 160 U. S. 556, 160 U. S. 582 (1896). Under the predecessor section, 28 U.S.C. § 80 (1940 ed.), this Court several times held that an assignment could be "improperly or collusively made" even though binding under state law, [Footnote 11] and nothing in the language or legislative history of § 1359 suggests that a different result should be reached under that statute. Moreover, to accept this argument would render § 1359 largely incapable of accomplishing its purpose; this very case demonstrates the ease with which a party may "manufacture" federal jurisdiction by an assignment which meets the requirements of state law.Second, Kramer urges that this case is significantly distinguishable from earlier decisions because it involves diversity jurisdiction under 28 U.S.C. § 1332(a)(2), arising from the alienage of one of the parties, rather than the more common diversity jurisdiction based upon the parties' residence in different States. We can perceive no substance in this argument: by its terms, § 1359 Page 394 U. S. 830 applies equally to both types of diversity jurisdiction, and there is no indication that Congress intended them to be treated differently.IVIn short, we find that this assignment falls not only within the scope of § 1359 but within its very core. It follows that the District Court lacked jurisdiction to hear this action, and that petitioner must seek his remedy in the state courts. [Footnote 12] The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtKramer v. Caribbean Mills, Inc., 394 U.S. 823 (1969)Kramer v. Caribbean Mills, Inc.No. 156Argued January 23, 1969Decided May 5, 1969394 U.S. 823SyllabusRespondent, a Haitian corporation, contracted with a Panamanian corporation to purchase some of the latter's stock for an $85,000 downpayment and $165,000 in 12 annual installments. No installment payments were made, despite demands by the Panamanian company, which thereafter assigned its interest in the contract to petitioner, a Texas attorney, for $1. By a separate agreement, petitioner promised to pay the Panamanian company 95% of any net recovery "solely as a Bonus." Petitioner filed a diversity action against respondent in the District Court and obtained a jury verdict for $165,000. That court denied respondent's motion to dismiss for want of jurisdiction. The Court of Appeals reversed, finding that the assignment was "improperly or collusively made" within the meaning of 28 U.S.C. § 1359.Held: The assignment was "improperly or collusively made" within the meaning of § 1359, as the "manufacture of Federal jurisdiction" was the very thing Congress intended to prevent by the enactment of § 1359 and its predecessors. Pp. 394 U. S. 825-830.(a) The legality of the assignment under Texas law does not render it valid for purposes of federal jurisdiction, as the existence of federal jurisdiction is a matter of federal, not state, law. P. 394 U. S. 829.(b) Section 1359 applies to diversity jurisdiction arising from the alienage of a party as well as that based on residence in different States. Pp. 829-830.392 F.2d 387, affirmed.

1974_73-1395

MR. JUSTICE MARSHALL delivered the opinion of the Court.Respondent George J. Wilson, Jr., was tried in the Eastern District of Pennsylvania for converting union funds to his own use in violation of § 501(c) of the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 536, 29 U.S.C. § 501(c). The jury entered a guilty verdict, but, on a post-verdict motion, the District Court dismissed the indictment. The court ruled that the delay between the offense and the indictment had prejudiced the defendant, and that dismissal was called for under this Court's decision in United States v. Marion, 404 U. S. 307 (1971). The Government sought to appeal the dismissal to the Court of Appeals for the Third Circuit, but that court held that the Double Jeopardy Clause barred review of the District Court's ruling. 492 F.2d 1345 (1973). We granted certiorari to consider the applicability of the Double Jeopardy Clause to appeals from post-verdict rulings by the trial court. 417 U.S. 908 (1974). We reverse.IIn April, 1968, the FBI began an investigation of respondent Wilson, the business manager of Local 367 of the International Brotherhood of Electrical Workers. The investigation focused on Wilson's suspected conversion in 1966 of $1,233.15 of union funds to pay part of the expenses of his daughter's wedding reception. The payment was apparently made by a check drawn on union funds and endorsed by the treasurer and the president Page 420 U. S. 334 of the local union. Respondent contended at trial that he had not authorized the two union officials to make the payment on his behalf, and that he did not know the bill for the reception had been paid out of union funds. In June, 1970, the FBI completed its investigation and reported to the Organized Crime Strike Force and the local United States Attorney's Office. [Footnote 1] There the matter rested for some 16 months until, three days prior to the running of the statute of limitations, respondent was indicated for illegal conversion of union funds.Wilson made a pretrial motion to dismiss the indictment on the ground that the Government's delay in filing the action had denied him the opportunity for a fair trial. His chance to mount an effective defense was impaired, Wilson argued, because the two union officers who had signed the check for the reception were unavailable to testify. One had died in 1968, and the other was suffering from a terminal illness. After a hearing, the court denied the pretrial motion, and the case proceeded to trial. The jury returned a verdict of guilty, after which the defendant filed various motions, including a motion for arrest of judgment, a motion for a judgment of acquittal, and a motion for a new trial.The District Court reversed its earlier ruling and dismissed the indictment on the ground that the pre-indictment delay was unreasonable and had substantially prejudiced the defendant's right to a fair trial. The union treasurer had died prior to 1970, the court noted, so the loss of his testimony could not be attributed to Page 420 U. S. 335 the pre-indictment delay. The union president, however, had become unavailable during the period of delay. The court ruled that, since he was the only remaining witness who could explain the circumstances of the payment of the check, the pre-indictment delay violated the respondent's Fifth Amendment right to a fair trial. This disposition of the Marion claim made it unnecessary to rule on the defendant's other post-verdict motions.The Government sought to appeal the District Court's ruling pursuant to the Criminal Appeals Act, 18 U.S.C. § 3731, but the Court of Appeals dismissed the appeal in a judgment order, citing our decision in United States v. Sisson, 399 U. S. 267 (1970). On the Government's petition for rehearing, the court wrote an opinion in which it reasoned that, since the District Court had relied on facts brought out at trial in finding prejudice from the pre-indictment delay, its ruling was, in effect, an acquittal. Under the Double Jeopardy Clause, the Court of Appeals held, the Government could not constitutionally appeal the acquittal, even though it was rendered by the judge after the jury had returned a verdict of guilty.IIThe Government argues that the Court of Appeals read the Double Jeopardy Clause too broadly, and that it mischaracterized the District Court's ruling in terming it an acquittal. In the Government's view, the constitutional restriction on governmental appeals is intended solely to protect against exposing the defendant to multiple trials, not to shield every determination favorable to the defendant from appellate review. Since a new trial would not be necessary where the trier of fact has returned a verdict of guilty, the Government argues that it should be permitted to appeal from any adverse post-verdict ruling. In the alternative, the Government urges Page 420 U. S. 336 that, even if the Double Jeopardy Clause is read to bar appeal of any judgment of acquittal, the District Court's order in this case was not an acquittal, and it should therefore be appealable. The respondent argues that, under our prior cases, the Double Jeopardy Clause prohibits appeal of any order discharging the defendant when, as here, that order is based on facts outside the indictment. Because we agree with the Government that the constitutional protection against Government appeals attaches only where there is a danger of subjecting the defendant to a second trial for the same offense, we have no occasion to determine whether the ruling in Wilson's favor was actually an "acquittal" even though the District Court characterized it otherwise.AThis Court early held that the Government could not take an appeal in a criminal case without express statutory authority. United states v. Sanges, 144 U. S. 310 (1892). Not reaching the underlying constitutional issue, the Court held only that the general appeals provisions of the Judiciary Act of 1891, 26 Stat. 827, 828, were not sufficiently explicit to overcome the common law rule that the State could not sue out a writ of error in a criminal case unless the legislature had expressly granted it that right. 144 U.S. at 144 U. S. 318, 144 U. S. 322-323.Fifteen years later, Congress passed the first Criminal Appeals Act, which conferred jurisdiction on this Court to consider criminal appeals by the Government in limited circumstances. 34 Stat. 1246. The Act permitted the Government to take an appeal from a decision dismissing an indictment or arresting judgment where the decision was based on "the invalidity, or construction of the statute upon which the indictment is founded," and from a decision sustaining a special plea in bar when the Page 420 U. S. 337 defendant had not been put in jeopardy. [Footnote 2] The Act was construed in accordance with the common law meaning of the terms employed, and the rules governing the conditions of appeal became highly technical. [Footnote 3] This Court had a number of occasions to struggle with the vagaries of the Act; [Footnote 4] in one of the last of these unhappy efforts, we concluded that the Act was "a failure . . . a most unruly child that has not improved with age." United States v. Sisson, 399 U.S. at 399 U. S. 307.Congress finally disposed of the statute in 1970, and replaced it with a new Criminal Appeals Act intended to broaden the Government's appeal rights. [Footnote 5] While the language of the new Act is not dispositive, the legislative history makes it clear that Congress intended to remove all statutory barriers to Government appeals, and to allow appeals whenever the Constitution would permit. Page 420 U. S. 338A bill proposed by the Department of Justice would have permitted an appeal by the United States"from a decision, judgment or order of a district court dismissing an indictment or information or terminating a prosecution in favor of a defendant as to any one or more counts, except that no appeal [would] lie from a judgment of acquittal."S. 3132; H.R. 14588. The Senate Report on this bill indicated that the Judiciary Committee intended to extend the Government's appeal rights to the constitutional limits. S.Rep. No. 91-1296, p. 18 (1970). Both the report and the wording of the bill, however, suggested that the Committee thought the Double Jeopardy Clause would bar appeal of any acquittal, whether a verdict of acquittal by a jury or a judgment of acquittal entered by a judge. Id. at 2, 8-12. At the same time, the Committee appears to have thought that the Constitution would permit review of any other ruling by a judge that terminated a prosecution, even if the ruling came in the midst of a trial. Id. at 11.The Conference Committee made two important changes in the bill, although it offered no explanation for them. H.R.Conf.Rep. No. 91-1768, p. 21 (1970). The Committee omitted the language purporting to permit an appeal from an order "terminating a prosecution in favor of a defendant," and it removed the phrase that would have barred appeal of an acquittal. In place of that provision, the Committee substituted the language that was ultimately enacted, under which an appeal was authorized"from a decision, judgment, or order of a district court dismissing an indictment or information . . . except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."These changes are consistent with the Senate Committee's desire to authorize appeals whenever constitutionally Page 420 U. S. 339 permissible, but they suggest that Congress decided to rely upon the courts to define the constitutional boundaries, rather than to create a statutory scheme that might be, in some respects, narrower or broader than the Fifth Amendment would allow. In light of this background, it seems inescapable that Congress was determined to avoid creating nonconstitutional bars to the Government's right to appeal. The District Court's order in this case is therefore appealable unless the appeal is barred by the Constitution.BThe statutory restrictions on Government appeals long made it unnecessary for this Court to consider the constitutional limitations on the appeal rights of the prosecution except in unusual circumstances. Even in the few relevant cases, the discussion of the question has been brief. Now that Congress has removed the statutory limitations and the Double Jeopardy Clause has been held to apply to the States, see Benton v. Maryland, 395 U. S. 784 (1969), it is necessary to take a closer look at the policies underlying the Clause in order to determine more precisely the boundaries of the Government's appeal rights in criminal cases.As has been documented elsewhere, the idea of double jeopardy is very old. See Bartkus v. Illinois, 359 U. S. 121, 359 U. S. 151-155 (1959) (Black, J., dissenting); United States v. Jenkins, 490 F.2d 868, 870-873 (CA2 1973). The early development of the principle can be traced through a variety of sources ranging from legal maxims to casual references in contemporary commentary. Although the form and breadth of the prohibition varied widely, the underlying premise was generally that a defendant should not be twice tried or punished for the same offense. Page 420 U. S. 340 J. Sigler, Double Jeopardy 2-16 (1969). [Footnote 6] Writing in the 17th century, Lord Coke described the protection afforded by the principle of double jeopardy as a function of three related common law pleas: autrefois acquit, autrefois convict, and pardon. With some exceptions, these pleas could be raised to bar the second trial of a defendant if he could prove that he had already been convicted of the same crime. 3 E. Coke, Institutes 212-213 (6th ed. 1680). Blackstone later used the ancient term "jeopardy" in characterizing the principle underlying the two pleas of autrefois acquit and autrefois convict. That principle, he wrote, was a "universal maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offence." 4 W. Blackstone, Commentaries *335-336.The history of the adoption of the Double Jeopardy Clause sheds some light on what the drafters thought Blackstone's "universal maxim" should mean as applied in this country. At the time of the First Congress, only one State had a constitutional provision embodying anything resembling a prohibition against double jeopardy. [Footnote 7] In the course of their ratification proceedings, however, two other States suggested that a double jeopardy clause be included among the first amendments to the Federal Constitution. [Footnote 8] Apparently attempting to accommodate Page 420 U. S. 341 these suggestions, James Madison added a ban against double jeopardy to the proposed version of the Bill of Rights that he presented to the House of Representatives in June, 1789. Madison's provision read: "No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence." 1 Annals of Cong. 434 (1789). Several members of the House challenged Madison's wording on the ground that it might be misconstrued to prevent a defendant from seeking a new trial on appeal of his conviction. Id. at 753. One of Madison's supporters assured the doubters that the proposed clause merely stated the current law, and that this protection for defendants was implicit in the language as it stood. [Footnote 9] Madison's wording survived in the House, but in the Senate, his proposal was rejected in favor of the more traditional language employing the familiar concept of "jeopardy." S.Jour., 1st Cong., 1st Sess., 71, 77 (1820 ed.). The Senate's choice of language that tracked Blackstone's statement of the Page 420 U. S. 342 principles of autrefois acquit and autrefois convict was adopted by the Conference Committee and approved by both Houses with no apparent dissension. Id. at 87-88; H.R.Jour., 1st Cong., 1st Sess., 121 (1826 ed.).In the course of the debates over the Bill of Rights, there was no suggestion that the Double Jeopardy Clause imposed any general ban on appeals by the prosecution. The only restriction on appeal rights mentioned in any of the proposed versions of the Clause was in Maryland's suggestion that "there shall be . . . no appeal from matter of fact," which was apparently intended to apply equally to the prosecution and the defense. Nor does the common law background of the Clause suggest an implied prohibition against state appeals. Although, in the late 18th century, the King was permitted to sue out a writ of error in a criminal case under certain circumstances, [Footnote 10] the principles of autrefois acquit and autrefois convict imposed no apparent restrictions on this right. It was only when the defendant was indicted for a second time after either a conviction or an acquittal that he could seek the protection of the common law pleas. The development of the Double Jeopardy Clause from its common law origins thus suggests that it was directed at the threat of multiple prosecutions, not at Government appeals, at least where those appeals would not require a new trial.CThis Court's cases construing the Double Jeopardy Clause reinforce this view of the constitutional guarantee. In North Carolina v. Pearce, 395 U. S. 711 Page 420 U. S. 343 (1969), we observed that the Double Jeopardy Clause provides three related protections:"It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense."Id. at 395 U. S. 717.The interests underlying these three protections are quite similar. When a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense. Ex parte Lange, 18 Wall 163 (1874); In re Nielsen, 131 U. S. 176 (1889). When a defendant has been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make repeated attempts to convict him,"thereby subjecting him to embarrassment, expense and ordeal, and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty."Green v. United States, 355 U. S. 184, 355 U. S. 187-188 (1957).The policy of avoiding multiple trials has been regarded as so important that exceptions to the principle have been only grudgingly allowed. Initially, a new trial was thought to be unavailable after appeal, whether requested by the prosecution or the defendant. See United States v. Gibert, 25 F. Cas. 1287 (No. 15,204) (CCD Mass. 1834) (Story, J.). It was not until 1896 that it was made clear that a defendant could seek a new trial after conviction, even though the Government enjoyed no similar right. United States v. Ball, 163 U. S. 662. [Footnote 11] Page 420 U. S. 344 Following the same policy, the Court has granted the Government the right to retry a defendant after a mistrial only where "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated." United States v. Perez, 9 Wheat. 579, 22 U. S. 580 (1824). [Footnote 12]By contrast, where there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended. [Footnote 13] In various situations where appellate review would not subject the defendant to a second trial, this Court has held that an order favoring the defendant could constitutionally be appealed by the Government. Since the 1907 Criminal Appeals Act, for example, the Government has been permitted, without serious constitutional challenge, to appeal from orders arresting judgment after a verdict has been entered against the defendant. See, e.g., United States v. Bramblett, 348 U. S. 503 (1955); United States v. Green, 350 U. S. 415 (1956); Pratt v. United States, 70 App.D.C. 7, 11, 102 F.2d 275, 279 (1939). Since reversal Page 420 U. S. 345 on appeal would merely reinstate the jury's verdict, review of such an order does not offend the policy against multiple prosecution.Similarly, it is well settled that an appellate court's order reversing a conviction is subject to further review even when the appellate court has ordered the indictment dismissed and the defendant discharged. Forman v. United States, 361 U. S. 416, 361 U. S. 426 (1960). If reversal by a court of appeals operated to deprive the Government of its right to seek further review, disposition in the court of appeals would be "tantamount to a verdict of acquittal at the hands of the jury, not subject to review by motion for rehearing, appeal, or certiorari in this Court." Ibid. See also United States v. Shotwell Mfg. Co., 355 U. S. 233, 355 U. S. 243 (1957).It is difficult to see why the rule should be any different simply because the defendant has gotten a favorable post-verdict ruling of law from the District Judge, rather than from the Court of Appeals, or because the District Judge has relied to some degree on evidence presented at trial in making his ruling. Although review of any ruling of law discharging a defendant obviously enhances the likelihood of conviction and subjects him to continuing expense and anxiety, a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact. [Footnote 14]As we have noted, this Court has had relatively few occasions to comment directly on the constitutional restrictions on Government appeals. The few relevant Page 420 U. S. 346 cases are nonetheless consistent with double jeopardy cases from related areas, in focusing on the prohibition against multiple trials as the controlling constitutional principle.The Court first addressed the question in United States v. Ball, supra. After trial on an indictment for murder, the jury found one of the defendants not guilty. The indictment was later determined to be defective, but this Court held that an acquittal, even on a defective indictment, was sufficient to bar a subsequent prosecution for the same offense. 163 U.S. at 163 U. S. 669. "The verdict of acquittal was final," the Court wrote, "and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution." Id. at 163 U. S. 671.Eight years later, the Court was again faced with a double jeopardy challenge to a Government appeal. In Kepner v. United States, 195 U. S. 100 (1904), [Footnote 15] the prosecution sought what was, in essence, a trial de novo after the defendant had been acquitted by the court in a bench trial. The Court, relying on the Ball case, held that "to try a man after a verdict of acquittal is to put him twice in jeopardy, although the verdict was not followed by judgment." Id. at 195 U. S. 133. Permitting an appeal in Kepner would, in effect, have exposed the defendant to a second trial in violation of the constitutional protection against multiple trials for the same offense.Respondent contends that Ball and Kepner stand for Page 420 U. S. 347 the proposition that the key to invoking double jeopardy protection is not whether the defendant might be subjected to multiple trials, but whether he can point to a prior verdict or judgment of acquittal. In Ball, however, the Court explained that review of the verdict of acquittal was barred primarily because it would expose the defendant to the risk of a second trial after the finder of fact had ruled in his favor in the first. And, although the Kepner case technically involved only a single proceeding, the Court regarded the practice as equivalent to two separate trials, and the evil that the Court saw in the procedure was plainly that of multiple prosecution: [Footnote 16]"The court of first instance, having jurisdiction to try the question of the guilt or innocence of the accused, found Kepner not guilty; to try him again upon the merits, even in an appellate court, is to put him a second time in jeopardy for the same offense."195 U.S. at 195 U. S. 133.The respondent seeks some comfort from this Court's more recent decision in Fong Foo v. United States, 369 U. S. 141 (1962), but that case, too, reflects the policy against multiple trials in limiting the Government's appeal rights. In Fong Foo, the trial court had interrupted the Government's case and directed the jury to return verdicts of acquittal as to all the defendants. This Court held that, even if the District Court had erred in directing the acquittal, the Double Jeopardy Clause was offended "when the Court of Appeals set aside the judgment of acquittal and directed that the petitioners be Page 420 U. S. 348 tried again for the same offense." Id. at 369 U. S. 143. The Court noted that, although retrial is sometimes permissible after a mistrial is declared but no verdict or judgment has been entered, the verdict of acquittal foreclosed retrial, and thus barred appellate review.Finally, respondent places great weight on our decision in United States v. Sisson, 399 U. S. 267 (1970). He claims that Sisson extends the constitutional protection against Government appeals to any case in which the ruling appealed from is based upon facts outside the face of the indictment.Sisson arose under the former Criminal Appeals Act, and came here on direct appeal from the District Court. The defendant had been tried for refusing to submit to induction, and the jury had found him guilty. On a post-verdict motion, however, the District Court entered what it termed an "arrest of judgment," dismissing the indictment on the ground that Sisson could not be convicted because his sincere opposition to the war in Vietnam outweighed the country's need to draft him. The Government sought to appeal the District Court's ruling on the theory that it was within the "arresting judgment" provision of the Criminal Appeals Act. We held that the ruling was not appealable under either the "arresting judgment" or the "motion in bar" provisions of the Act, and dismissed the case for want of appellate jurisdiction.Writing for a plurality of four Justices, Mr. Justice Harlan gave three reasons for his conclusion that the District Court's ruling was not appealable as an arrest of judgment. First, he wrote, the District Court's ruling was not within the common law definition of an arrest of judgment, since it went beyond the face of the record. The Criminal Appeals Act, he noted, was drafted against a common law background in which the statutory phrase had a "well defined and limited meaning" that did not Page 420 U. S. 349 incorporate rulings that relied upon evidence introduced at trial. Second, the District Court's ruling failed to satisfy the statutory requirement that the decision arresting judgment be "for insufficiency of the indictment." The issue of the sincerity of Sisson's beliefs was not presented by the indictment; accordingly, the indictment was not "insufficient" under the appeals statute, since it was sufficient to charge an offense and it did not allege facts that, in themselves established the availability of a constitutional privilege. In Part II-C of the opinion, for which Mr. Justice Black provided a majority of the Court, Mr. Justice Harlan explained the third reason for concluding that the District Court's order was not an arrest of judgment: because the order was "bottomed on factual conclusions not found in the indictment, but instead made on the basis of evidence adduced at the trial," it was an acquittal "rendered by the trial court after the jury's verdict of guilty." 399 U.S. at 399 U. S. 288. The District Court's post-verdict ruling, he wrote, was indistinguishable from a hypothetical verdict of acquittal entered by a jury on an instruction incorporating the constitutional defense that the judge had recognized in his ruling. If the jury had been so instructed and had acquitted, he pointed out, there would plainly have been no appeal under the Criminal Appeals Act. The legislative history of the Act made it clear that Congress did not contemplate review of verdicts of acquittal, no matter how erroneous the constitutional theory underlying the instructions. Nor, he added, could an appeal have been taken consistently with the Double Jeopardy Clause. The latter point was made in the following passage:"Quite apart from the statute, it is, of course, well settled that an acquittal can 'not be reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and thereby violating the Constitution. . . . Page 420 U. S. 350 [I]n this country, a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offence.' United States v. Ball, 163 U. S. 662, 163 U. S. 671 (1896)."399 U.S. at 399 U. S. 289-290.Respondent argues that this passage was meant to provide an alternative holding for Sisson that, even if the Criminal Appeals Act would permit an appeal on the facts in Sisson, the Double Jeopardy Clause would not. In essence, respondent rests his case on what he perceives to be the Court's syllogism in this portion of the Sisson opinion: (1) the post-verdict ruling was not a common law arrest of judgment, but an acquittal; (2) under the Ball case, an acquittal cannot be appealed without offending the Double Jeopardy Clause; thus (3) the District Court's ruling in Sisson was shielded from review as a matter of constitutional law.We are constrained to disagree. A more natural reading of this passage suggests that the reference to the Double Jeopardy Clause was meant to apply to the hypothetical jury verdict, not to the order entered by the trial court in Sisson itself. [Footnote 17] Appeal from the hypothetical Page 420 U. S. 351 jury verdict would have been precluded both by the statute and by the Constitution; appeal from the District Court's actual ruling in the case, however, was barred solely by the statute. The only direct effect of the Constitution on the case was, as the Court pointed out in a footnote following the quoted passage, that, after this Court's jurisdictional dismissal, Sisson could not be retried. 399 U.S. at 399 U. S. 20 n. 18. [Footnote 18] Accordingly, we find Sisson no authority for the proposition that the Government cannot constitutionally appeal any post-verdict order that would have been an unappealable acquittal under the former Criminal Appeals Act.DThe Government has not seriously contended in this case that any ruling of law by a judge in the course of a trial is reviewable on the prosecution's motion, [Footnote 19] although this view has had some support among the commentators since Mr. Justice Holmes adopted it in his dissent to Kepner v. United States, supra. [Footnote 20] Mr. Justice Page 420 U. S. 352 Holmes accepted as common ground that the Double Jeopardy Clause forbids "a trial in a new and independent case where a man already had been tried once." 195 U.S. at 195 U. S. 134. But, in his view, the first jeopardy should be treated as continuing until both sides have exhausted their appeals on claimed errors of law, regardless of the possibility that the defendant may be subjected to retrial after a verdict of acquittal.A system permitting review of all claimed legal errors would have symmetry to recommend it, and would avoid the release of some defendants who have benefited from instructions or evidentiary rulings that are unduly favorable to them. But we have rejected this position in the past, and we continue to be of the view that the policies underlying the Double Jeopardy Clause militate against permitting the Government to appeal after a verdict of acquittal. Granting the Government such broad appeal rights would allow the prosecutor to seek to persuade a second trier of fact of the defendant's guilt after having failed with the first; it would permit him to reexamine the weaknesses in his first presentation in order to strengthen the second; and it would disserve the defendant's legitimate interest in the finality of a verdict of acquittal. [Footnote 21] These interests, however, do not apply in the case of a post-verdict ruling of law by a trial judge. Correction of an error of law at that stage would not grant the prosecutor a new trial or subject the defendant to the harassment traditionally associated with multiple prosecutions. We therefore conclude that, when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government Page 420 U. S. 353 may appeal from that ruling without running afoul of the Double Jeopardy Clause.IIIApplying these principles to the present case is a relatively straightforward task. The jury entered a verdict of guilty against Wilson. The ruling in his favor on the Marion motion could be acted on by the Court of Appeals or, indeed, this Court, without subjecting him to a second trial at the Government's behest. If he prevails on appeal, the matter will become final, and the Government will not be permitted to bring a second prosecution against him for the same offense. If he loses, the case must go back to the District Court for disposition of his remaining motions. We therefore reverse the judgment and remand for the Court of Appeals to consider the merits of the Government's appeal.Reversed

U.S. Supreme CourtUnited States v. Wilson, 420 U.S. 332 (1975)United States v. WilsonNo. 73-1395Argued December 9, 1974Decided February 25, 1975420 U.S. 332SyllabusThe jury entered a guilty verdict against respondent for a federal offense, but on one of respondent's post-verdict motions, the District Court dismissed the indictment on the ground that the delay between the offense and the indictment prejudiced respondent's right to a fair trial. The Court of Appeals dismissed the Government's appeal on the ground that the Double Jeopardy Clause barred review of the District Court's ruling. Because the ruling was based on facts brought out at the trial, the Court of Appeals held it was, in effect, an acquittal.Held: When a trial judge rules in favor of the defendant after a guilty verdict has been entered by the trier of fact, the Government may appeal from that ruling without contravening the Double Jeopardy Clause. Pp. 420 U. S. 335-353.(a) That Clause protects against Government appeals only where there is a danger of subjecting the defendant to a second trial for the same offense, and hence such protection does not attach to a trial judge's post-verdict correction of an error of law which would not grant the prosecution a new trial or subject the defendant to multiple prosecutions. Pp. 420 U. S. 339-353.(b) Here, the District Court's ruling in respondent's favor could be disposed of on appeal without subjecting him to a second trial at the Government's behest. If he prevails on appeal, the matter will become final, and the Government will not be permitted to bring a second prosecution for the same offense, whereas, if he loses, the case must return to the District Court for disposition of his remaining motions. P. 420 U. S. 353.492 F.2d 1345, reversed and remanded.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion in which BRENNAN, J., joined, post, p. 420 U. S. 353. Page 420 U. S. 333

1989_88-1476

Justice SCALIA delivered the opinion of the Court.The question presented in this case is whether, in a suit brought by a limited partnership, the citizenship of the limited partners must be taken into account to determine diversity of citizenship among the parties.IRespondent Arkoma Associates (Arkoma), a limited partnership organized under the laws of Arizona, brought suit on a contract dispute in the United States District Court for the Eastern District of Louisiana, relying upon diversity of citizenship for federal jurisdiction. The defendants, C. Tom Carden and Leonard L. Limes, citizens of Louisiana, moved to dismiss, contending that one of Arkoma's limited partners was also. a citizen of Louisiana. The District Court denied the motion, but certified the question for interlocutory appeal, which the Fifth Circuit declined. Thereafter Magee Drilling Company intervened in the suit and, together with the original defendants, counterclaimed against Arkoma under Texas law. Following a bench trial, the District Court awarded Arkoma a money judgment plus interest and attorney's fees; it dismissed Carden and Limes' counterclaim and as well as Magee's intervention and counterclaim. Carden, Limes, and Magee (petitioners here) appealed, and the Fifth Circuit affirmed. Page 494 U. S. 187 874 F.2d 226 (CA 5 1988). With respect to petitioners' jurisdictional challenge, the Court of Appeals found complete diversity, reasoning that Arkoma's citizenship should be determined by reference to the citizenship of the general, but not the limited, partners. We granted certiorari. 490 U.S. 1045, (1989).IIArticle III of the Constitution provides, in pertinent part, that "The judicial Power shall extend to . . . Controversies . . . between Citizens of different States." Congress first authorized the federal courts to exercise diversity jurisdiction in the Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 78. In its current form, the diversity statute provides that"[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds . . . $50,000 . . . , and is between . . . citizens of different States. . . ."28 U.S. C.A. § 1332(a) (Oct. 1989 Supp.). Since its enactment, we have interpreted the diversity statute to require "complete diversity" of citizenship. See Strawbridge v. Curtiss, 3 Cranch 267, (1806). The District Court erred in finding complete diversity in this case unless (1) a limited partnership may be considered in its own right a "citizen" of the State that created it, or (2) a federal court must look to the citizenship of only its general, but not its limited, partners to determine whether there is complete diversity of citizenship. We consider these questions in turn.AWe have often had to consider the status of artificial entities created by state law insofar as that bears upon the existence of federal diversity jurisdiction. The precise question posed under the terms of the diversity statute is whether such an entity may be considered a "citizen" of the State under whose laws it was created. [Footnote 1] A corporation is the paradigmatic Page 494 U. S. 188 artificial "person," and the Court has considered its proper characterization under the diversity statute on more than one occasion -- not always reaching the same conclusion. Initially, we held that a corporation "is certainly not a citizen," so that to determine the existence of diversity jurisdiction the Court must "look to the character of the individuals who compose [it]." Bank of United States v. Deveaux, 5 Cranch 61, 9 U. S. 86, 9 U. S. 91-92, (1809). We overruled Deveaux 35 years later in Louisville, C. & C.R. Co. v. Letson, 2 How. 497, 43 U. S. 558 (1844), which held that a corporation is "capable of being treated as a citizen of [the State which created it], as much as a natural person." Ten years later, we reaffirmed the result of Letson, though on the somewhat different theory that "those who use the corporate name, and exercise the faculties conferred by it," should be presumed conclusively to be citizens of the corporation's State of incorporation. Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 57 U. S. 329, (1854). Page 494 U. S. 189While the rule regarding the treatment of corporations as "citizens" has become firmly established, we have (with an exception to be discussed presently) just as firmly resisted extending that treatment to other entities. For example, in Chapman v. Barney, 129 U. S. 677 (1889), a case involving an unincorporated "joint stock company," we raised the question of jurisdiction on our own motion, and found it to be lacking:"On locking into the record, we find no satisfactory showing as to the citizenship of the plaintiff. The allegation of the amended petition is that the United States Express Company is a joint stock company organized under a law of the State of New York, and is a citizen of that State. But the express company cannot be a citizen of New York, within the meaning of the statutes regulating jurisdiction, unless it be a corporation. The allegation that the company was organized under the laws of New York is not an allegation that it is a corporation. In fact, the allegation is that the company is not a corporation, but a joint stock company -- that is, a mere partnership."Id. at 129 U. S. 682. Similarly, in Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449 (1900), we held that a "limited partnership association" -- although possessing "some of the characteristics of a corporation" and deemed a "citizen" by the law creating it -- may not be deemed a "citizen" under the jurisdictional rule established for corporations. Id. at 177 U. S. 456. "That rule must not be extended." Id. at 177 U. S. 457. As recently as 1965, our unanimous opinion in Steelworkers v. R.H. Bouligny, Inc., 382 U. S. 145, reiterated that "the doctrinal wall of Chapman v. Barney," id., 129 U.S. at 129 U. S. 151, would not be breached.The one exception to the admirable consistency of our jurisprudence on this matter is Puerto Rico v. Russell & Co., 288 U. S. 476 (1933), which held that the entity known as a sociedad en comandita, created under the civil law of Puerto Page 494 U. S. 190 Rico, could be treated as a citizen of Puerto Rico for purposes of determining federal court jurisdiction. The sociedad's juridical personality, we said,"is so complete in contemplation of the law of Puerto Rico that we see no adequate reason for holding that the sociedad has a different status for purposes of federal jurisdiction than a corporation organized under that law."Id. at 288 U. S. 482. Arkoma fairly argues that this language, and the outcome of the case,"reflec[t] the Supreme Court's willingness to look beyond the incorporated/unincorporated dichotomy and to study the internal organization, state law requirements, management structure, and capacity or lack thereof to act and/or sue, to determine diversity of citizenship."Brief for Respondent 14. The problem with this argument lies not in its logic, but in the fact that the approach it espouses was proposed and specifically rejected in Bouligny. There, in reaffirming "the doctrinal wall of Chapman v. Barney," we explained Russell as a case resolving the distinctive problem "of fitting an exotic creation of the civil law . . . into a federal scheme which knew it not." 382 U.S. at 382 U. S. 151. There could be no doubt, after Bouligny, that at least common law entities (and likely all entities beyond the Puerto Rican sociedad en comandita) would be treated for purposes of the diversity statute pursuant to what Russell called "[t]he tradition of the common law," which is "to treat as legal persons only incorporated groups and to assimilate all others to partnerships." 288 U.S. at 288 U. S. 480. [Footnote 2] Page 494 U. S. 191Arkoma claims to have found another exception to our Chapman tradition in Navarro Savings Assn. v. Lee, 446 U. S. 458 (1980). That case, however, did not involve the question whether a party that is an artificial entity other than a corporation can be considered a "citizen" of a State, but the quite separate question whether parties that were undoubted "citizens" (viz., natural persons) were the real parties to the controversy. The plaintiffs in Navarro were eight individual trustees of a Massachusetts business trust, suing in their own names. The defendant, Navarro Savings Association, disputed the existence of complete diversity, claiming that the trust beneficiaries, rather than the trustees, were the real parties to the controversy, and that the citizenship of the former and not the latter should therefore control. In the course of rejecting this claim, we did indeed discuss the characteristics of a Massachusetts business trust -- not at all, however, for the purpose of determining whether the trust had attributes making it a "citizen," but only for the purpose of establishing that the respondents were "active trustees whose control over the assets held in their names is real and substantial," thereby bringing them under the rule, "more than 150 years" old, which permits such trustees "to sue in their own right, without regard to the citizenship of the trust beneficiaries." Id. at 446 U. S. 465-466. Navarro, in short, has nothing to do with the Chapman question, except that it makes available to respondent Page 494 U. S. 192 the argument by analogy that, just as business reality is taken into account for purposes of determining whether a trustee is the real party to the controversy, so also it should be taken into account for purposes of determining whether an artificial entity is a citizen. That argument is, to put it mildly, less than compelling.BAs an alternative ground for finding complete diversity, Arkoma asserts that the Fifth Circuit correctly determined its citizenship solely by reference to the citizenship of its general partners, without regard to the citizenship of its limited partners. Only the general partners, it points out, "manage the assets, control the litigation, and bear the risk of liability for the limited partnership's debts," and, more broadly, "have exclusive and complete management and control of the operations of the partnership." Brief for Respondent 30, 36. This approach of looking to the citizenship of only some of the members of the artificial entity finds even less support in our precedent than looking to the State of organization (for which one could at least point to Russell). We have never held that an artificial entity, suing or being sued in its own name, can invoke the diversity jurisdiction of the federal courts based on the citizenship of some but not all of its members. No doubt some members of the joint stock company in Chapman, the labor union in Bouligny, and the limited partnership association in Great Southern exercised greater control over their respective entities than other members. But such considerations have played no part in our decisions.To support its approach, Arkoma seeks to press Navarro into service once again, arguing that, just as that case looked to the trustees to determine the citizenship of the business trust, so also here we should look to the general partners, who have the management powers, in determining the citizenship of this partnership. As we have already explained, however, Navarro had nothing to do with the citizenship of Page 494 U. S. 193 the "trust," since it was a suit by the trustees in their own names.The dissent supports Arkoma's argument on this point, though, as we have described, under the rubric of determining which parties supposedly before the Court are the real parties, rather than under the rubric of determining the citizenship of the limited partnership. See n 1, supra. The dissent asserts that "[t]he real party to the controversy approach," post at 494 U. S. 201 -- by which it means an approach that looks to "control over the conduct of the business and the ability to initiate or control the course of litigation," post at 494 U. S. 204 -- "has been implemented by the Court both in its oldest and in its most recent cases examining diversity jurisdiction with respect to business associations." Post at 494 U. S. 201. Not a single case the dissent discusses, neither old nor new, supports that assertion. Deveaux, which was in any event overruled by Letson, seems to be applying not a "real party to the controversy" test, but rather the principle that, for jurisdictional purposes, the corporation has no substance, and merely "represents" its shareholders, see 5 Cranch, at 9 U. S. 90-91; but even if it can be regarded as applying a "real party to the controversy" test, it deems that test to be met by all the shareholders of the corporation, without regard to their "control over the operation of the business." Marshall, which as we have discussed re-rationalized Letson's holding that a corporation was a "citizen" in its own right, contains language quite clearly adopting a "real party to the controversy" approach, and arguably even adopting a "control" test for that status. ("[T]he court . . . will look behind the corporate or collective name . . . to find the persons who act as the representatives, curators, or trustees. . . ." 16 How. at 57 U. S. 328-329 (emphasis added). "The presumption arising from the habitat of a corporation in the place of its creation [is] conclusive as to the residence or citizenship of those who use the corporate name and exercise the faculties conferred by it. . . . " Id. at 57 U. S. 329 (emphasis added).) But as we have also discussed, and as Page 494 U. S. 194 the last quotation shows, that analysis was a complete fiction; the real citizenship of the shareholders (or the controlling shareholders) was not consulted at all. [Footnote 3] From the fictional Marshall, the dissent must leap almost a century and a third to Navarro to find a "real party to the controversy" analysis that discusses "control." That case, as we have said, is irrelevant, since it involved not a juridical person but the distinctive common law institution of trustees.The dissent finds its position supported, rather than contradicted, by the trilogy of Chapman, Great Southern, and Bouligny -- cases that did involve juridical persons but that did not apply "real party to the controversy" analysis, much less a "control" test as the criterion for that status. In those cases, the dissent explains, "the members of each association held equivalent power and control over the association's assets, business, and litigation." Post at 494 U. S. 202. It seeks to establish this factual matter, however, not from the text of the opinions (where not the slightest discussion of the point appears) but, for Chapman, by citation of scholarly commentary dealing with the general characteristics of joint stock company agreements, with no reference to (because the record does not contain) the particular agreement at issue in the case, post at 494 U. S. 202-203; for Great Southern, by citation of scholarly commentary dealing with the general characteristics of Pennsylvania limited partnership associations, and citation of Pennsylvania statutes, post at 494 U. S. 203; and, for Bouligny, by nothing more than the observation that"[t]here was no indication that any of the union members had any greater power over the litigation or the union's business and Page 494 U. S. 195 assets than any other member, and, therefore, as in Chapman and Great Southern, the Court was not called upon to decide . . ."the issue, post at 494 U. S. 204. This will not do. Since diversity of citizenship is a jurisdictional requirement, the Court is always "called upon to decide" it. As the Court said in Great Southern itself:"[T]he failure of parties to urge objections [to diversity of citizenship] cannot relieve this court from the duty of ascertaining from the record whether the Circuit Court could properly take jurisdiction of this suit. . . .""The rule . . . is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act."177 U.S. at 177 U. S. 453 (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U. S. 379, 111 U. S. 382 (1884)). If, as the dissent contends, these three cases were applying a "real party to the controversy" test governed by "control" over the associations, so that the citizenship of all members would be consulted only if all members had equivalent control, it is inconceivable that the existence of equivalency, or at least the absence of any reason to suspect nonequivalency, would not have been mentioned in the opinions. Given what 180 years of cases have said and done, as opposed to what they might have said, it is difficult to understand how the dissent can characterize as "newly formulated" the"rule that the Court will, without analysis of the particular entity before it, count every member of an unincorporated association for purposes of diversity jurisdiction."Post at 494 U. S. 199.In sum, we reject the contention that, to determine, for diversity purposes, the citizenship of an artificial entity, the court may consult the citizenship of less than all of the entity's members. We adhere to our oft-repeated rule that diversity jurisdiction in a suit by or against the entity depends on the citizenship of "all the members," Chapman, 129 Page 494 U. S. 196 U.S. at 129 U. S. 682, "the several persons composing such association," Great Southern, 177 U.S. at 177 U. S. 456, "each of its members," Bouligny, 382 U.S. at 382 U. S. 146.CThe resolutions we have reached above can validly be characterized as technical, precedent-bound, and unresponsive to policy considerations raised by the changing realities of business organization. But, as must be evident from our earlier discussion, that has been the character of our jurisprudence in this field after Letson. See Currie, The Federal Courts and the American Law Institute, 36 U.Chi.L.Rev. 1, 35 (1968). Arkoma is undoubtedly correct that limited partnerships are functionally similar to "other types of organizations that have access to federal courts," and is perhaps correct that "[c]onsiderations of basic fairness and substance over form require that limited partnerships receive similar treatment." Brief for Respondent 33. Similar arguments were made in Bouligny. The District Court there had upheld removal because it could divine "'no common sense reason for treating an unincorporated national labor union differently from a corporation,'" 382 U.S. at 382 U. S. 146, and we recognized that that contention had "considerable merit," id. at 382 U. S. 150. We concluded, however, that "[w]hether unincorporated labor unions ought to be assimilated to the status of corporations for diversity purposes," id, at 382 U. S. 153, is "properly a matter for legislative consideration which cannot adequately or appropriately be dealt with by this Court," id. at 382 U. S. 147. In other words, having entered the field of diversity policy with regard to artificial entities once (and forcefully) in Letson, we have left further adjustments to be made by Congress.Congress has not been idle. In 1958 it revised the rule established in Letson, providing that a corporation shall be deemed a citizen not only of its State of incorporation but also "of the State where it has its principal place of business." 28 U.S.C.A. § 1332(c) (Oct.1989 Supp.). No provision was made for the treatment Page 494 U. S. 197 of artificial entities other than corporations, although the existence of many new, post-Letson forms of commercial enterprises, including at least the sort of joint stock company at issue in Chapman, the sort of limited partnership association at issue in Great Southern, and the sort of Massachusetts business trust at issue in Navarro, must have been obvious.Thus, the course we take today does not so much disregard the policy of accommodating our diversity jurisdiction to the changing realities of commercial organization, as it honors the more important policy of leaving that to the people's elected representatives. Such accommodation is not only performed more legitimately by Congress than by courts, but it is performed more intelligently by legislation than by interpretation of the statutory word "citizen." The fifty States have created, and will continue to create, a wide assortment of artificial entities possessing different powers and characteristics, and composed of various classes of members with varying degrees of interest and control. Which of them is entitled to be considered a "citizen" for diversity purposes, and which of their members' citizenship is to be consulted, are questions more readily resolved by legislative prescription than by legal reasoning, and questions whose complexity is particularly unwelcome at the threshold stage of determining whether a court has jurisdiction. We have long since decided that, having established special treatment for corporations, we will leave the rest to Congress; we adhere to that decision.IIIArkoma argues that even if this Court finds complete diversity lacking with respect to Carden and Limes, we should nonetheless affirm the judgment with respect to Magee because complete diversity indisputably exists between Magee and Arkoma. This question was not considered by the Court of Appeals. We decline to decide it in the first instance, and leave it to be resolved by the Court of Appeals on remand. Page 494 U. S. 198The 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 CourtCarden v. Arkoma Assocs., 494 U.S. 185 (1990)Carden v. Arkoma AssociatesNo. 88-1476Argued Nov. 7, 1989Decided Feb. 27, 1990494 U.S. 185SyllabusRespondent Arkoma Associates, a limited partnership organized under Arizona law, sued petitioners Carden and Limes on a contract dispute in the District Court relying on diversity of citizenship for federal jurisdiction. Carden and Limes, Louisiana citizens, moved to dismiss on the ground that one of Arkoma's limited partners was also a Louisiana citizen. The court denied the motion, finding the requisite "complete diversity." After petitioner Magee Drilling Co. intervened and counterclaimed against Arkoma, the court awarded judgment to Arkoma. The Court of Appeals affirmed, finding, with respect to the jurisdictional challenge, that complete diversity existed because Arkoma's citizenship should be determined by reference to the citizenship of its general, but not its limited, partners.Held:1. Complete diversity is lacking with respect to Carden and Limes. Pp. 494 U. S. 187-197.(a) A limited partnership is not in its own right a "citizen" of the State that created it within the meaning of the federal diversity statute. This Court has firmly resisted extending the well established rule treating corporations as "citizens" to other artificial entities. Chapman v. Barney, 129 U. S. 677, 682; Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 456, 177 U. S. 457; Steelworkers v. R.H. Bouligny, Inc., 382 U. S. 145, 382 U. S. 151. Puerto Rico v. Russell & Co., 288 U. S. 476. Navarro Savings Assn. v. Lee, 446 U. S. 458. Pp. 494 U. S. 187-192.(b) A federal court must look to the citizenship of a partnership's limited, as well as its general, partners to determine whether there is complete diversity. That only the general partners have exclusive and complete control over the partnership's operations and the litigation is irrelevant. This Court's decisions have never held that an artificial entity can invoke diversity jurisdiction based on the citizenship of some but not all of its members. Bank of United States v. Deveaux, 5 Cranch 61, 9 U. S. 90-91, Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 57 U. S. 328-329, Navarro, supra, distinguished. Pp. 494 U. S. 192-196.(c) Whether, and which, artificial entities other than corporations are entitled to be considered "citizens" for diversity purposes are complex questions best left to Congress to decide. Pp. 494 U. S. 196-197. Page 494 U. S. 1862. The question whether complete diversity exists between Magee and Arkoma was not considered by the Court of Appeals, and this Court will not decide it in the first instance. P. 494 U. S. 197.874 F.2d 226 (CA5, 1988), reversed and remanded.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 494 U. S. 198.

1983_82-973

JUSTICE STEVENS delivered the opinion of the Court.For over 30 years, the Attorney General has possessed statutory authority to withhold the deportation of an alien upon a finding that the alien would be subject to persecution in the country to which he would be deported. The question presented by this case is whether a deportable alien must demonstrate a clear probability of persecution in order to obtain such relief under § 243(h) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1253(h), as amended by § 203(e) of the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 107.IRespondent, a Yugoslavian citizen, entered the United States in 1976 to visit his sister, then a permanent resident alien residing in Chicago. Petitioner, the Immigration and Naturalization Service (INS), instituted deportation proceedings against respondent when he overstayed his 6-week period of admission. Respondent admitted that he was deportable and agreed to depart voluntarily by February, 1977. In January, 1977, however, respondent married a United States citizen who obtained approval of a visa petition on his behalf. Shortly thereafter, respondent's wife died in an automobile accident. The approval of respondent's visa petition was Page 467 U. S. 410 automatically revoked, and petitioner ordered respondent to surrender for deportation to Yugoslavia.Respondent moved to reopen the deportation proceedings in August, 1977, seeking relief under § 243(h) of the Immigration and Naturalization Act, which then provided:"The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason."8 U.S.C. § 1253(h) (1976 ed.). Respondent's supporting affidavit stated that he had become active in an anti-Communist organization after his marriage in early 1977, that his father-in-1aw had been imprisoned in Yugoslavia because of membership in that organization, and that he feared imprisonment upon his return to Yugoslavia.In October, 1979, the Immigration Judge denied respondent's motion to reopen without conducting an evidentiary hearing. [Footnote 1] The Board of Immigration Appeals (BIA) upheld that action, explaining:"A Motion to reopen based on a section 243 (h) claim of persecution must contain prima facie evidence that there is a clear probability of persecution to be directed at the individual respondent. See Cherg Kai Fu v. INS, 386 F.2d 70 (2 Cir.1967), cert. denied, 390 U.S. 1003 (1968). Although the applicant here claims to be eligible for withholding of deportation which was not available to him at the time of his deportation hearing, he has not Page 467 U. S. 411 presented any evidence which would indicate that he will be singled out for persecution."App. to Pet. for Cert. 34-35. Respondent did not seek judicial review of that decision.After receiving notice to surrender for deportation in February, 1981, respondent filed his second motion to reopen. [Footnote 2] He again sought relief pursuant to § 243(h), which then -- because of its amendment in 1980 -- read as follows:"The Attorney General shall not deport or return any alien . . . to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion."8 U.S.C. § 1253(h)(1).Although additional written material was submitted in support of the second motion, like the first, it was denied without a hearing. The Board of Immigration Appeals held that respondent had not shown that the additional evidence was unavailable at the time his first motion had been filed, and, further, that he had still failed to submit prima facie evidence that "there is a clear probability of persecution" directed at respondent individually. [Footnote 3] Thus, the Board applied the same Page 467 U. S. 412 standard of proof it had applied regarding respondent's first motion to reopen, notwithstanding the intervening amendment of § 243(h) in 1980.The United States Court of Appeals for the Second Circuit reversed and remanded for a plenary hearing under a different standard of proof. Stevic v. Sava, 678 F.2d 401 (1982). Specifically, it held that respondent no longer had the burden of showing "a clear probability of persecution," but instead could avoid deportation by demonstrating a "well-founded fear of persecution." The latter language is contained in a definition of the term "refugee" adopted by a United Nations Protocol to which the United States has adhered since 1968. The Court of Appeals held that the Refugee Act of 1980 changed the standard of proof that an alien must satisfy to obtain relief under § 243(h), concluding that Congress intended to abandon the "clear probability of persecution" standard and substitute the "well-founded fear of persecution" language of the Protocol as the standard. Other than stating that the Protocol language was "considerably more generous" or "somewhat more generous" to the alien than the former standard, id. at 405, 406, the court did not detail the Page 467 U. S. 413 differences between them and stated that it "would be unwise to attempt a more detailed elaboration of the applicable legal test under the Protocol," id. at 409. The court concluded that respondent's showing entitled him to a hearing under the new standard.Because of the importance of the question presented, and because of the conflict in the Circuits on the question, [Footnote 4] we granted certiorari, 460 U.S. 1010 (1983). We now reverse and hold that an alien must establish a clear probability of persecution to avoid deportation under § 243(h).IIThe basic contentions of the parties in this case may be summarized briefly. Petitioner contends that the words "clear probability of persecution" and "well-founded fear of persecution" are not self-explanatory, and, when read in the light of their usage by courts prior to adoption of the Refugee Act of 1980, it is obvious that there is no "significant" difference between them. If there is a "significant" difference between them, however, petitioner argues that Congress' clear intent in enacting the Refugee Act of 1980 was to maintain the status quo, which petitioner argues would mean continued application of the clear-probability-of-persecution standard to withholding of deportation claims. In this regard, petitioner maintains that our accession to the United Nations Protocol in 1968 was based on the express "understanding" that it would not alter the "substance" of our immigration laws.Respondent argues that the standards are not coterminous, and that the well-founded-fear-of-persecution standard turns almost entirely on the alien's state of mind. Respondent points out that the well-founded-fear language was adopted in the definition of a refugee contained in the United Nations Protocol adhered to by the United States since 1968. Respondent Page 467 U. S. 414 basically contends that, ever since 1968, the well-founded-fear standard should have applied to withholding of deportation claims, but Congress simply failed to honor the Protocol by failing to enact implementing legislation until adoption of the Refugee Act of 1980, which contains the Protocol definition of refugee.Each party is plainly correct in one regard: in 1980, Congress intended to adopt a standard for withholding of deportation claims by reference to preexisting sources of law. We begin our analysis of this case by examining those sources of law.IIIUnited States Refugee Law prior to 1968Legislation enacted by the Congress in 1950, [Footnote 5] 1952, [Footnote 6] and 1965 [Footnote 7] authorized the Attorney General to withhold deportation of an otherwise deportable alien if the alien would be subject to persecution upon deportation. At least before 1968, it was clear that an alien was required to demonstrate a "clear probability of persecution" or a "likelihood of persecution" in order to be eligible for withholding of deportation Page 467 U. S. 415 under § 243(h) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1253(h) (1964 ed.). E.g., Cheng Kai Fu v. INS, 386 F.2d 750, 753 (CA2 1967), cert. denied, 390 U.S. 1003 (1968); Lena v. INS, 379 F.2d 536, 538 (CA7 1967); In re Janus and Janek, 12 I. & N. Dec. 866, 873 (BIA 1968); In re Kojoory, 12 I. & N. Dec. 215, 220 (BIA 1967). With certain exceptions, this relief was available to any alien who was already "within the United States," albeit unlawfully and subject to deportation.The relief authorized by § 243(h) was not, however, available to aliens at the border seeking refuge in the United States due to persecution. See generally Leng May Ma v. Barber, 357 U. S. 185 (1958). Since 1947, relief to refugees at our borders has taken the form of an"immigration and naturalization policy which granted immigration preferences to 'displaced persons,' 'refugees,' or persons who fled certain areas of the world because of 'persecution or fear of persecution on account of race, religion, or political opinion.' Although the language through which Congress has implemented this policy since 1947 has changed slightly from time to time, the basic policy has remained constant -- to provide a haven for homeless refugees and to fulfill American responsibilities in connection with the International Refugee Organization of the United Nations."Rosenberg v. Yee Chien Woo, 402 U. S. 49, 402 U. S. 52 (1971).Most significantly, the Attorney General was authorized under § 203(a)(7) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1153(a)(7)(A)(i) (1976 ed.), to permit "conditional entry" as immigrants for a number of refugees fleeing from a Communist-dominated area or the Middle East "because of persecution or fear of persecution on account of race, religion, or political opinion." See also § 212(d)(5) of the Act, 8 U.S.C. § 1182(d)(5) (granting Attorney General discretion to "parole" aliens into the United States temporarily Page 467 U. S. 416 for emergency reasons). An alien seeking admission under § 203(a)(7) was required to establish a good reason to fear persecution. Compare In re Tan, 12 I. & N. Dec. 564, 569-570 (BIA 1967), with In re Ugricic, 14 I. & N. Dec. 384, 385-386 (Dist.Dir.1972). [Footnote 8]The United Nations ProtocolIn 1968, the United States acceded to the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577. The Protocol bound parties to comply with the substantive provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (July 28, 1951) [Footnote 9] with respect to "refugees" as defined in Article 1.2 of the Protocol.Article 1.2 of the Protocol defines a "refugee" as an individual who,"owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."Compare 19 U.S.T. 6225 with 19 U.S.T. 6261 (1968).Two of the substantive provisions of the Convention are germane to the issue before us. Article 33.1 of the Convention Page 467 U. S. 417 provides:"No 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."19 U.S.T. at 6276. Article 34 provides, in pertinent part: "The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. . . ." Ibid. [Footnote 10]The President and the Senate believed that the Protocol was largely consistent with existing law. There are many statements to that effect in the legislative history of the accession to the Protocol. E.g., S.Exec.Rep. No. 14, 90th Cong., 2d Sess., 4 (1968) ("refugees in the United States have long enjoyed the protection and the rights which the protocol calls for"); id. at 6, 7 ("the United States already meets the standards of the Protocol"); see also id. at 2; S.Exec. K, 90th Cong., 2d Sess., III, VII (1968); 114 Cong.Rec. 29391 (1968) (remarks of Sen. Mansfield); id. at 27757 (remarks of Sen. Proxmire). And it was "absolutely clear" that the Protocol would not "requir[e] the United States to admit new categories or numbers of aliens." S.Exec.Rep. No. 14, supra, at 19. It was also believed that apparent differences Page 467 U. S. 418 between the Protocol and existing statutory law could be reconciled by the Attorney General in administration, and did not require any modification of statutory language. See, e.g., S.Exec. K, supra, at VIII.United States Refugee Law: 1968-1980Five years after the United States' accession to the Protocol, the Board of Immigration Appeals was confronted with the same basic issue confronting us today in the case of In re Dunar, 14 I. & N. Dec. 310 (1973). The deportee argued that he was entitled to withholding of deportation upon a showing of a well-founded fear of persecution, and essentially maintained that a conjectural possibility of persecution would suffice to make the fear "well-founded." The Board rejected that interpretation of "well-founded," and stated that a likelihood of persecution was required for the fear to be "well-founded." Id. at 319. It observed that neither § 243(h) nor Article 33 used the term "well-founded fear," and stated:"Article 33 speaks in terms of threat to life or freedom on account of any of the five enumerated reasons. Such threats would also constitute subjection to persecution within the purview of section 243(h). The latter has also been construed to encompass economic sanctions sufficiently harsh to constitute a threat to life or freedom, Dunat v. Hurney, 297 F.2d 744 (3 Cir., 1962); cf. Kovac v. INS, 407 F.2d 102 (9 Cir., 1969). In our estimation, there is no substantial difference in coverage of section 243(h) and Article 33. We are satisfied that distinctions in terminology can be reconciled on a case-by-case consideration as they arise."Id. at 320.The Board concluded that"Article 33 has effected no substantial changes in the application of section 243(h), either by way of burden of proof, coverage, or manner of arriving at Page 467 U. S. 419 decisions,"id. at 323, [Footnote 11] and stated that Dunar had failed to establish"the likelihood that he would be persecuted. . . . Even if we apply the nomenclature of Articles 1 and 33, we are satisfied that respondent has failed to show a well-founded fear that his life or freedom will be threatened,"id. at 324.Although, before In re Dunar, the Board and the courts had consistently used a clear probability or likelihood standard under § 243(h), after that case, the term "well-founded fear" was employed in some cases. [Footnote 12] The Court of Appeals for the Seventh Circuit, which had construed § 243(h) as applying Page 467 U. S. 420 only to "cases of clear probability of persecution" in a frequently cited case decided before 1968, Lena v. INS, 379 F.2d 536, 538 (1967), reached the same conclusion in a case decided after the United States' adherence to the Protocol. Kashani v. INS, 547 F.2d 376 (1977). In that opinion, Judge Swygert reasoned that the "well-founded fear of persecution" language could "only be satisfied by objective evidence," and that it would, "in practice, converge" with the "clear probability" standard that the Seventh Circuit had previously "engrafted onto [§]243(h)." Id. at 379. Other Courts of Appeals appeared to reach essentially the same conclusion. See e.g., Fleurinor v. INS, 585 F.2d 129, 132, 134 (CA5 1978); Pereira-Diaz v. INS, 551 F.2d 1149, 1154 (CA9 1977); Zamora v. INS, 534 F.2d 1055, 1058, 1063 (CA2 1976).While the Protocol was the source of some controversy with respect to the standard for § 243(h) claims for withholding of deportation, the United States' accession did not appear to raise any questions concerning the standard to be applied for § 203(a)(7) requests for admission. The "good reason to fear persecution" language was employed in such cases. See, e.g., In re Ugricic, 14 I. & N. Dec. at 385-386. [Footnote 13] Page 467 U. S. 421IVSection 203(e) of the Refugee Act of 1980 amended the language of § 243(h), basically conforming it to the language of Article 33 of the United Nations Protocol. [Footnote 14] The amendment made three changes in the text of § 243(h), but none of these three changes expressly governs the standard of proof an applicant must satisfy or implicitly changes that standard. [Footnote 15] The amended § 243(h), like Article 33, makes no mention of a probability of persecution or a well-founded fear of persecution. In short, the text of the statute simply does not specify Page 467 U. S. 422 how great a possibility of persecution must exist to qualify the alien for withholding of deportation. To the extent such a standard can be inferred from the bare language of the provision, it appears that a likelihood of persecution is required. [Footnote 16] The section literally provides for withholding of deportation only if the alien's life or freedom "would" be threatened in the country to which he would be deported; it does not require withholding if the alien "might" or "could" be subject to persecution. Finally, § 243(h), both prior to and after amendment, makes no mention of the term "refugee"; rather, any alien within the United States is entitled to withholding if he meets the standard set forth.Respondent understandably does not rely upon the specific textual changes in § 243(h) in support of his position that a well-founded fear of persecution entitles him to withholding of deportation. Instead, respondent points to the provision of the Refugee Act which eliminated the ideological and geographical restrictions on admission of refugees under § 203(a)(7) and adopted an expanded version of the United Nations Protocol definition of "refugee." This definition contains the well-founded-fear language, and now appears under § 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A). Other provisions of the Immigration and Nationality Act, as amended, now provide preferential immigration status, within numerical limits, to those qualifying as refugees under the modified Protocol definition [Footnote 17] and renders a more limited class of refugees, though Page 467 U. S. 423 still a class broader than the Protocol definition, eligible for a discretionary grant of asylum. [Footnote 18]Respondent, however, is not seeking discretionary relief under these provisions, which explicitly employ the well-founded-fear standard now appearing in § 101(a)(42)(A). Rather, he claims he is entitled to withholding of deportation under § 243(h) upon establishing a well-founded fear of persecution. Section 243(h), however, does not refer to § 101(a)(42)(A). Hence, there is no textual basis in the statute for concluding that the well-founded-fear-of-persecution Page 467 U. S. 424 standard is relevant to a withholding of deportation claim under § 243(h).Before examining the legislative history of the Refugee Act of 1980 in order to ascertain whether Congress nevertheless intended a well-founded-fear standard to be employed under § 243(h), we observe that the Refugee Act itself does not contain any definition of the "well-founded fear of persecution" language contained in § 101(a)(42)(A). The parties vigorously contest whether the well-founded-fear standard is coterminous with the clear-probability-of-persecution standard.Initially, we do not think there is any serious dispute regarding the meaning of the clear-probability standard under the § 243(h) case law. [Footnote 19] The question under that standard is whether it is more likely than not that the alien would be subject to persecution. The argument of the parties on this point is whether the well-founded-fear standard is the same as the clear-probability standard as just defined, or whether it is more generous to the alien.Petitioner argues that persecution must be more likely than not for a fear of persecution to be considered "well founded." The positions of respondent and several amici curiae are somewhat amorphous. Respondent seems to maintain that a fear of persecution is "well-founded" if the evidence establishes some objective basis in reality for the fear. This would appear to mean that, so long as the fear is not imaginary -- i.e., if it is founded in reality at all -- it is "well-founded." A more moderate position is that, so long as an objective situation is established by the evidence, it need not be Page 467 U. S. 425 shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.Petitioner and respondent seem to agree that, prior to passage of the Refugee Act, the Board and the courts actually used a clear-probability standard for § 243(h) claims. That is, prior to the amendment, § 243(h) relief would be granted if the evidence established that it was more likely than not that the alien would be persecuted in the country to which he was being deported; relief would not be granted merely upon a showing of some basis in reality for the fear, or if there was only a reasonable possibility of persecution falling short of a probability. Petitioner argues that some of the prior case law using the term "well-founded fear" simply used that term interchangeably with the phrase "clear probability." Respondent agrees in substance, but argues that, although prior cases employed the term "well-founded fear," they misconstrued the meaning of the term under the United Nations Protocol.For purposes of our analysis, we may assume, as the Court of Appeals concluded, that the well-founded-fear standard is more generous than the clear-probability-of-persecution standard, because we can identify no basis in the legislative history for applying that standard in § 243(h) proceedings or any legislative intent to alter the preexisting practice.The principal motivation for the enactment of the Refugee Act of 1980 was a desire to revise and regularize the procedures governing the admission of refugees into the United States. The primary substantive change Congress intended to make under the Refugee Act, and indeed, in our view, the only substantive change even relevant to this case, was to eliminate the piecemeal approach to admission of refugees previously existing under § 203(a)(7) and § 212(d)(5) of the Immigration and Nationality Act and § 108 of the regulations, and to establish a systematic scheme for admission and resettlement of refugees. S.Rep. No. 96-256, p. 1 (1979) (S.Rep.); H.R.Rep. No. 96-608, pp. 1-5 (1979) (H.R. Page 467 U. S. 426 Rep.). The Act adopted, and indeed, expanded upon, the Protocol definition of "refugee," S.Rep. at 19; H.R.Rep. at 9-10, and intended that the definition would be construed consistently with the Protocol, S.Rep. at 9, 20. It was plainly recognized, however, that"merely because an individual or group of refugees comes within the definition will not guarantee resettlement in the United States. The Committee is of the opinion that the new definition does not create a new and expanded means of entry, but instead regularizes and formalizes the policies and practices that have been followed in recent years."H.R.Rep. at 10. The Congress distinguished between discretionary grants of refugee admission or asylum and the entitlement to a withholding of deportation if the § 243(h) standard was met. See id. at 17-18. [Footnote 20] Page 467 U. S. 427Elimination of the geographic and ideological restrictions under the former § 203(a)(7) was thought to bring the United States' scheme into conformity with its obligations under the Protocol, see S.Rep. at 4, 15-16, [Footnote 21] and, in our view, these references are to the United States' obligations under Article 34 to facilitate the naturalization of refugees within the definition of the Protocol. There is, as always, some ambiguity in the legislative history -- the term "asylum," in particular, seems to be used in various ways, see, e.g., S.Rep. at 9, 16, but that is understandable, given that the same problem with nomenclature has been evident in case law as well. See In re Lam, Interim Dec. No. 2857, p. 5 (BIA, Mar. 24, 1981). Page 467 U. S. 428 Going to the substance of the matter, however, it seems clear that Congress understood that refugee status alone did not require withholding of deportation, but rather, the alien had to satisfy the standard under § 243(h), S.Rep. at 16. The amendment of § 243(h) was explicitly recognized to be a mere conforming amendment, added "for the sake of clarity," and was plainly not intended to change the standard. H.R.Rep. at 17-18.The Court of Appeals' decision rests on the mistaken premise that every alien who qualifies as a "refugee" under the statutory definition is also entitled to a withholding of deportation under § 243(h). We find no support for this conclusion in either the language of § 243(h), the structure of the amended Act, or the legislative history. [Footnote 22] Page 467 U. S. 429We have deliberately avoided any attempt to state the governing standard beyond noting that it requires that an application be supported by evidence establishing that it is more Page 467 U. S. 430 likely than not that the alien would be subject to persecution on one of the specified grounds. This standard is a familiar one to immigration authorities and reviewing courts, and Congress did not intend to alter it in 1980. We observe that, shortly after adoption of the Refugee Act, the Board explained:"As we have only quite recently acquired jurisdiction over asylum claims, we are only just now beginning to resolve some of the problems caused by this addition to our jurisdiction, including the problem of determining exactly how withholding of deportation and asylum are to fit together."In re Lam, Interim Dec. No. 2857, p. 6, n. 4 (BIA, Mar. 24, 1981). Today we resolve one of those problems by deciding that the "clear probability of persecution" standard remains applicable to § 243(h) withholding of deportation claims. We do not decide the meaning of the phrase "well-founded fear of persecution" which is applicable by the terms of the Act and regulations to requests for discretionary asylum. That issue is not presented by this case.The Court of Appeals granted respondent relief based on its understanding of a standard which, even if properly understood, does not entitle an alien to withholding of deportation under § 243(h). Our holding does, of course, require the Court of Appeals to reexamine this record to determine whether the evidence submitted by respondent entitles him to a plenary hearing under the proper standard.The judgment of the Court of Appeals is reversed, and the cause is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtINS v. Stevic, 467 U.S. 407 (1984)Immigration and Naturalization Service v. StevicNo. 82-973Argued December 6, 1983Decided June 5, 1984467 U.S. 407SyllabusAfter he was ordered to surrender for deportation, respondent alien in 1977 moved to reopen the deportation proceedings, seeking relief under § 243(h) of the Immigration and Nationality Act of 1952 (INA), which then authorized the Attorney General to withhold deportation of an alien upon a finding that the alien "would be subject to persecution" in the country to which he would be deported. The Immigration Judge denied the motion without a hearing, and was upheld by the Board of Immigration Appeals (BIA), which held that respondent had not met his burden of showing that there was a clear probability of persecution. Respondent did not appeal this decision. Subsequently, in 1981, after receiving another notice to surrender for deportation, respondent filed a second motion to reopen, again seeking relief under § 243(h), which in the meantime had been amended by the Refugee Act of 1980 -- in conformity with the language of Article 33 of the 1968 United Nations Protocol Relating to the Status of Refugees that had been acceded to by the United States -- to provide that the Attorney General shall not deport an alien if the Attorney General determines that the alien's "life or freedom would be threatened" in the country to which he would be deported. This motion was also denied without a hearing under the same standard of proof as was applied in the previous denial. The Court of Appeals reversed and remanded, holding that respondent no longer had the burden of showing "a clear probability of persecution," but instead could avoid deportation by showing a "well-founded fear of persecution," the latter language being contained in a definition of the term "refugee" adopted by the United Nations Protocol. The court concluded that the Refugee Act of 1980 so changed the standard of proof, and that respondent's showing entitled him to a hearing under the new standard.Held: An alien must establish a clear probability of persecution to avoid deportation under § 243(h). Pp. 467 U. S. 413-430.(a) At least before 1968, it was clear that an alien was required to demonstrate a "clear probability of persecution" or a "likelihood of persecution" to be eligible for withholding of deportation under § 243(h). Relief under § 243(h) was not, however, available to aliens at the border seeking refuge in the United States due to persecution. They could Page 467 U. S. 408 seek admission only under § 203(a)(7) of the INA, and were required to establish a good reason to fear persecution. The legislative history of the United States' accession to the United Nations Protocol discloses that the President and Senate believed that the Protocol was consistent with existing law. While the Protocol was the source of some controversy with respect to the standard of proof for § 243(h) claims for withholding of deportation, the accession to the Protocol did not appear to raise any questions concerning the standard to be applied for § 203(a)(7) requests for admission, the "good reason to fear persecution" language being employed in such cases. Pp. 467 U. S. 414-420.(b) While the text of § 243(h), as amended in 1980, does not specify how great a possibility of persecution must exist to qualify an alien for withholding of deportation, to the extent a standard can be inferred from the bare language, it appears that a likelihood of persecution is required. The section provides for a withholding of deportation only if the alien's life or freedom "would" be threatened, not if he "might" or "could" be subject to persecution. Respondent is seeking relief under § 243(h), not under provisions which, as amended by the Refugee Act, employ the "well-founded fear" standard that now appears in § 201(a)(42)(A) of the INA and that was adopted from the United Nations Protocol's definition of "refugee." Section 243(h) does not refer to § 201(a)(42)(A). Hence, there is no textual basis in the statute for concluding that the well-founded-fear-of-persecution standard is relevant to the withholding of deportation under § 243(h). The 1980 amendment of § 243(h) was recognized by Congress as a mere conforming amendment, added "for the sake of clarity," and was plainly not intended to change the standard for withholding deportation. There is no support in either § 243(h)'s language, the structure of the amended INA, or the legislative history for the Court of Appeals' conclusion that every alien who qualifies as a "refugee" under the statutory definition is also entitled to a withholding of deportation under § 243(h). The Court of Appeals granted respondent relief based on its understanding of a standard which, even if properly understood, does not entitle an alien to withholding of deportation under § 243(h). Pp. 467 U. S. 421-430.678 F.2d 401, reversed and remanded.STEVENS, J., delivered the opinion for a unanimous Court. Page 467 U. S. 409

1966_98

MR. JUSTICE CLARK delivered the opinion of the Court.We are here concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction after that attorney has conscientiously determined that there is no merit to the indigent's appeal.After he was convicted of the felony of possession of marijuana, petitioner sought to appeal and moved that the California District Court of Appeal appoint counsel for him. Such motion was granted; however, after a study of the record and consultation with petitioner, the appointed counsel concluded that there was no merit to the appeal. He so advised the court by letter, and, at the same time, informed the court that petitioner wished Page 386 U. S. 740 to file a brief in his own behalf. At this juncture, petitioner requested the appointment of another attorney. This request was denied, and petitioner proceeded to file his own brief pro se. The State responded, and petitioner filed a reply brief. On January 9, 1959, the District Court of Appeal unanimously affirmed the conviction, People v. Anders, 167 Cal. App. 2d 65, 333 P.2d 854.On January 21, 1965, petitioner filed an application for a writ of habeas corpus in the District Court of Appeal in which he sought to have his case reopened. In that application, he raised the issue of deprivation of the right to counsel in his original appeal because of the court's refusal to appoint counsel at the appellate stage of the proceedings. [Footnote 1] The court denied the application on the same day, in a brief unreported memorandum opinion. The court stated that it "ha[d] again reviewed the record, and [had] determined the appeal [to be] without merit." The court also stated that "the procedure prescribed by In re Nash, 61 A.C. 538, was followed in this case. . . ." [Footnote 2] On June 25, 1965, petitioner submitted a petition for a writ of habeas Page 386 U. S. 741 corpus to the Supreme Court of California, and the petition was denied without opinion by that court on July 14, 1965. Among other trial errors, petitioner claimed that both the judge and the prosecutor had commented on his failure to testify, contrary to the holding of this Court in Griffin v. California, 380 U. S. 609 (1965). We have concluded that California's action does not comport with fair procedure, and lacks that equality that is required by the Fourteenth Amendment.IFor a decade or more, a continuing line of cases has reached this Court concerning discrimination against the indigent defendant on his first appeal. Beginning with Griffin v. Illinois, 351 U. S. 12 (1956), where it was held that equal justice was not afforded an indigent appellant where the nature of the review "depends on the amount of money he has," at 351 U. S. 19, and continuing through Douglas v. California, 372 U. S. 353 (1963), this Court has consistently held invalid those procedures"where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself."At 372 U. S. 358. Indeed, in the federal courts, the advice of counsel has long been required whenever a defendant challenges a certification that an appeal is not taken in good faith, Johnson v. United States, 352 U. S. 565 (1957), and such representation must be in the role of an advocate, Ellis v. United States, 356 U. S. 674, 356 U. S. 675 (1958), rather than as amicus curiae. In Ellis, supra, we concluded:"If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court Page 386 U. S. 742 is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed, and leave to appeal may be denied."At 356 U. S. 675. In Gideon v. Wainwright, 372 U. S. 335 (1963), the Sixth Amendment's requirement that "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence" was made obligatory on the States by the Fourteenth Amendment, the Court holding that,"in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him."At 372 U. S. 344. We continue to adhere to these principles.IIIn petitioner's case, his appointed counsel wrote the District Court of Appeal, stating:"I will not file a brief on appeal, as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders, and have explained my views and opinions to him. . . . [H]e wishes to file a brief in this matter on his own behalf."The District Court of Appeal, after having examined the record, affirmed the conviction. We believe that counsel's bare conclusion, as evidenced by his letter, was not enough. It smacks of the treatment that Eskridge received, which this Court condemned, that permitted a trial judge to withhold a transcript if he found that a defendant "has been accorded a fair and impartial trial, and, in the Court's opinion, no grave or prejudicial errors occurred therein." Eskridge v. Washington State Board, 357 U. S. 214, 357 U. S. 215 (1958). Such a procedure, this Court said, "cannot be an adequate substitute for the right to full appellate review available to all defendants" Page 386 U. S. 743 who may not be able to afford such an expense. At 357 U. S. 216. And in still another case in which "a state officer outside the judicial system" was given the power to deprive an indigent of his appeal by refusing to order a transcript merely because he thought the "appeal would be unsuccessful," we reversed, finding that such a procedure did not meet constitutional standards. Lane v. Brown, 372 U. S. 477 (1963). Here, the court-appointed counsel had the transcript, but refused to proceed with the appeal because he found no merit in it. He filed a "no merit" letter with the District Court of Appeal, whereupon the court examined the record itself and affirmed the judgment. On a petition for a writ of habeas corpus some six years later, it found the appeal had no merit. It failed, however, to say whether it was frivolous or not, but, after consideration, simply found the petition to be "without merit." The Supreme Court, in dismissing this habeas corpus application, gave no reason at all for its decision, and so we do not know the basis for its action. We cannot say that there was a finding of frivolity by either of the California courts, or that counsel acted in any greater capacity than merely as amicus curiae, which was condemned in Ellis, supra. Hence, California's procedure did not furnish petitioner with counsel acting in the role of an advocate, nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity. The necessity for counsel so acting is highlighted by the possible disadvantage the petitioner suffered here. In his pro se brief, which was filed in 1959, he urged several trial errors, but failed to raise the point that both the judge and the prosecutor had commented to the jury regarding petitioner's failure to testify. In 1965, this Court, in Griffin v. California, supra, outlawed California's comment rule, as embodied in Art. I, § 13, of the California Constitution. Page 386 U. S. 744IIIThe constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The "no merit" letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. [Footnote 3] His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent, and time allowed him to raise any points that he chooses; the court -- not counsel -- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds, it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous), it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. Page 386 U. S. 745This requirement would not force appointed counsel to brief his case against his client, but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The "no merit" letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself, while the court has only the cold record, which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective, and had not handled the case with that diligence to which an indigent defendant is entitled. This procedure will assure penniless defendants the same rights and opportunities on appeal -- as nearly as is practicable -- as are enjoyed by those persons who are in a similar situation, but who are able to afford the retention of private counsel.The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtAnders v. California, 386 U.S. 738 (1967)Anders v. CaliforniaNo. 98Argued March 14, 1967Decided May 8, 1967386 U.S. 738SyllabusCounsel, appointed by a California appellate court on petitioner's motion to prosecute the appeal of his felony conviction, concluded after studying the record and consulting with petitioner that there was no merit to the appeal, and so advised the court. He also advised it that petitioner wished to file a brief in his behalf. Petitioner's request for another attorney was denied. He then filed a brief pro se and a reply brief to the State's response. The appellate court, after examining the record, affirmed the conviction. Six years later, petitioner, seeking to reopen his case on the ground that he had been deprived of the right to counsel on his appeal, filed in the appellate court an application for habeas corpus, which the court denied the same day. The court stated that it had again reviewed the record and determined the appeal to be "without merit" (but failed to say whether it was frivolous or not), and that the procedure here followed the California system for handling indigents' appeals approved by that State's Supreme Court as meeting the requirements of Douglas v. California, 372 U. S. 353. Claiming, inter alia, that the judge and prosecutor had erroneously commented on his failure to testify, petitioner filed with the State Supreme Court an application for habeas corpus, which that court denied without giving any reason for its decision.Held: The failure to grant this indigent petitioner seeking initial review of his conviction the services of an advocate, as contrasted with an amicus curiae, which would have been available to an appellant with financial means, violated petitioner's rights to fair procedure and equality under the Fourteenth Amendment. Pp. 386 U. S. 741-745.(a) This Court has consistently held invalid those procedures on the first appeal of a conviction where the rich man who appeals as of right enjoys the full benefits of counsel, while the indigent "is forced to shift for himself." Douglas v. California, supra, at 372 U. S. 358. P. 386 U. S. 741.(b) The Sixth Amendment's requirements for the right to counsel are made obligatory upon the States by the Fourteenth Amendment. Gideon v. Wainwright, 372 U. S. 335. P. 386 U. S. 742. Page 386 U. S. 739(c) Counsel's bare no-merit conclusion was not an adequate substitute for petitioner's right to full appellate review. To satisfy the requirement of substantial equality and fair process, counsel must be an active advocate, not just an amicus curiae. Pp. 386 U. S. 742-743.(d) If counsel conscientiously decides that the appeal is wholly frivolous, he should so advise the court and request permission to withdraw, at the same time furnishing the court and the indigent with a brief of anything in the record arguably supporting the appeal. P. 386 U. S. 744.(e) If, after full review, the court finds any legal points arguable, it must appoint counsel to argue the appeal; otherwise, it may dismiss the appeal as far as federal requirements are concerned or decide the case on the merits if state law requires. P. 386 U. S. 744.Reversed and remanded.

1995_95-865

(e) Even if FIR REA were to qualify as a "public and general" act, the sovereign act doctrine cannot excuse the Government's breach here. Since the object of the doctrine is to place the Government as contractor on par with a private contractor in the same circumstances, Horowitz v. United States, supra, at 461, the Government, like any other defending party in a contract action, must show that passage of the statute rendering its performance impossible was an event contrary to the basic assumptions on which the parties agreed, and, ultimately, that the language or circumstances do not indicate that the Government should be liable in any case. The Government has not satisfied these conditions. There is no doubt that some changes in the regulatory structure governing thrift capital reserves were both foreseeable and likely when the parties contracted with the Government. In addition, any governmental contract that not only deals with regulatory change but allocates the risk of its occurring will, by definition, fail the further condition of a successful impossibility defense, for it will indeed indicate that the parties' agreement was not meant to be rendered nugatory by a change in the regulatory law. That the Bank Board and FSLIC could not themselves preclude Congress from changing the regulatory rules does not stand in the way of concluding that those agencies assumed the risk of such change, for determining the consequences of legal change was the point of the agreements. Pp. 904-910.JUSTICE SOUTER, joined by JUSTICE STEVENS and JUSTICE BREYER, concluded in Parts IV-A and IV-B that, since the Government should not be excused by legislation when the substantial effect of regulation was to help itself out of improvident agreements, it is impossible to attribute the exculpatory "public and general" character to FIRREA. Not only did that statute have the purpose of eliminating the very accounting "gimmicks" that acquiring thrifts had been promised, but also the congressional debates indicate Congress's expectation, which there is no reason to question, that FIR REA would have a substantial effect on the Government's contractual obligations. The evidence of Congress's intense concern with contracts like those at issue is not neutralized by the fact that FIRREA did not formally target particular transactions or by FIRREA's broad purpose to advance the general welfare. Pp. 896-903.JUSTICE SCALIA, joined by JUSTICE KENNEDY and JUSTICE THOMAS, agreed that the Government was contractually obligated to afford respondents favorable accounting treatment, and violated its obligations when it discontinued that treatment under FIR REA. The Government's sovereign defenses cannot be avoided by characterizing its obligations as not entailing a limitation on the exercise of sovereign power;842Syllabusthat approach, although adopted by the plurality, is novel and fails to acknowledge that virtually every contract regarding future conduct operates as an assumption of liability in the event of nonperformance. Accordingly, it is necessary to address the Government's various sovereign defenses, particularly its invocation of the "unmistakability" doctrine. That doctrine simply embodies the commonsense presumption that governments do not ordinarily agree to curtail their sovereign or legislative powers. Respondents have overcome that presumption here in establishing that the Government promised, in unmistakable terms, to regulate them in a particular fashion, into the future. The Government's remaining arguments are readily rejected. The "reserved powers" doctrine cannot defeat a claim to recover damages for breach of contract where subsequent legislation has sought to minimize monetary risks assumed by the Government. The "express delegation" doctrine is satisfied here by the statutes authorizing the relevant federal bank regulatory agencies to enter into the agreements at issue. Finally, the "sovereign acts" doctrine adds little, if anything, to the "unmistakability" doctrine, and cannot be relied upon where the Government has attempted to abrogate the essential bargain of the contract. pp. 919-924.SOUTER, J., announced the judgment of the Court and delivered an opinion, in which STEVENS and BREYER, JJ., joined, and in which O'CONNOR, J., joined except as to Parts IV-A and IV-B. BREYER, J., filed a concurring opinion, post, p. 910. SCALIA, J., filed an opinion concurring in the judgment, in which KENNEDY and THOMAS, JJ., joined, post, p. 919. REHNQUIST, C. J., filed a dissenting opinion, in which GINSBURG, J., joined as to Parts I, III, and IV, post, p. 924.Deputy Solicitor General Bender argued the cause for the United States. With him on the briefs were Solicitor General Days, Assistant Attorney General Hunger, James A. Feldman, Douglas Letter, and Jacob M. Lewis.Joe G. Hollingsworth argued the cause for respondent Glendale Federal Bank, FSB. With him on the brief were Jerry Stouck, Donald W Fowler, Catherine R. Baumer, Carter G. Phillips, Richard D. Bernstein, Theodore R. Posner, and Jesse H. Choper. Charles J. Cooper argued the cause for respondents Winstar Corp. et al. With him on the brief843were Michael A. Carvin, Robert J. Cynkar, and Vincent J. Colatriano. *JUSTICE SOUTER announced the judgment of the Court and delivered an opinion, in which JUSTICE STEVENS and JUSTICE BREYER join, and in which JUSTICE O'CONNOR joins except as to Parts IV-A and IV-B.The issue in this case is the enforceability of contracts between the Government and participants in a regulated industry, to accord them particular regulatory treatment in exchange for their assumption of liabilities that threatened to produce claims against the Government as insurer. Although Congress subsequently changed the relevant law, and thereby barred the Government from specifically honoring its agreements, we hold that the terms assigning the risk of regulatory change to the Government are enforceable, and that the Government is therefore liable in damages for breach.*Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by Herbert L. Fenster, Tami Lyn Azorsky, and Robin S. Conrad; for the Aerospace Industries Association of America, Inc., et al. by Clarence T. Kipps, Jr., Alan I. Horowitz, and Mac S. Dunaway; for AmBase Corp. et al. by Laurence H. Tribe, Brian Stuart Koukoutchos, Harvey Silverglate, and John C. Millian; for the American Association of State Colleges and Universities et al. by Joseph N. Onek, Kent R. Morrison, Robert P. Charrow, Sheldon Elliot Steinbach, and J. Mark Waxman; for Coast Federal Bank, FSB, by Daniel J. Goldberg and Matthew G. Ash; for Dollar Bank, FSB, by Paul Blankenstein, John K. Bush, and Robert T. Messner; for the Franklin Financial Group, Inc., et al. by Thomas M. Buchanan, Paul M. Fish, Ronald R. Glancz, John F. Cooney, Don S. Willner, and Jerrold J. Ganzfried; for Keystone Holdings, Inc., et al. by Melvin C. Garbow and Edward H. Sisson; for Long Island Savings Bank, FSB, by Russell E. Brooks and Fred W Reinke; for Trinity Ventures, Ltd., et al. by John C. Millian, John K. Bush, and Wesley G. Howell, Jr.; for the Watts Health Foundation, Inc., et al. by Peter J. Gregora and Kenneth R. Heitz; and for the Western Federal Savings and Loan Association et al. by Dennis A. Winston.844Opinion of SOUTER, J.IWe said in Fahey v. Mallonee, 332 U. S. 245, 250 (1947), that "[b]anking is one of the longest regulated and most closely supervised of public callings." That is particularly true of the savings and loan, or "thrift," industry, which has been described as "a federally-conceived and assisted system to provide citizens with affordable housing funds." H. R. Rep. No. 101-54, pt. 1, p. 292 (1989) (House Report). Because the contracts at issue in today's case arise out of the National Government's efforts over the last decade and a half to preserve that system from collapse, we begin with an overview of the history of federal savings and loan regulation.AThe modern savings and loan industry traces its origins to the Great Depression, which brought default on 40 percent of the Nation's $20 billion in home mortgages and the failure of some 1,700 of the Nation's approximately 12,000 savings institutions. Id., at 292-293. In the course of the debacle, Congress passed three statutes meant to stabilize the thrift industry. The Federal Home Loan Bank Act created the Federal Home Loan Bank Board (Bank Board), which was authorized to channel funds to thrifts for loans on houses and for preventing foreclosures on them. Ch. 522, 47 Stat. 725 (1932) (codified, as amended, at 12 U. S. C. §§ 1421-1449 (1988 ed.)); see also House Report, at 292. Next, the Home Owners' Loan Act of 1933 authorized the Bank Board to charter and regulate federal savings and loan associations. Ch. 64, 48 Stat. 128 (1933) (codified, as amended, at 12 U. S. C. §§ 1461-1468 (1988 ed.)). Finally, the National Housing Act created the Federal Savings and Loan Insurance Corporation (FSLIC), under the Bank Board's authority, with responsibility to insure thrift deposits and regulate all federally insured thrifts. Ch. 847, 48 Stat. 1246 (1934) (codified, as amended, at 12 U. S. C. §§ 1701-1750g (1988 ed.)).845The resulting regulatory regime worked reasonably well until the combination of high interest rates and inflation in the late 1970's and early 1980's brought about a second crisis in the thrift industry. Many thrifts found themselves holding long-term, fixed-rate mortgages created when interest rates were low; when market rates rose, those institutions had to raise the rates they paid to depositors in order to attract funds. See House Report, at 294-295. When the costs of short-term deposits overtook the revenues from long-term mortgages, some 435 thrifts failed between 1981 and 1983. Id., at 296; see also General Accounting Office, Thrift Industry: Forbearance for Troubled Institutions 19821986, p. 9 (May 1987) (GAO, Forbearance for Troubled Institutions) (describing the origins of the crisis).The first federal response to the rising tide of thrift failures was "extensive deregulation," including "a rapid expansion in the scope of permissible thrift investment powers and a similar expansion in a thrift's ability to compete for funds with other financial services providers." House Report, at 291; see also id., at 295-297; Breeden, Thumbs on the Scale:The Role that Accounting Practices Played in the Savings and Loan Crisis, 59 Ford. L. Rev. S71, S72-S74 (1991) (describing legislation permitting nonresidential real estate lending by thrifts and deregulating interest rates paid to thrift depositors).l Along with this deregulation came moves to weaken the requirement that thrifts maintain adequate capital reserves as a cushion against losses, see 12 CFR § 563.13 (1981), a requirement that one commentator described as "the most powerful source of discipline for financial institutions." Breeden, supra, at S75. The result was a drop in capital reserves required by the Bank Board from five to1 The easing of federal regulatory requirements was accompanied by similar initiatives on the state level, especially in California, Florida, and Texas. The impact of these changes was substantial, since as of 1980 over 50 percent of federally insured thrifts were chartered by the States. See House Report, at 297.846Opinion of SOUTER, J.four percent of assets in November 1980, see 45 Fed. Reg. 76111, and to three percent in January 1982, see 47 Fed. Reg. 3543; at the same time, the Board developed new "regulatory accounting principles" (RAP) that in many instances replaced generally accepted accounting principles (GAAP) for purposes of determining compliance with its capital requirements.2 According to the House Banking Committee, "[t]he use of various accounting gimmicks and reduced capital standards masked the worsening financial condition of the industry, and the FSLIC, and enabled many weak institutions to continue operating with an increasingly inadequate cushion to absorb future losses." House Report, at 298. The reductions in required capital reserves, moreover, allowed thrifts to grow explosively without increasing their capital base, at the same time deregulation let them expand into new (and often riskier) fields of investment. See Note, Causes of the Savings and Loan Debacle, 59 Ford. L. Rev. S301, S311 (1991); Breeden, supra, at S74-S75.While the regulators tried to mitigate the squeeze on the thrift industry generally through deregulation, the multitude of already-failed savings and loans confronted FSLIC with deposit insurance liabilities that threatened to exhaust its insurance fund. See Olympic Federal Savings and Loan Assn. v. Director, Office of Thrift Supervision, 732 F. Supp.2 "Regulatory and statutory accounting gimmicks included permitting thrifts to defer losses from the sale of assets with below market yields; permitting the use of income capital certificates, authorized by Congress, in place of real capital; letting qualifying mutual capital certificates be included as RAP capital; allowing FSLIC members to exclude from liabilities in computing net worth, certain contra-asset accounts, including loans in process, unearned discounts, and deferred fees and credits; and permitting the inclusion of net worth certificates, qualifying subordinated debentures and appraised equity capital as RAP net worth." House Report, at 298. The result of these practices was that "[b]y 1984, the difference between RAP and GAAP net worth at S&Us stood at $9 billion," which meant "that the industry's capital position, or ... its cushion to absorb losses was overstated by $9 billion." Ibid.8471183, 1185 (DC 1990). According to the General Accounting Office, FSLIC's total reserves declined from $6.46 billion in 1980 to $4.55 billion in 1985, GAO, Forbearance for Troubled Institutions 12, when the Bank Board estimated that it would take $15.8 billion to close all institutions deemed insolvent under GAAP. General Accounting Office, Troubled Financial Institutions: Solutions to the Thrift Industry Problem 108 (Feb. 1989) (GAO, Solutions to the Thrift Industry Problem). By 1988, the year of the last transaction involved in this case, FSLIC was itself insolvent by over $50 billion. House Report, at 304. And by early 1989, the GAO estimated that $85 billion would be needed to cover FSLIC's responsibilities and put it back on the road to fiscal health. GAO, Solutions to the Thrift Industry Problem 43. In the end, we now know, the cost was much more even than that. See, e. g., Horowitz, The Continuing Thrift Bailout, Investor's Business Daily, Feb. 1, 1996, p. A1 (reporting an estimated $140 billion total public cost of the savings and loan crisis through 1995).Realizing that FSLIC lacked the funds to liquidate all of the failing thrifts, the Bank Board chose to avoid the insurance liability by encouraging healthy thrifts and outside investors to take over ailing institutions in a series of "supervisory mergers." See GAO, Solutions to the Thrift Industry Problem 52; L. White, The S&L Debacle: Public Policy Lessons for Bank and Thrift Regulation 157 (1991) (White).33 See also White 157 (noting that "[t]he FSLIC developed lists of prospective acquirers, made presentations, held seminars, and generally tried to promote the acquisitions of these insolvents"); Grant, The FSLIC:Protection through Professionalism, 14 Federal Home Loan Bank Board Journal 9-10 (Feb. 1981) (describing the pros and cons of various defaultprevention techniques from FSLIC's perspective). Over 300 such mergers occurred between 1980 and 1986, as opposed to only 48 liquidations. GAO, Forbearance for Troubled Institutions 13. There is disagreement as to whether the Government actually saved money by pursuing this course rather than simply liquidating the insolvent thrifts. Compare, e. g., Brief for Franklin Financial Group, Inc., et al. as Amici Curiae 7,848Opinion of SOUTER, J.Such transactions, in which the acquiring parties assumed the obligations of thrifts with liabilities that far outstripped their assets, were not intrinsically attractive to healthy institutions; nor did FSLIC have sufficient cash to promote such acquisitions through direct subsidies alone, although cash contributions from FSLIC were often part of a transaction. See M. Lowy, High Rollers: Inside the Savings and Loan Debacle 37 (1991) (Lowy). Instead, the principal inducement for these supervisory mergers was an understanding that the acquisitions would be subject to a particular accounting treatment that would help the acquiring institutions meet their reserve capital requirements imposed by federal regulations. See Investigation of Lincoln Savings & Loan Assn.: Hearing Before the House Committee on Banking, Finance, and Urban Affairs, 101st Cong., 1st Sess., pt. 5, p. 447 (1989) (testimony of M. Danny Wall, Director, Office of Thrift Supervision) (noting that acquirers of failing thrifts were allowed to use certain accounting methods "in lieu of [direct] federal financial assistance").BUnder GAAP there are circumstances in which a business combination may be dealt with by the "purchase method" of accounting. See generally R. Kay & D. Searfoss, Handbook of Accounting and Auditing 23-21 to 23-40 (2d ed. 1989) (describing the purchase method); Accounting Principles Board Opinion No. 16 (1970) (establishing rules as to what method must be applied to particular transactions). The critical aspect of that method for our purposes is that it permits the acquiring entity to designate the excess of the purchase pricequoting remarks by H. Brent Beasley, Director of FSLIC, before the California Savings and Loan League Management Conference (Sept. 9, 1982) (concluding that FSLIC-assisted mergers have '''[h]istorically ... cost about 70% of [the] cost of liquidation' "), with GAO, Solutions to the Thrift Industry Problem 52 ("FSLIC's cost analyses may ... understat[e] the cost of mergers to the government").849over the fair value of all identifiable assets acquired as an intangible asset called "goodwill." Id.,' 11, p. 284; Kay & Searfoss, supra, at 23-38.4 In the ordinary case, the recognition of goodwill as an asset makes sense: a rational purchaser in a free market, after all, would not pay a price for a business in excess of the value of that business's assets unless there actually were some intangible "going concern" value that made up the difference. See Lowy 39.5 For that reason, the purchase method is frequently used to account for acquisitions, see A. Phillips, J. Butler, G. Thompson, & R. Whitman, Basic Accounting for Lawyers 121 (4th ed. 1988), and GAAP expressly contemplated its application to at least some transactions involving savings and loans. See Financial Accounting Standards Board Interpretation No.9 (Feb. 1976). Goodwill recognized under the purchase method as the result of an FSLIC-sponsored supervisory merger was generally referred to as "supervisory goodwill."Recognition of goodwill under the purchase method was essential to supervisory merger transactions of the type at issue in this case. Because FSLIC had insufficient funds to4 See also Accounting Principles Board Opinion No. 17, , 26, p. 339 (1970) (providing that "[i]ntangible assets acquired ... as part of an acquired company should ... be recorded at cost," which for unidentifiable intangible assets like goodwill is "measured by the difference between the cost of the ... enterprise acquired and the sum of the assigned costs of individual tangible and identifiable intangible assets acquired less liabilities assumed").5 See Newark Morning Ledger Co. v. United States, 507 U. S. 546, 556 (1993) (describing "goodwill" as "the total of all the imponderable qualities that attract customers to the business"). Justice Story defined "goodwill" somewhat more elaborately as "the advantage or benefit, which is acquired by an establishment, beyond the mere value of the capital, stock, funds, or property employed therein, in consequence of the general public patronage and encouragement, which it receives from constant or habitual customers, on account of its local position, or common celebrity, or reputation for skill or affluence, or punctuality, or from other accidental circumstances, or necessities, or even from ancient partialities, or prejudices." J. Story, Law of Partnership § 99, p. 139 (1841).850Opinion of SOUTER, J.make up the difference between a failed thrift's liabilities and assets, the Bank Board had to offer a "cash substitute" to induce a healthy thrift to assume a failed thrift's obligations. Former Bank Board Chairman Richard Pratt put it this way in testifying before Congress:"The Bank Board ... did not have sufficient resources to close all insolvent institutions, [but] at the same time, it had to consolidate the industry, move weaker institutions into stronger hands, and do everything possible to minimize losses during the transition period. Goodwill was an indispensable tool in performing this task." Savings and Loan Policies in the Late 1970's and 1980's:Hearings before the House Committee on Banking, Finance, and Urban Affairs, 101st Cong., 2d Sess., Ser. No. 101-176, p. 227 (1990).6Supervisory goodwill was attractive to healthy thrifts for at least two reasons. First, thrift regulators let the acquiring institutions count supervisory goodwill toward their reserve requirements under 12 CFR § 563.13 (1981). This treatment was, of course, critical to make the transaction possible in the first place, because in most cases the institution resulting from the transaction would immediately have been insolvent under federal standards if goodwill had not counted toward regulatory net worth. From the acquiring6 See also 135 Congo Rec. 12061 (1989) (statement of Rep. Hyde) (observing that FSLIC used goodwill as "an inducement to the healthy savings and loans to merge with the sick ones"); Brief for Franklin Financial Group, Inc., et al. as Amici Curiae 9, quoting Deposition of Thurman Connell, former official at the Atlanta Federal Home Loan Bank, Joint App. in Charter Federal Savings Bank V. Office of Thrift Supervision, Nos. 91-2647, 91-2708 (CA4), p. 224 (recognizing that treating supervisory goodwill as regulatory capital was "'a very important aspect of [the acquiring thrifts'] willingness to enter into these agreements,'" and concluding that the regulators "'looked at [supervisory goodwill] as kind of the engine that made this transaction go. Because without it, there wouldn't have been any train pulling out of the station, so to speak' ").851thrift's perspective, however, the treatment of supervisory goodwill as regulatory capital was attractive because it inflated the institution's reserves, thereby allowing the thrift to leverage more loans (and, it hoped, make more profits). See White 84; cf. Breeden, 59 Ford. L. Rev., at S75-S76 (explaining how loosening reserve requirements permits asset expansion).A second and more complicated incentive arose from the decision by regulators to let acquiring institutions amortize the goodwill asset over long periods, up to the 40-year maximum permitted by GAAP, see Accounting Principles Board Opinion No. 17, , 29, p. 340 (1970). Amortization recognizes that intangible assets such as goodwill are useful for just so long; accordingly, a business must "write down" the value of the asset each year to reflect its waning worth. See Kay & Searfoss, Handbook of Accounting and Auditing, at 15-36 to 15-37; Accounting Principles Board Opinion No. 17, supra, , 27, at 339-340.7 The amount of the write down is reflected on the business's income statement each year as an operating expense. See generally E. Faris, Accounting and Law in a Nutshell § 12.2(q) (1984) (describing amortization of goodwill). At the same time that it amortizes its goodwill asset,7 In this context, "amortization" of an intangible asset is equivalent to depreciation of tangible assets. See Newark Morning Ledger Co. v. United States, supra, at 571, n. 1 (SOUTER, J., dissenting); Gregorcich, Amortization of Intangibles: A Reassessment of the Tax Treatment of Purchased Goodwill, 28 Tax Lawyer 251, 253 (1975). Both the majority opinion and dissent in Newark Morning Ledger agreed that "goodwill" was not subject to depreciation (or amortization) for federal tax purposes, see 507 U. S., at 565, n. 13; id., at 573 (SOUTER, J., dissenting), although we disagreed as to whether one could accurately estimate the useful life of certain elements of goodwill and, if so, permit depreciation of those elements under Internal Revenue Service regulations. Id., at 566-567; id., at 576-577 (SOUTER, J., dissenting). Neither of the Newark Morning Ledger opinions, however, denied the power of another federal agency, such as the Bank Board or FSLIC, to decide that goodwill is of transitory value and impose a particular amortization period to be used for its own regulatory purposes.852Opinion of SOUTER, J.however, an acquiring thrift must also account for changes in the value of its loans, which are its principal assets. The loans acquired as assets of the failed thrift in a supervisory merger were generally worth less than their face value, typically because they were issued at interest rates below the market rate at the time of the acquisition. See Black, Ending Our Forebearers' Forbearances: FIRREA and Supervisory Goodwill, 2 Stan. L. & Policy Rev. 102, 104-105 (1990). This differential or "discount," J. Rosenberg, Dictionary of Banking and Financial Services 233 (2d ed. 1985), appears on the balance sheet as a "contra-asset" account, or a deduction from the loan's face value to reflect market valuation of the asset, R. Estes, Dictionary of Accounting 29 (1981). Because loans are ultimately repaid at face value, the magnitude of the discount declines over time as redemption approaches; this process, technically called "accretion of discount," is reflected on a thrift's income statement as a series of capital gains. See Rosenberg, supra, at 9; Estes, supra, at 39-40.The advantage in all this to an acquiring thrift depends upon the fact that accretion of discount is the mirror image of amortization of goodwill. In the typical case, a failed thrift's primary assets were long-term mortgage loans that earned low rates of interest and therefore had declined in value to the point that the thrift's assets no longer exceeded its liabilities to depositors. In such a case, the disparity between assets and liabilities from which the accounting goodwill was derived was virtually equal to the value of the discount from face value of the thrift's outstanding loans. See Black, 2 Stan. L. & Policy Rev., at 104-105. Thrift regulators, however, typically agreed to supervisory merger terms that allowed acquiring thrifts to accrete the discount over the average life of the loans (approximately seven years), see id., at 105, while permitting amortization of the goodwill asset over a much longer period. Given that goodwill and discount were substantially equal in overall values, the more rapid853accrual of capital gain from accretion resulted in a net paper profit over the initial years following the acquisition. See ibid.; Lowy 39-40.8 The difference between amortization and accretion schedules thus allowed acquiring thrifts to seem more profitable than they in fact were.Some transactions included yet a further inducement, described as a "capital credit." Such credits arose when FSLIC itself contributed cash to further a supervisory merger and permitted the acquiring institution to count the FSLIC contribution as a permanent credit to regulatory capital. By failing to require the thrift to subtract this FSLIC contribution from the amount of supervisory goodwill generated by the merger, regulators effectively permitted double counting of the cash as both a tangible and an intangible asset. See, e. g., Transohio Savings Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 604 (CADC 1992). Capital credits thus inflated the acquiring thrift's regulatory capital and permitted leveraging of more and more loans.As we describe in more detail below, the accounting treatment to be accorded supervisory goodwill and capital credits was the subject of express arrangements between the regulators and the acquiring institutions. While the extent to which these arrangements constituted a departure from prior norms is less clear, an acquiring institution would rea-8See also National Commission on Financial Institution Reform, Recovery and Enforcement, Origins and Causes of the S&L Debacle: A Blueprint for Reform, A Report to the President and Congress of the United States 38-39 (July 1993) (explaining the advantages of different amortization and accretion schedules to an acquiring thrift). The downside of a faster accretion schedule, of course, was that it exhausted the discount long before the goodwill asset had been fully amortized. As a result, this treatment resulted in a net drag on earnings over the medium and long terms. See Lowy 40-41; Black, Ending Our Forebearers' Forbearances:FIRREA and Supervisory Goodwill, 2 Stan. L. & Policy Rev. 102, 104-105 (1990). Many thrift managers were apparently willing to take the shortterm gain, see Lowy 40-41, and others sought to stave off the inevitable losses by pursuing further acquisitions, see Black, supra, at 105.854Opinion of SOUTER, J.sonably have wanted to bargain for such treatment. Although GAAP demonstrably permitted the use of the purchase method in acquiring a thrift suffering no distress, the relevant thrift regulations did not explicitly state that intangible goodwill assets created by that method could be counted toward regulatory capital. See 12 CFR § 563.13 (a)(3) (1981) (permitting thrifts to count as reserves any "items listed in the definition of net worth"); § 561.13(a) (defining "net worth" as "the sum of all reserve accounts ... , retained earnings, permanent stock, mutual capital certificates ... , and any other non-withdrawable accounts of an insured institution").9 Indeed, the rationale for recognizing goodwill stands on its head in a supervisory merger: ordinarily, goodwill is recognized as valuable because a rational purchaser would not pay more than assets are worth; here, however, the purchase is rational only because of the accounting treatment for the shortfall. See Black, supra, at 104 ("GAAP's treatment of goodwill ... assumes that buyers do not overpay when they purchase an S&U'). In the end, of course, such reasoning circumvented the whole purpose of the reserve requirements, which was to protect depositors and the deposit insurance fund. As some in Congress later recognized, "[g]oodwill is not cash. It is a concept, and a shadowy one at that. When the Federal Government liquidates a failed thrift, goodwill is simply no good. It is valueless. That means, quite simply, that the taxpayer picks up the tab for the shortfall." 135 Congo Rec. 11795 (1989) (remarks of Rep. Barnard); see also White 84 (acknowledging9The 1981 regulations quoted above were in effect at the time of the Glendale transaction. The 1984 regulations relevant to the Winstar transaction were identical in all material respects, and although substantial changes had been introduced into § 563.13 by the time of the Statesman merger in 1988, they do not appear to resolve the basic ambiguity as to whether goodwill could qualify as regulatory capital. See 12 CFR § 563.13 (1988). Section 563.13 has since been superseded by the Financial Institutions Reform, Recovery, and Enforcement Act.855that in some instances supervisory goodwill "involved the creation of an asset that did not have real value as protection for the FSLIC"). To those with the basic foresight to appreciate all this, then, it was not obvious that regulators would accept purchase accounting in determining compliance with regulatory criteria, and it was clearly prudent to get agreement on the matter.The advantageous treatment of amortization schedules and capital credits in supervisory mergers amounted to more clear-cut departures from GAAP and, hence, subjects worthy of agreement by those banking on such treatment. In 1983, the Financial Accounting Standards Board (the font of GAAP) promulgated Statement of Financial Accounting Standards No. 72 (SFAS 72), which applied specifically to the acquisition of a savings and loan association. SFAS 72 provided that "[i]f, and to the extent that, the fair value of liabilities assumed exceeds the fair value of identifiable assets acquired in the acquisition of a banking or thrift institution, the unidentifiable intangible asset recognized generally shall be amortized to expense by the interest method over a period no longer than the discount on the long-term interest-bearing assets acquired is to be recognized as interest income." Accounting Standards, Original Pronouncements (July 1973-June 1, 1989), p. 725. In other words, SF AS 72 eliminated any doubt that the differential amortization periods on which acquiring thrifts relied to produce paper profits in supervisory mergers were inconsistent with GAAP. SFAS 72 also barred double counting of capital credits by requiring that financial assistance from regulatory authorities must be deducted from the cost of the acquisition before the amount of goodwill is determined. SFAS 72, , 9.10 Thrift acquirers relying on such credits, then, had10 Although the Glendale transaction in this case occurred before the promulgation of SF AS 72 in 1983, the proper amortization period for goodwill under GAAP was uncertain prior to that time. According to one observer, "when the accounting profession designed the purchase account-856Opinion of SOUTER, J.every reason for concern as to the continued availability of the RAP in effect at the time of these transactions.CAlthough the results of the forbearance policy, including the departures from GAAP, appear to have been mixed, see GAO, Forbearance for Troubled Institutions 4, it is relatively clear that the overall regulatory response of the early and mid-1980's was unsuccessful in resolving the crisis in the thrift industry. See, e. g., Transohio Savings Bank, 967 F. 2d, at 602 (concluding that regulatory measures "actually aggravat[ed] the decline"). As a result, Congress enacted the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103 Stat. 183, with the objects of preventing the collapse of the industry, attacking the root causes of the crisis, and restoring public confidence.FIRREA made enormous changes in the structure of federal thrift regulation by (1) abolishing FSLIC and transferring its functions to other agencies; (2) creating a new thrift deposit insurance fund under the Federal Deposit Insurance Corporation; (3) replacing the Bank Board with the Office of Thrift Supervision (OTS), a Treasury Department office with responsibility for the regulation of all federally insured savings associations; and (4) establishing the Resolution Trust Corporation to liquidate or otherwise dispose of certain closed thrifts and their assets. See note following 12 U. S. C. § 1437, §§ 1441a, 1821. More importantly for the present case, FIRREA also obligated OTS to "prescribe and maintain uniformly applicable capital standards for savings associations" in accord with strict statutory re-ing rules in the early 1970s, they didn't anticipate the case of insolvent thrift institutions .... The rules for that situation were simply unclear until September 1982," when the SFAS 72 rules were first aired. Lowy 39-40.857quirements. § 1464(t)(1)(A)Y In particular, the statute required thrifts to "maintain core capital in an amount not less than 3 percent of the savings association's total assets," § 1464(t)(2)(A), and defined "core capital" to exclude "unidentifiable intangible assets," § 1464(t)(9)(A), such as goodwill. Although the reform provided a "transition rule" permitting thrifts to count "qualifying supervisory goodwill" toward half the core capital requirement, this allowance was phased out by 1995. § 1464(t)(3)(A). According to the House Report, these tougher capital requirements reflected a congressional judgment that "[t]o a considerable extent, the size of the thrift crisis resulted from the utilization of capital gimmicks that masked the inadequate capitalization of thrifts." House Report, at 310.The impact of FIR REA's new capital requirements upon institutions that had acquired failed thrifts in exchange for supervisory goodwill was swift and severe. OTS promptly issued regulations implementing the new capital standards along with a bulletin noting that FIRREA "eliminates [capital and accounting] forbearances" previously granted to certain thrifts. Office of Thrift Supervision, Capital Adequacy:Guidance on the Status of Capital and Accounting Forbearances and Capital Instruments held by a Deposit Insurance Fund, Thrift Bulletin No. 38-2, Jan. 9, 1990. OTS accordingly directed that "[a]ll savings associations presently operating with these forbearances ... should eliminate them in determining whether or not they comply with the new minimum regulatory capital standards." Ibid. Despite the statute's limited exception intended to moderate transitional11 See 135 Congo Rec. 18863 (1989) (remarks of Sen. Riegle) (emphasizing that these capital requirements were at the "heart" of the legislative reform); id., at 18860 (remarks of Sen. Chafee) (describing capital standards as FIRREA's "strongest and most critical requirement" and "the backbone of the legislation"); id., at 18853 (remarks of Sen. Dole) (describing the "[t]ough new capital standards [as] perhaps the most important provisions in this bill").858Opinion of SOUTER, J.pains, many institutions immediately fell out of compliance with regulatory capital requirements, making them subject to seizure by thrift regulators. See Black, 2 Stan. L. & Policy Rev., at 107 ("FIRREA's new capital mandates have caused over 500 S&Ls ... to report that they have failed one or more of the three capital requirements").DThis case is about the impact of FIRREA's tightened capital requirements on three thrift institutions created by way of supervisory mergers. Respondents Glendale Federal Bank, FSB, Winstar Corporation, and The Statesman Group, Inc., acquired failed thrifts in 1981, 1984, and 1988, respectively. After the passage of FIRREA, federal regulators seized and liquidated the Winstar and Statesman thrifts for failure to meet the new capital requirements. Although the Glendale thrift also fell out of regulatory capital compliance as a result of the new rules, it managed to avoid seizure through a massive private recapitalization. Believing that the Bank Board and FSLIC had promised them that the supervisory goodwill created in their merger transactions could be counted toward regulatory capital requirements, respondents each filed suit against the United States in the Court of Federal Claims, seeking monetary damages on both contractual and constitutional theories. That court granted respondents' motions for partial summary judgment on contract liability, finding in each case that the Government had breached contractual obligations to permit respondents to count supervisory goodwill and capital credits toward their regulatory capital requirements. See Winstar Corp. v. United States, 21 Cl. Ct. 112 (1990) (Winstar I) (finding an implied-in-fact contract but requesting further briefing on contract issues); 25 Cl. Ct. 541 (1992) (Winstar II) (finding contract breached and entering summary judgment on liability); Statesman Savings Holding Corp. v. United States, 26 Cl. Ct. 904 (1992) (granting summary judgment on liability859to Statesman and Glendale). In so holding, the Court of Federal Claims rejected two central defenses asserted by the Government: that the Government could not be held to a promise to refrain from exercising its regulatory authority in the future unless that promise was unmistakably clear in the contract, Winstar I, supra, at 116; Winstar II, supra, at 544-549; Statesman, supra, at 919-920, and that the Government's alteration of the capital reserve requirements in FIRREA was a sovereign act that could not trigger contractualliability, Winstar II, supra, at 550-553; Statesman, supra, at 915-916. The Court of Federal Claims consolidated the three cases and certified its decisions for interlocutory appeal.A divided panel of the Federal Circuit reversed, holding that the parties did not allocate to the Government, in an unmistakably clear manner, the risk of a subsequent change in the regulatory capital requirements. Winstar Corp. v. United States, 994 F.2d 797, 811-813 (1993). The full court, however, vacated this decision and agreed to rehear the case en bane. After rebriefing and reargument, the en bane court reversed the panel decision and affirmed the Court of Federal Claims' rulings on liability. Winstar Corp. v. United States, 64 F.3d 1531 (1995). The Federal Circuit found that FSLIC had made express contracts with respondents, including a promise that supervisory goodwill and capital credits could be counted toward satisfaction of the regulatory capital requirements. Id., at 1540, 1542-1543. The court rejected the Government's unmistakability argument, agreeing with the Court of Federal Claims that that doctrine had no application in a suit for money damages. Id., at 1545-1548. Finally, the en bane majority found that FIRREA's new capital requirements "single[d] out supervisory goodwill for special treatment" and therefore could not be said to be a "public" and "general act" within the meaning of the sovereign acts doctrine. Id., at 1548-1551. Judge Nies dissented, essentially repeating the arguments in her860Opinion of SOUTER, J.prior opinion for the panel majority, id., at 1551-1552, and Judge Lourie also dissented on the ground that FIRREA was a public and general act, id., at 1552-1553. We granted certiorari, 516 U. S. 1087 (1996), and now affirm.IIWe took this case to consider the extent to which special rules, not generally applicable to private contracts, govern enforcement of the governmental contracts at issue here. We decide whether the Government may assert four special defenses to respondents' claims for breach: the canon of contract construction that surrenders of sovereign authority must appear in unmistakable terms, Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U. S. 41, 52 (1986); the rule that an agent's authority to make such surrenders must be delegated in express terms, Home Telephone & Telegraph Co. v. Los Angeles, 211 U. S. 265 (1908); the doctrine that a government may not, in any event, contract to surrender certain reserved powers, Stone v. Mississippi, 101 U. S. 814 (1880); and, finally, the principle that a Government's sovereign acts do not give rise to a claim for breach of contract, Horowitz v. United States, 267 U. S. 458, 460 (1925).The anterior question whether there were contracts at all between the Government and respondents dealing with regulatory treatment of supervisory goodwill and capital credits, although briefed and argued by the parties in this Court, is not strictly before us. See Yee v. Escondido, 503 U. S. 519, 535 (1992) (noting that "we ordinarily do not consider questions outside those presented in the petition for certiorari"); this Court's Rule 14.1(a). And although we may review the Court of Federal Claims' grant of summary judgment de novo, Eastman Kodak Co. v. Image Technical Services, Inc., 504 U. S. 451, 465, n. 10 (1992), we are in no better position than the Federal Circuit and the Court of Federal Claims to evaluate the documentary records of861the transactions at issue. Our resolution of the legal issues raised by the petition for certiorari, however, does require some consideration of the nature of the underlying transactions.AThe Federal Circuit found that "[t]he three plaintiff thrifts negotiated contracts with the bank regulatory agencies that allowed them to include supervisory goodwill (and capital credits) as assets for regulatory capital purposes and to amortize that supervisory goodwill over extended periods of time." 64 F. 3d, at 1545. Although each of these transactions was fundamentally similar, the relevant circumstances and documents vary somewhat from case to case.1In September 1981, Glendale was approached about a possible merger by the First Federal Savings and Loan Association of Broward County, which then had liabilities exceeding the fair value of its assets by over $734 million. At the time, Glendale's accountants estimated that FSLIC would have needed approximately $1.8 billion to liquidate Broward, only about $1 billion of which could be recouped through the sale of Broward's assets. Glendale, on the other hand, was both profitable and well capitalized, with a net worth of $277 million.12 After some preliminary negotiations with the regulators, Glendale submitted a merger proposal to the Bank Board, which had to approve all mergers involving savings and loan associations, see 12 U. S. C. §§ 1467a(e)(1)(A) and (B); § 1817(j)(1); that proposal assumed the use of the purchase method of accounting to record supervisory goodwill arising from the transaction, with an amortization period of 40 years. The Bank Board ratified the merger, or "Supervisory Action Agreement" (SAA), on November 19, 1981.12 Glendale's premerger net worth amounted to 5.45 percent of its total assets, which comfortably exceeded the 4 percent capital/asset ratio, or net worth requirement, then in effect. See 12 CFR § 563.13(a)(2) (1981).862Opinion of SOUTER, J.The SAA itself said nothing about supervisory goodwill,but did contain the following integration clause:"This Agreement ... constitutes the entire agreement between the parties thereto and supersedes all prior agreements and understandings of the parties in connection herewith, excepting only the Agreement of Merger and any resolutions or letters issued contemporaneously herewith." App. 598-599.The SAA thereby incorporated Bank Board Resolution No. 81-710, by which the Board had ratified the SAA. That resolution referred to two additional documents: a letter to be furnished by Glendale's independent accountant identifying and supporting the use of any goodwill to be recorded on Glendale's books, as well as the resulting amortization periods; and "a stipulation that any goodwill arising from this transaction shall be determined and amortized in accordance with [Bank Board] Memorandum R-31b." Id., at 607. Memorandum R-31b, finally, permitted Glendale to use the purchase method of accounting and to recognize goodwill as an asset subject to amortization. See id., at 571-574.The Government does not seriously contest this evidence that the parties understood that goodwill arising from these transactions would be treated as satisfying regulatory requirements; it insists, however, that these documents simply reflect statements of then-current federal regulatory policy rather than contractual undertakings. Neither the Court of Federal Claims nor the Federal Circuit so read the record, however, and we agree with those courts that the Government's interpretation of the relevant documents is fundamentally implausible. The integration clause in Glendale's SAA with FSLIC, which is similar in all relevant respects to the analogous provisions in the Winstar and Statesman contracts, provides that the SAA supersedes "all prior agreements and understandings ... excepting only ... any resolutions or letters issued contemporaneously" by the Board, id.,863at 598-599; in other words, the SAA characterizes the Board's resolutions and letters not as statements of background rules, but as part of the "agreements and understandings" between the parties.To the extent that the integration clause leaves any ambiguity, the other courts that construed the documents found that the realities of the transaction favored reading those documents as contractual commitments, not mere statements of policy, see Restatement (Second) of Contracts § 202(1) (1981) ("Words and other conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties is ascertainable it is given great weight"), and we see no reason to disagree. As the Federal Circuit noted, "[i]t is not disputed that if supervisory goodwill had not been available for purposes of meeting regulatory capital requirements, the merged thrift would have been subject to regulatory noncompliance and penalties from the moment of its creation." 64 F. 3d, at 1542. Indeed, the assumption of Broward's liabilities would have rendered Glendale immediately insolvent by approximately $460 million, but for Glendale's right to count goodwill as regulatory capital. Although one can imagine cases in which the potential gain might induce a party to assume a substantial risk that the gain might be wiped out by a change in the law, it would have been irrational in this case for Glendale to stake its very existence upon continuation of current policies without seeking to embody those policies in some sort of contractual commitment. This conclusion is obvious from both the dollar amounts at stake and the regulators' proven propensity to make changes in the relevant requirements. See Brief for United States 26 ("[I]n light of the frequency with which federal capital requirements had changed in the past ... , it would have been unreasonable for Glendale, FSLIC, or the Bank Board to expect or rely upon the fact that those requirements would remain unchanged"); see also infra, at 909-910. Under the circumstances, we have no doubt that864Opinion of SOUTER, J.the parties intended to settle regulatory treatment of these transactions as a condition of their agreement. See, e. g., The Binghamton Bridge, 3 Wall. 51, 78 (1866) (refusing to construe charter in such a way that it would have been "madness" for private party to enter into it)P We accordingly have no reason to question the Court of Appeals's conclusion that "the government had an express contractual obligation to permit Glendale to count the supervisory goodwill generated as a result of its merger with Broward as a capital asset for regulatory capital purposes." 64 F. 3d, at 1540.2In 1983, FSLIC solicited bids for the acquisition of Windom Federal Savings and Loan Association, a Minnesotabased thrift in danger of failing. At that time, the estimated cost to the Government of liquidating Windom was approximately $12 million. A group of private investors formed Winstar Corporation for the purpose of acquiring Windom and submitted a merger plan to FSLIC; it called for capital contributions of $2.8 million from Winstar and $5.6 million from FSLIC, as well as for recognition of supervisory goodwill to be amortized over a period of 35 years.The Bank Board accepted the Winstar proposal and made an Assistance Agreement that incorporated, by an integration clause much like Glendale's, both the Board's resolution approving the merger and a forbearance letter issued on the date of the agreement. See App. 112. The forbearance letter provided that "[f]or purposes of reporting to the Board, the value of any intangible assets resulting from accounting for the merger in accordance with the purchase method may be amortized by [Winstar] over a period not to exceed 3513 See also Appleby v. Delaney, 271 U. S. 403, 413 (1926) ("It is not reasonable to suppose that the grantees would pay $12,000 ... and leave to the city authorities the absolute right completely to nullify the chief consideration for seeking this property, ... or that the parties then took that view of the transaction").865years by the straight-line method." Id., at 123. Moreover, the Assistance Agreement itself contained an "Accounting Principles" section with the following provisions:"Except as otherwise provided, any computations made for the purposes of this Agreement shall be governed by generally accepted accounting principles as applied on a going concern basis in the savings and loan industry, except that where such principles conflict with the terms of this Agreement, applicable regulations of the Bank Board or the [FSLICJ, or any resolution or action of the Bank Board approving or adopted concurrently with this Agreement, then this Agreement, such regulations, or such resolution or action shall govern .... If there is a conflict between such regulations and the Bank Board's resolution or action, the Bank Board's resolution or action shall govern. For purposes of this section, the governing regulations and the accounting principles shall be those in effect on the Effective Date or as subsequently clarified, interpreted, or amended by the Bank Board or the Financial Accounting Standards Board ("FASB"), respectively, or any successor organization to either." Id., at 108-109.The Government emphasizes the last sentence of this clause, which provides that the relevant accounting principles may be "subsequently clarified ... or amended," as barring any inference that the Government assumed the risk of regulatory change. Its argument, however, ignores the preceding sentence providing that the Bank Board's resolutions and actions in connection with the merger must prevail over contrary regulations. If anything, then, the accounting principles clause tilts in favor of interpreting the contract to lock in the then-current regulatory treatment of supervisory goodwill.In any event, we do not doubt the soundness of the Federal Circuit's finding that the overall "documentation in the Win-866Opinion of SOUTER, J.star transaction establishes an express agreement allowing Winstar to proceed with the merger plan approved by the Bank Board, including the recording of supervisory goodwill as a capital asset for regulatory capital purposes to be amortized over 35 years." 64 F. 3d, at 1544. As in the Glendale transaction, the circumstances of the merger powerfully support this conclusion: The tangible net worth of the acquired institution was a negative $6.7 million, and the new Winstar thrift would have been out of compliance with regulatory capital standards from its very inception, without including goodwill in the relevant calculations. We thus accept the Court of Appeals's conclusion that "it was the intention of the parties to be bound by the accounting treatment for goodwill arising in the merger." Ibid.3Statesman, another nonthrift entity, approached FSLIC in 1987 about acquiring a subsidiary of First Federated Savings Bank, an insolvent Florida thrift. FSLIC responded that if Statesman wanted Government assistance in the acquisition it would have to acquire all of First Federated as well as three shaky thrifts in Iowa. Statesman and FSLIC ultimately agreed on a complex plan for acquiring the four thrifts; the agreement involved application of the purchase method of accounting, a $21 million cash contribution from Statesman to be accompanied by $60 million from FSLIC, and (unlike the Glendale and Winstar plans) treatment of $26 million of FSLIC's contribution as a permanent capital credit to Statesman's regulatory capital.The Assistance Agreement between Statesman and FSLIC included an "accounting principles" clause virtually identical to Winstar's, see App. 402-403, as well as a specific provision for the capital credit:"For the purposes of reports to the Bank Board ... , $26 million of the contribution [made by FSLIC] shall be credited to [Statesman's] regulatory capital account867and shall constitute regulatory capital (as defined in § 561.13 of the Insurance Regulations)." Id., at 362a.As with Glendale and Winstar, the agreement had an integration clause incorporating contemporaneous resolutions and letters issued by the Board. Id., at 407-408. The Board's resolution explicitly acknowledged both the capital credits and the creation of supervisory goodwill to be amortized over 25 years, id., at 458-459, and the Forbearance Letter likewise recognized the capital credit provided for in the agreement. Id., at 476. Finally, the parties executed a separate Regulatory Capital Maintenance Agreement stating that, "[i]n consideration of the mutual promises contained [t]herein," id., at 418, Statesman would be obligated to maintain the regulatory capital of the acquired thrifts "at the level ... required by § 563.13(b) of the Insurance Regulations ... or any successor regulation .... " The agreement further provided, however, that "[nor purposes of this Agreement, any determination of [Statesman's] Required Regulatory Capital ... shall include ... amounts permitted by the FSLIC in the Assistance Agreement and in the forbearances issued in connection with the transactions discussed herein." Id., at 418-419. Absent those forbearances, Statesman's thrift would have remained insolvent by almost $9 million despite the cash infusions provided by the parties to the transaction.For the same reasons set out above with respect to the Glendale and Winstar transactions, we accept the Federal Circuit's conclusion that "the government was contractually obligated to recognize the capital credits and the supervisory goodwill generated by the merger as part of the Statesman's regulatory capital requirement and to permit such goodwill to be amortized on a straight line basis over 25 years." 64 F. 3d, at 1543. Indeed, the Government's position is even weaker in Statesman's case because the capital credits portion of the agreement contains an express commitment to include those credits in the calculation of regulatory capital.868Opinion of SOUTER, J.The Government asserts that the reference to § 563.13 of FSLIC regulations, which at the time defined regulatory capital for thrift institutions, indicates that the Government's obligations could change along with the relevant regulations. But, just as in Winstar's case, the Government would have us overlook the specific incorporation of the then-current regulations as part of the agreement.14 The Government also cites a provision requiring Statesman to "comply in all material respects with all applicable statutes, regulations, orders of, and restrictions imposed by the United States or ... by any agency of [the United States]," App. 407, but this simply meant that Statesman was required to observe FIRREA's new capital requirements once they were promulgated. The clause was hardly necessary to oblige Statesman to obey the law, and nothing in it barred Statesman from asserting that passage of that law required the Government to take action itself or be in breach of its contract.BIt is important to be clear about what these contracts did and did not require of the Government. Nothing in the documentation or the circumstances of these transactions purported to bar the Government from changing the way in which it regulated the thrift industry. Rather, what the Federal Circuit said of the Glendale transaction is true of the Winstar and Statesman deals as well: "the Bank Board and the FSLIC were contractually bound to recognize the supervisory goodwill and the amortization periods reflected" in the agreements between the parties. 64 F. 3d, at 1541-1542. We read this promise as the law of contracts has always treated promises to provide something beyond the promi-14 As part of the contract, the Government's promise to count supervisory goodwill and capital credits toward regulatory capital was alterable only by written agreement of the parties. See App. 408. This was also true of the Glendale and Winstar transactions. See id., at 112, 600.869sor's absolute control, that is, as a promise to insure the promisee against loss arising from the promised condition's nonoccurrence.15 Holmes's example is famous: "[i]n the case of a binding promise that it shall rain to-morrow, the immediate legal effect of what the promisor does is, that he takes the risk of the event, within certain defined limits, as between himself and the promisee." Holmes, The Common Law (1881), in 3 The Collected Works of Justice Holmes 268 (S. Novick ed. 1995).16 Contracts like this are especially appropriate in the world of regulated industries, where the risk that legal change will prevent the bargained-for performance is always lurking in the shadows. The drafters of the Restatement attested to this when they explained that, "[w]ith the trend toward greater governmental regulation ... parties are increasingly aware of such risks, and a party may undertake a duty that is not discharged by such supervening governmental actions .... " Restatement (Second) of Contracts § 264, Comment a. "Such an agreement," according to the Restatement, "is usually interpreted as one to pay15 To be sure, each side could have eliminated any serious contest about the correctness of their interpretive positions by using clearer language. See, e. g., Guaranty Financial Services, Inc. v. Ryan, 928 F.2d 994, 9991000 (CAll 1991) (finding, based on very different contract language, that the Government had expressly reserved the right to change the capital requirements without any responsibility to the acquiring thrift). The failure to be even more explicit is perhaps more surprising here, given the size and complexity of these transactions. But few contract cases would be in court if contract language had articulated the parties' postbreach positions as clearly as might have been done, and the failure to specify remedies in the contract is no reason to find that the parties intended no remedy at all. The Court of Claims and Federal Circuit were thus left with the familiar task of determining which party's interpretation was more nearly supported by the evidence.16 See also Day v. United States, 245 U. S. 159, 161 (1917) (Holmes, J.) ("One who makes a contract never can be absolutely certain that he will be able to perform it when the time comes, and the very essence of it is that he takes the risk within the limits of his undertaking").870Opinion of SOUTER, J.damages if performance is prevented rather than one to render a performance in violation oflaw." Ibid.17When the law as to capital requirements changed in the present instance, the Government was unable to perform its promise and, therefore, became liable for breach. We accept the Federal Circuit's conclusion that the Government breached these contracts when, pursuant to the new regulatory capital requirements imposed by FIRREA, 12 U. S. C. § 1464(t), the federal regulatory agencies limited the use of supervisory goodwill and capital credits in calculating respondents' net worth. 64 F. 3d, at 1545. In the case of Winstar and Statesman, the Government exacerbated its breach when it seized and liquidated respondents' thrifts for regulatory noncompliance. Ibid.In evaluating the relevant documents and circumstances, we have, of course, followed the Federal Circuit in applying17 See, e. g., Hughes Communications Galaxy, Inc. v. United States, 998 F. 2d 953, 957-959 (CA Fed. 1993) (interpreting contractual incorporation of then-current Government policy on space shuttle launches not as a promise not to change that policy, but as a promise "to bear the cost of changes in launch priority and scheduling resulting from the revised policy"); Hills Materials Co. v. Rice, 982 F.2d 514, 516-517 (CA Fed. 1992) (interpreting contract to incorporate safety regulations extant when contract was signed and to shift responsibility for costs incurred as a result of new safety regulations to the Government); see generally 18 W. Jaeger, Williston on Contracts § 1934, pp. 19-21 (3d ed. 1978) ("Although a warranty in effect is a promise to pay damages if the facts are not as warranted, in terms it is an undertaking that the facts exist. And in spite of occasional statements that an agreement impossible in law is void there seems no greater difficulty in warranting the legal possibility of a performance than its possibility in fact .... [T]here seems no reason of policy forbidding a contract to perform a certain act legal at the time of the contract if it remains legal at the time of performance, and if not legal, to indemnify the promisee for non-performance" (footnotes omitted)); 5A A. Corbin, Corbin on Contracts § 1170, p. 254 (1964) (noting that in some cases where subsequent legal change renders contract performance illegal, "damages are still available as a remedy, either because the promisor assumed the risk or for other reasons," but specific performance will not be required).871ordinary principles of contract construction and breach that would be applicable to any contract action between private parties. The Government's case, however, is that the Federal Circuit's decision to apply ordinary principles was error for a variety of reasons, each of which we consider, and reject, in the sections ahead.IIIThe Government argues for reversal, first, on the principle that "contracts that limit the government's future exercises of regulatory authority are strongly disfavored; such contracts will be recognized only rarely, and then only when the limitation on future regulatory authority is expressed in unmistakable terms." Brief for United States 16. Hence, the Government says, the agreements between the Bank Board, FSLIC, and respondents should not be construed to waive Congress's authority to enact a subsequent bar to using supervisory goodwill and capital credits to meet regulatory capital requirements.The argument mistakes the scope of the unmistakability doctrine. The thrifts do not claim that the Bank Board and FSLIC purported to bind Congress to ossify the law in conformity to the contracts; they seek no injunction against application of FIRREA's new capital requirements to them and no exemption from FIRREA's terms. They simply claim that the Government assumed the risk that subsequent changes in the law might prevent it from performing, and agreed to pay damages in the event that such failure to perform caused financial injury. The question, then, is not whether Congress could be constrained but whether the doctrine of unmistakability is applicable to any contract claim against the Government for breach occasioned by a subsequent Act of Congress. The answer to this question is no.AThe unmistakability doctrine invoked by the Government was stated in Bowen v. Public Agencies Opposed to Social872Opinion of SOUTER, J.Security Entrapment: "'[SJovereign power ... governs all contracts subject to the sovereign's jurisdiction, and will remain intact unless surrendered in unmistakable terms.'" 477 U. S., at 52 (quoting Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 148 (1982)). This doctrine marks the point of intersection between two fundamental constitutional concepts, the one traceable to the theory of parliamentary sovereignty made familiar by Blackstone, the other to the theory that legislative power may be limited, which became familiar to Americans through their experience under the colonial charters, see G. Wood, Creation of the American Republic 1776-1787, pp. 268-271 (1969).In his Commentaries, Blackstone stated the centuries-old concept that one legislature may not bind the legislative authority of its successors:"Acts of parliament derogatory from the power of subsequent parliaments bind not .... Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if it's [sic] ordinances could bind the present parliament." 1 W. Blackstone, Commentaries on the Laws of England 90 (1765).18In England, of course, Parliament was historically supreme in the sense that no "higher law" limited the scope of legislative action or provided mechanisms for placing legally enforceable limits upon it in specific instances; the power of American legislative bodies, by contrast, is subject to the overriding dictates of the Constitution and the obligations that it authorizes. See Eule, Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity, 1987 Am.18 See also H. Hart, The Concept of Law 145 (1961) (recognizing that Parliament is "sovereign, in the sense that it is free, at every moment of its existence as a continuing body, not only from legal limitations imposed ab extra, but also from its own prior legislation").873Bar Found. Research J. 379, 392-393 (observing that the English rationale for precluding a legislature from binding its successors does not apply in America). Hence, although we have recognized that "a general law ... may be repealed, amended or disregarded by the legislature which enacted it," and "is not binding upon any subsequent legislature," Manigault v. Springs, 199 U. S. 473, 487 (1905),19 on this side of the Atlantic the principle has always lived in some tension with the constitutionally created potential for a legislature, under certain circumstances, to place effective limits on its successors, or to authorize executive action resulting in such a limitation.The development of this latter, American doctrine in federallitigation began in cases applying limits on state sovereignty imposed by the National Constitution. Thus Chief Justice Marshall's exposition in Fletcher v. Peck, 6 Cranch 87 (1810), where the Court held that the Contract Clause, U. S. Const., Art. I, § 10, cl. 1, barred the State of Georgia's effort to rescind land grants made by a prior state legislature. Marshall acknowledged "that one legislature is competent to repeal any act which a former legislature was competent to pass; and that one legislature cannot abridge the powers of a succeeding legislature." 6 Cranch, at 135. "The correctness of this principle, so far as respects general legislation," he said, "can never be controverted." Ibid. Marshall went on to qualify the principle, however, noting that "if an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power." Ibid. For Marshall, this was true for the two distinct reasons that the intrusion on vested rights by the Georgia Legislature's Act of repeal might well have gone beyond the limits of "the19 See also Reichelderfer v. Quinn, 287 U. S. 315, 318 (1932) ("[T]he will of a particular Congress ... does not impose itself upon those to follow in succeeding years"); Black, Amending the Constitution: A Letter to a Congressman, 82 Yale L. J. 189, 191 (1972) (characterizing this "most familiar and fundamental principl[e]" as "so obvious as rarely to be stated").874Opinion of SOUTER, J.legislative power," and that Georgia's legislative sovereignty was limited by the Federal Constitution's bar against laws impairing the obligation of contracts. Id., at 135-136.The impetus for the modern unmistakability doctrine was thus Chief Justice Marshall's application of the Contract Clause to public contracts. Although that Clause made it possible for state legislatures to bind their successors by entering into contracts, it soon became apparent that such contracts could become a threat to the sovereign responsibilities of state governments. Later decisions were accordingly less willing to recognize contractual restraints upon legislative freedom of action, and two distinct limitations developed to protect state regulatory powers. One came to be known as the "reserved powers" doctrine, which held that certain substantive powers of sovereignty could not be contracted away. See West River Bridge Co. v. Dix, 6 How. 507 (1848) (holding that a State's contracts do not surrender its eminent domain power).20 The other, which surfaced somewhat earlier in Providence Bank v. Billings, 4 Pet. 514 (1830), and Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420 (1837), was a canon of construction disfavoring implied governmental obligations in public contracts. Under this rule that "[a]ll public grants are strictly construed," The Delaware Railroad Tax, 18 Wall. 206, 225 (1874), we have insisted that "[n]othing can be taken against the State by presumption or inference," ibid., and that "neither the right of taxation, nor any other power of sovereignty, will be held ... to have been surrendered, unless20 See also Stone v. Mississippi, 101 U. S. 814 (1880) (State may not contract away its police power); Butchers' Union Slaughter-House & LiveStock Landing Co. v. Crescent City Live-Stock Landing & SlaughterHouse Co., 111 U. S. 746 (1884) (same); see generally Griffith, Local Government Contracts: Escaping from the Governmental/Proprietary Maze, 75 Iowa L. Rev. 277, 290-299 (1990) (recounting the early development of the reserved powers doctrine). We discuss the application of the reserved powers doctrine to this case infra, at 888-889.875such surrender has been expressed in terms too plain to be mistaken." Jefferson Branch Bank v. Skelly, 1 Black 436, 446 (1862).The posture of the government in these early unmistakability cases is important. In each, a state or local government entity had made a contract granting a private party some concession (such as a tax exemption or a monopoly), and a subsequent governmental action had abrogated the contractual commitment. In each case, the private party was suing to invalidate the abrogating legislation under the Contract Clause. A requirement that the government's obligation unmistakably appear thus served the dual purposes of limiting contractual incursions on a State's sovereign powers and of avoiding difficult constitutional questions about the extent of state authority to limit the subsequent exercise of legislative power. Cf. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress"); Ashwander v. TV A, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring) (same).The same function of constitutional avoidance has marked the expansion of the unmistakability doctrine from its Contract Clause origins dealing with state grants and contracts to those of other governmental sovereigns, including the United States. See Merrion v. Jicarilla Apache Tribe, 455 U. S., at 148 (deriving the unmistakability principle from St. Louis v. United Railways Co., 210 U. S. 266 (1908), a Contract Clause suit against a state government).21 Although21 United Railways is in the line of cases stretching back to Providence Bank v. Billings, 4 Pet. 514 (1830), and Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420 (1837). Justice Day's opinion in United Railways relied heavily upon New Orleans City & Lake R. Co. v. New Orleans, 143 U. S. 192 (1892), which in turn relied upon876Opinion of SOUTER, J.the Contract Clause has no application to acts of the United States, Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717, 732, n. 9 (1984), it is clear that the National Government has some capacity to make agreements binding future Congresses by creating vested rights, see, e. g., Perry v. United States, 294 U. S. 330 (1935); Lynch v. United States, 292 U. S. 571 (1934). The extent of that capacity, to be sure, remains somewhat obscure. Compare, e. g., United States Trust Co. of N. Y. v. New Jersey, 431 U. S. 1, 26 (1977) (heightened Contract Clause scrutiny when States abrogate their own contractual obligations), with Pension Benefit Guaranty Corporation, supra, at 733 (contrasting less exacting due process standards governing federal economic legislation affecting private contracts). But the want of more developed law on limitations independent of the Contract Clause is in part the result of applying the unmistakability canon of construction to avoid this doctrinal thicket, as we have done in several cases involving alleged surrenders of sovereign prerogatives by the National Government and Indian tribes.First, we applied the doctrine to protect a tribal sovereign in Merrion v. Jicarilla Apache Tribe, supra, which held that long-term oil and gas leases to private parties from an Indian Tribe, providing for specific royalties to be paid to the Tribe, did not limit the Tribe's sovereign prerogative to tax the proceeds from the lessees' drilling activities. Id., at 148.classic Contract Clause unmistakability cases like Vicksburg S. & P. R. Co. v. Dennis, 116 U. S. 665 (1886), Memphis Gas Light Co. v. Taxing Dist. of Shelby Cty., 109 U. S. 398 (1883), and Piqua Branch of State Bank of Ohio v. Knoop, 16 How. 369 (1854). And Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 (1934), upon which Merrion also relied, cites Charles River Bridge directly. See 290 U. S., at 435; see also Note, Forbearance Agreements: Invalid Contracts for the Surrender of Sovereignty, 92 Colum. L. Rev. 426, 453 (1992) (linking the unmistakability principle applied in Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U. S. 41 (1986), to the Charles River Bridge/Providence Bank line of cases).877Because the lease made no reference to the Tribe's taxing power, we held simply that a waiver of that power could not be "inferred ... from silence," ibid., since the taxing power of any government remains "unless it is has been specifically surrendered in terms which admit of no other reasonable interpretation." Ibid. (internal quotation marks and citation omitted).In Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U. S. 41 (1986), this Court confronted a state claim that § 103 of the Social Security Amendments Act of 1983, 97 Stat. 71, 42 U. S. C. § 418(g) (1982 ed., Supp. II), was unenforceable to the extent it was inconsistent with the terms of a prior agreement with the National Government. Under the law before 1983, a State could agree with the Secretary of Health and Human Services to cover the State's employees under the Social Security scheme subject to a right to withdraw them from coverage later. When the 1983 Act eliminated the right of withdrawal, the State of California and related plaintiffs sought to enjoin application of the new law to them, or to obtain just compensation for loss of the withdrawal right (a remedy which the District Court interpreted as tantamount to the injunction, since it would mandate return of all otherwise required contributions, see 477 U. S., at 51). Although we were able to resolve the case by reading the terms of a state-federal coverage agreement to reserve the Government's right to modify its terms by subsequent legislation, in the alternative we rested the decision on the more general principle that, absent an "unmistakable" provision to the contrary, "contractual arrangements, including those to which a sovereign itself is a party, 'remain subject to subsequent legislation' by the sovereign." Id., at 52 (quoting Merrion, supra, at 147). We thus rejected the proposal "to find that a 'sovereign forever waives the right to exercise one of its sovereign powers unless it expressly reserves the right to exercise that power in' the contract," Bowen, supra, at 52 (quoting Merrion, supra, at 148), and878Opinion of SOUTER, J.held instead that unmistakability was needed for waiver, not reservation.Most recently, in United States v. Cherokee Nation of Okla., 480 U. S. 700 (1987), we refused to infer a waiver of federal sovereign power from silence. There, an Indian Tribe with property rights in a riverbed derived from a Government treaty sued for just compensation for damage to its interests caused by the Government's navigational improvements to the Arkansas River. The claim for compensation presupposed, and was understood to presuppose, that the Government had conveyed to the Tribe its easement to control navigation; absent that conveyance, the Tribe's property included no right to be free from the Government's riverbed improvements. Id., at 704. We found, however, that the treaty said nothing about conveying the Government's navigational easement, see id., at 706, which we saw as an aspect of sovereignty. This, we said, could be "'surrendered [only] in unmistakable terms,'" id., at 707 (quoting Bowen, supra, at 52), if indeed it could be waived at all.Merrion, Bowen, and Cherokee Nation thus announce no new rule distinct from the canon of construction adopted in Providence Bank and Charles River Bridge; their collective holding is that a contract with a sovereign government will not be read to include an unstated term exempting the other contracting party from the application of a subsequent sovereign act (including an Act of Congress), nor will an ambiguous term of a grant or contract be construed as a conveyance or surrender of sovereign power. The cases extending back into the 19th century thus stand for a rule that applies when the Government is subject either to a claim that its contract has surrendered a sovereign power22 (e. g., to tax or22 "Sovereign power" as used here must be understood as a power that could otherwise affect the Government's obligation under the contract. The Government could not, for example, abrogate one of its contracts by a statute abrogating the legal enforceability of that contract, Government contracts of a class including that one, or simply all Government con-879control navigation), or to a claim that cannot be recognized without creating an exemption from the exercise of such a power (e. g., the equivalent of exemption from Social Security obligations). The application of the doctrine thus turns on whether enforcement of the contractual obligation alleged would block the exercise of a sovereign power of the Government.Since the criterion looks to the effect of a contract's enforcement, the particular remedy sought is not dispositive and the doctrine is not rendered inapplicable by a request for damages, as distinct from specific performance. The respondents in Cherokee Nation sought nothing beyond damages, but the case still turned on the unmistakability doctrine because there could be no claim to harm unless the right to be free of the sovereign power to control navigation had been conveyed away by the Government.23 So, too, in Bowen: the sole relief sought was dollars and cents, but the award of damages as requested would have been thetracts. No such legislation would provide the Government with a defense under the sovereign acts doctrine, see infra, at 891-899.23 The Government's right to take the Tribe's property upon payment of compensation, of course, did not depend upon the navigational servitude; where it applies, however, the navigational easement generally obviates the obligation to pay compensation at all. See, e. g., United States v. Kansas City Life Ins. Co., 339 U. S. 799, 808 (1950) ("When the Government exercises [the navigational] servitude, it is exercising its paramount power in the interest of navigation, rather than taking the private property of anyone"); Scranton v. Wheeler, 179 U. S. 141, 163 (1900) ("Whatever the nature of the interest of a riparian owner in the submerged lands in front of his upland bordering on a public navigable water, his title is not as full and complete as his title to fast land which has no direct connection with the navigation of such water. It is a qualified title ... to be held at all times subordinate to such use of the submerged lands and of the waters flowing over them as may be consistent with or demanded by the public right of navigation"). Because an order to pay compensation would have placed the Government in the same position as if the navigational easement had been surrendered altogether, the holding of Cherokee Nation is on all fours with the approach we describe today.880Opinion of SOUTER, J.equivalent of exemption from the terms of the subsequent statute.The application of the doctrine will therefore differ according to the different kinds of obligations the Government may assume and the consequences of enforcing them. At one end of the wide spectrum are claims for enforcement of contractual obligations that could not be recognized without effectively limiting sovereign authority, such as a claim for rebate under an agreement for a tax exemption. Granting a rebate, like enjoining enforcement, would simply block the exercise of the taxing power, cf. Bowen, 477 U. S., at 51, and the unmistakability doctrine would have to be satisfied.24 At the other end are contracts, say, to buy food for the army; no sovereign power is limited by the Government's promise to purchase and a claim for damages implies no such limitation. That is why no one would seriously contend that enforcement of humdrum supply contracts might be subject to the unmistakability doctrine. Between these extremes lies an enormous variety of contracts including those under which performance will require exercise (or not) of a power peculiar to the Government. So long as such a contract is reasonably construed to include a risk-shifting component that may be enforced without effectively barring the exercise of that power, the enforcement of the risk allocation raises nothing for the unmistakability doctrine to guard against, and there is no reason to apply it.24 The dissent is mistaken in suggesting there is question begging in speaking of what a Government contract provides without first applying the unmistakability doctrine, see post, at 929. A contract may reasonably be read under normal rules of construction to contain a provision that does not satisfy the more demanding standard of unmistakable clarity. If an alleged term could not be discovered under normal standards, there would be no need for an unmistakability doctrine. It would, of course, make good sense to apply the unmistakability rule if it was clear from the start that a contract plaintiff could not obtain the relief sought without effectively barring exercise of a sovereign power, as in the example of the promisee of the tax exemption who claims a rebate.881The Government argues that enforcement of the contracts in this case would implicate the unmistakability principle, with the consequence that Merrion, Bowen, and Cherokee Nation are good authorities for rejecting respondents' claims. The Government's position is mistaken, however, for the complementary reasons that the contracts have not been construed as binding the Government's exercise of authority to modify banking regulation or of any other sovereign power, and there has been no demonstration that awarding damages for breach would be tantamount to any such limitation.As construed by each of the courts that considered these contracts before they reached us, the agreements do not purport to bind the Congress from enacting regulatory measures, and respondents do not ask the courts to infer from silence any such limit on sovereign power as would violate the holdings of Merrion and Cherokee Nation. The contracts have been read as solely risk-shifting agreements and respondents seek nothing more than the benefit of promises by the Government to insure them against any losses arising from future regulatory change. They seek no injunction against application of the law to them, as the plaintiffs did in Bowen and Merrion, cf. Reichelderfer v. Quinn, 287 U. S. 315 (1932), and they acknowledge that the Bank Board and FSLIC could not bind Congress (and possibly could not even bind their future selves) not to change regulatory policy.Nor do the damages respondents seek amount to exemption from the new law, in the manner of the compensation sought in Bowen, see 477 U. S., at 51. Once general jurisdiction to make an award against the Government is conceded, a requirement to pay money supposes no surrender of sovereign power by a sovereign with the power to contract. See, e. g., Amino Bros. Co. v. United States, 178 Ct. Cl. 515, 525, 372 F.2d 485, 491 ("The Government cannot make a binding contract that it will not exercise a sovereign power, but it can agree in a contract that if it does so, it will pay the other882Opinion of SOUTER, J.contracting party the amount by which its costs are increased by the Government's sovereign act"), cert. denied, 389 U. S. 846 (1967).25 Even if respondents were asking that the Government be required to make up any capital deficiency arising from the exclusion of goodwill and capital credits from the relevant calculations, such relief would hardly amount to an exemption from the capital requirements of FIRREA; after all, Glendale (the only respondent thrift still in operation) would still be required to maintain adequate tangible capital reserves under FIRREA, and the purpose of the statute, the protection of the insurance fund, would be served. Nor would such a damages award deprive the Government of money it would otherwise be entitled to receive (as a tax rebate would), since the capital require-25 See also Hughes Communications Galaxy, Inc. v. United States, 998 F. 2d, at 958 (finding the unmistakability doctrine inapplicable to "the question of how liability for certain contingencies was allocated by the contract"); Sunswick Corp. v. United States, 109 Ct. Cl. 772, 798, 75 F. Supp. 221, 228 ("We know of no reason why the Government may not by the terms of its contract bind itself for the consequences of some act on its behalf which, but for the contract, would be nonactionable as an act of the sovereign. As shown in United States v. Bostwick, 94 U. S. 53, 69 [(1877)], the liability of the Government in such circumstances rests upon the contract and not upon the act of the Government in its sovereign capacity"), cert. denied, 334 U. S. 827 (1948); see generally Eule, Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity, 1987 Am. Bar Found. Research J. 379, 424 (observing that limiting the Government's obligation to "compensating for the financial losses its repudiations engender ... affords the current legislature the freedom to respond to constituents' needs, while at the same time protecting those whose contractual interests are impaired"); Note, A Procedural Approach to the Contract Clause, 93 Yale L. J. 918, 928-929 (1984) ("A damage remedy is superior to an injunction because damages provide the states with the flexibility to impair contracts retroactively when the benefits exceed the costs. So long as the victims of contract impairments are made whole through compensation, there is little reason to grant those victims an injunctive remedy").883ments of FIRREA govern only the allocation of resources to a thrift and require no payments to the Government at all.26We recognize, of course, that while agreements to insure private parties against the costs of subsequent regulatory change do not directly impede the exercise of sovereign power, they may indirectly deter needed governmental regulation by raising its costs. But all regulations have their costs, and Congress itself expressed a willingness to bear the costs at issue here when it authorized FSLIC to "guarantee [acquiring thrifts] against loss" that might occur as a result of a supervisory merger. 12 U. S. C. § 1729(f)(2) (1988 ed.) (repealed 1989). Just as we have long recognized that the Constitution "'bar[s] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,'" Dolan v. City of Tigard, 512 U. S. 374, 384 (1994) (quoting Armstrong v. United States, 364 U. S. 40, 49 (1960)), so we must reject the suggestion that the Government may simply shift costs of legislation onto its contractual partners who are adversely affected by the change in the law, when the Government has assumed the risk of such change.The Government's position would not only thus represent a conceptual expansion of the unmistakability doctrine beyond its historical and practical warrant, but would place the doctrine at odds with the Government's own long-run interest as a reliable contracting partner in the myriad workaday transaction of its agencies. Consider the procurement con-26 This point underscores the likelihood that damages awards will have the same effect as an injunction only in cases, like Bowen, where a private party seeks the return of payments to the Government. The classic examples, of course, are tax cases like St. Louis v. United Railways Co., 210 U. S. 266 (1908). Because a request for rebate damages in that case would effectively have exempted the plaintiffs from the law by forcing the reimbursement of their tax payments, the dissent is quite wrong to suggest, see post, at 928-929, that the plaintiffs could have altered the outcome by pleading their case differently.884Opinion of SOUTER, J.tracts that can be affected by congressional or executive scale backs in federal regulatory or welfare activity; or contracts to substitute private service providers for the Government, which could be affected by a change in the official philosophy on privatization; or all the contracts to dispose of federal property, surplus or otherwise. If these contracts are made in reliance on the law of contract and without specific provision for default mechanisms,27 should all the private contractors be denied a remedy in damages unless they satisfy the unmistakability doctrine? The answer is obviously no because neither constitutional avoidance nor any apparent need to protect the Government from the consequences of standard operations could conceivably justify applying the doctrine. Injecting the opportunity for unmistakability litigation into every common contract action would, however, produce the untoward result of compromising the Government's practical capacity to make contracts, which we have held to be "of the essence of sovereignty" itself. United States v. Bekins, 304 U. S. 27, 51-52 (1938).28 From a practical standpoint, it would make an inroad on this power, by expanding the Government's opportunities for contractual abrogation, with the certain result of undermining the Government's credibility at the bargaining table and increasing the cost of its engagements. As Justice Brandeis27 See Posner & Rosenfield, Impossibility and Related Doctrines in Contract Law: An Economic Analysis, 6 J. Legal Studies 83, 88-89 (1977) (noting that parties generally rely on contract law "to reduce the costs of contract negotiation by supplying contract terms that the parties would probably have adopted explicitly had they negotiated over them").28 See also Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U. S., at 52 ("[T]he Federal Government, as sovereign, has the power to enter contracts that confer vested rights, and the concomitant duty to honor those rights ... "); Perry v. United States, 294 U. S. 330, 353 (1935) ("[T]he right to make binding obligations is a competence attaching to sovereignty"); cf. Hart, The Concept of Law, at 145-146 (noting that the ability to limit a body's future authority is itself one aspect of sovereignty).885recognized, "[p]unctilious fulfillment of contractual obligations is essential to the maintenance of the credit of public as well as private debtors." Lynch v. United States, 292 U. S., at 580.29The dissent's only answer to our concern is to recognize that "Congress may not simply abrogate a statutory provision obligating performance without breaching the contract and rendering itself liable for damages." Post, at 929 (citing Lynch, supra, at 580). Yet the only grounds that statement suggests for distinguishing Lynch from the present case is that there the contractual obligation was embodied in a statute. Putting aside the question why this distinction should make any difference, we note that the dissent seemingly does not deny that its view would apply the unmistakability doctrine to the vast majority of governmental contracts, which would be subject to abrogation arguments based on subsequent sovereign acts. Indeed, the dissent goes so far as to argue that our conclusion that damages are available for breach even where the parties did not specify a remedy in the contract depends upon "reading of additional terms into the contract." Post, at 930. That, of course, is not the law; damages are always the default remedy for breach of contract.30 And we suspect that most Government contractors would be quite surprised by the dissent's conclusion that, where they have failed to require an express provision that29 See also Logue, Tax Transitions, Opportunistic Retroactivity, and the Benefits of Government Precommitment, 94 Mich. L. Rev. 1129, 1146 (1996) ("If we allowed the government to break its contractual promises without having to pay compensation, such a policy would come at a high cost in terms of increased default premiums in future government contracts and increased disenchantment with the government generally").30 See, e. g., Restatement (Second) of Contracts § 346, Comment a (1981) ("Every breach of contract gives the injured party a right to damages against the party in breach" unless "[t]he parties ... by agreement vary the rules"); 3 E. Farnsworth, Contracts § 12.8, p. 185 (1990) ("The award of damages is the common form of relief for breach of contract. Virtually any breach gives the injured party a claim for damages").886Opinion of SOUTER, J.damages will be available for breach, that remedy must be "implied in law" and therefore unavailable under the Tucker Act, ibid.Nor can the dissenting view be confined to those contracts that are "regulatory" in nature. Such a distinction would raise enormous analytical difficulties; one could ask in this case whether the Government as contractor was regulating or insuring. The dissent understandably does not advocate such a distinction, but its failure to advance any limiting principle at all would effectively compromise the Government's capacity as a reliable, straightforward contractor whenever the subject matter of a contract might be subject to subsequent regulation, which is most if not all of the time.31 Since the facts of the present case demonstrate that the Government may wish to further its regulatory goals through contract, we are unwilling to adopt any rule of construction that would weaken the Government's capacity to do business by converting every contract it makes into an arena for unmistakability litigation.In any event, we think the dissent goes fundamentally wrong when it concludes that "the issue of remedy for ... breach" can arise only "[i]f the sovereign did surrender its power unequivocally." Post, at 929. This view ignores the31 The dissent justifies its all-devouring view of unmistakability not by articulating any limit, but simply by reminding us that" '[m]en must turn square corners when they deal with the Government.''' Post, at 937 (quoting Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920) (Holmes, J.)). We have also recognized, however, that" '[i]t is no less good morals and good law that the Government should turn square corners in dealing with the people than that the people should turn square corners in dealing with their government.''' Heckler v. Community Health Services of Crawford Cty., Inc., 467 U. S. 51, 61, n. 13 (1984) (quoting St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting). See also Federal Crop Ins. Corp. v. Merrill, 332 U. S. 380, 387-388 (1947) (Jackson, J., dissenting) ("It is very well to say that those who deal with the Government should turn square corners. But there is no reason why the square corners should constitute a one-way street").887other, less remarkable possibility actually found by both courts that construed these contracts: that the Government agreed to do something that did not implicate its sovereign powers at all, that is, to indemnify its contracting partners against tinanciallosses arising from regulatory change. We accordingly hold that the Federal Circuit correctly refused to apply the unmistakability doctrine here. See 64 F. 3d, at 1548. There being no need for an unmistakably clear "second promise" not to change the capital requirements, it is sufficient that the Government undertook an obligation that it subsequently found itself unable to perform. This conclusion does not, of course, foreclose the assertion of a defense that the contracts were ultra vires or that the Government's obligation should be discharged under the common-law doctrine of impossibility, see infra, at 888-891, 904-910, but nothing in the nature of the contracts themselves raises a bar to respondents' claims for breach.3232JUSTICE SCALIA offers his own theory of unmistakability, see post, at 919-922, which would apply in a wide range of cases and so create some tension with the general principle that the Government is ordinarily treated just like a private party in its contractual dealings, see, e. g., Perry v. United States, 294 U. S., at 352, but which would be satisfied by an inference of fact and therefore offer a only a low barrier to litigation of constitutional issues if a party should, in fact, prove a governmental promise not to change the law. JUSTICE SCALIA seeks to minimize the latter concern by quoting Holmes's pronouncement on damages as the exclusive remedy at law for breach of contract, see post, at 919-920, but this ignores the availability of specific performance in a nontrivial number of cases, see, e. g., Restatement (Second) of Contracts §§ 357-359, including the Contract Clause cases in which the unmistakability doctrine itself originated. See, e. g., Carter v. Greenhow, 114 U. S. 317, 322 (1885) (stating that "the only right secured" by the Contract Clause is "to have a judicial determination, declaring the nullity of the attempt to impair [the contract's] obligation"); Note, Takings Law and the Contract Clause: A Takings Law Approach to Legislative Modifications of Public Contracts, 36 Stan. L. Rev. 1447, 1462 (1984) (suggesting that "analysis under the contract clause is limited to declaring the statute unconstitutional. The provision does not authorize the courts to award damages in lieu of requiring the state to adhere to the original terms of the contract"); cf. C. Fried, Contract as Promise 117-888Opinion of SOUTER, J.BThe answer to the Government's unmistakability argument also meets its two related contentions on the score of ultra vires: that the Bank Board and FSLIC had no authority to bargain away Congress's power to change the law in the future, and that we should in any event find no such authority conferred without an express delegation to that effect. The first of these positions rests on the reserved powers doctrine, developed in the course of litigating claims that States had violated the Contract Clause. See supra, at 874. It holds that a state government may not contract away "an essential attribute of its sovereignty," United States Trust, 431 U. S., at 23, with the classic example of its limitation on the scope of the Contract Clause being found in Stone v. Mississippi, 101 U. S. 814 (1880). There a corporation bargained for and received a state legislative charter to conduct lotteries, only to have them outlawed by statute a year later. This Court rejected the argument that the charter immunized the corporation from the operation of the statute, holding that "the legislature cannot bargain away the police power of a State." Id., at 817.33The Government says that "[t]he logic of the doctrine ... applies equally to contracts alleged to have been made by the federal government." Brief for United States 38. This118 (1981) (arguing that "Holmes's celebrated dictum ... goes too far, is too simple"). Finally, we have no need to consider the close relationship that JUSTICE SCALIA sees between the unmistakability and sovereign acts doctrines, see post, at 923-924, because, even considered separately, neither one favors the Government in this case.33 See also Atlantic Coast Line R. Co. v. Goldsboro, 232 U. S. 548, 558 (1914) ("[T]he power of the State to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community ... can neither be abdicated nor bargained away, and is inalienable even by express grant"); West River Bridge Co. v. Dix, 6 How. 507 (1848) (State's contracts do not relinquish its eminent domain power).889may be so but is also beside the point, for the reason that the Government's ability to set capital requirements is not limited by the Bank Board's and FSLIC's promises to make good any losses arising from subsequent regulatory changes. See supra, at 882-883. The answer to the Government's contention that the State cannot barter away certain elements of its sovereign power is that a contract to adjust the risk of subsequent legislative change does not strip the Government of its legislative sovereignty.34The same response answers the Government's demand for express delegation of any purported authority to fetter the exercise of sovereign power. It is true, of course, that in Home Telephone & Telegraph Co. v. Los Angeles, 211 U. S., at 273, we said that "[t]he surrender, by contract, of a power of government, though in certain well-defined cases it may be made by legislative authority, is a very grave act, and the surrender itself, as well as the authority to make it, must be closely scrutinized." Hence, where "a contract has the effect of extinguishing pro tanto an undoubted power of government," we have insisted that "both [the contract's] existence and the authority to make it must clearly and unmistakably appear, and all doubts must be resolved in favor of the continuance of the power." Ibid. But Home Telephone & Telegraph simply has no application to the pres-34 To the extent that JUSTICE SCALIA finds the reserved powers doctrine inapplicable because "the private party to the contract does not seek to stay the exercise of sovereign authority, but merely requests damages for breach of contract," post, at 923, he appears to adopt a distinction between contracts of indemnity and contracts not to change the law similar to the unmistakability analysis he rejects. He also suggests that the present case falls outside the "core governmental powers" that cannot be surrendered under the reserved powers doctrine, but this suggestion is inconsistent with our precedents. See Stone v. Mississippi, 101 U. S. 814, 817 (1880) ("[T]he legislature cannot bargain away the police power of a State"); Veix v. Sixth Ward Building & Loan Assn. of Newark, 310 U. S. 32,38 (1940) (recognizing that thrift regulation is within the police power).890Opinion of SOUTER, J.ent case, because there were no contracts to surrender the Government's sovereign power to regulate.35There is no question, conversely, that the Bank Board and FSLIC had ample statutory authority to do what the Court of Federal Claims and the Federal Circuit found they did do, that is, promise to permit respondents to count supervisory goodwill and capital credits toward regulatory capital and to pay respondents' damages if that performance became impossible. The organic statute creating FSLIC as an arm of the Bank Board, 12 U. S. C. § 1725(c) (1988 ed.) (repealed 1989), generally empowered it "[t]o make contracts,"36 and § 1729(f)(2), enacted in 1978, delegated more specific powers in the context of supervisory mergers:"Whenever an insured institution is in default or, in the judgment of the Corporation, is in danger of default, the Corporation may, in order to facilitate a merger or consolidation of such insured institution with another insured institution ... guarantee such other insured institution against loss by reason of its merging or consolidating with or assuming the liabilities and purchasing the assets of such insured institution in or in danger of default." 12 U. S. C. § 1729(f)(2) (1976 ed., Supp. V) (repealed 1989).Nor is there any reason to suppose that the breadth of this authority was not meant to extend to contracts governing treatment of regulatory capital. Congress specifically rec-35 See Speidel, Implied Duties of Cooperation and the Defense of Sovereign Acts in Government Contracts, 51 Geo. L. J. 516, 542 (1963) ("[W]hile the contracting officers of Agency X cannot guarantee that the United States will not perform future acts of effective government, they can agree to compensate the contractor for damages resulting from justifiable acts of the United States in its 'sovereign capacity'" (footnotes omitted)).36 See also 1 R. Nash & J. Cibinic, Federal Procurement Law 5 (3d ed. 1977) ("The authority of the executive to use contracts in carrying out authorized programs is ... generally assumed in the absence of express statutory prohibitions or limitations").891ognized FSLIC's authority to permit thrifts to count goodwill toward capital requirements when it modified the N ational Housing Act in 1987:"No provision of this section shall affect the authority of the [FSLIC] to authorize insured institutions to utilize subordinated debt and goodwill in meeting reserve and other regulatory requirements." 12 U. S. C. § 1730h(d) (1988 ed.) (repealed 1989).See also S. Rep. No. 100-19, p. 55 (1987) ("It is expected ... that the [Bank Board] will retain its own authority to determine ... the components and level of capital to be required of FSLIC-insured institutions"); NLRB v. Bell Aerospace Co., 416 U. S. 267, 275 (1974) ("[S]ubsequent legislation declaring the intent of an earlier statute is entitled to significant weight"). There is no serious question that FSLIC (and the Bank Board acting through it) was authorized to make the contracts in issue.IVThe Government's final line of defense is the sovereign acts doctrine, to the effect that" '[w]hatever acts the government may do, be they legislative or executive, so long as they be public and general, cannot be deemed specially to alter, modify, obstruct or violate the particular contracts into which it enters with private persons.'" Horowitz v. United States, 267 U. S., at 461 (quoting Jones v. United States, 1 Ct. Cl. 383, 384 (1865)). Because FIRREA's alteration of the regulatory capital requirements was a "public and general act," the Government says, that act could not amount to a breach of the Government's contract with respondents.The Government's position cannot prevail, however, for two independent reasons. The facts of this case do not warrant application of the doctrine, and even if that were otherwise the doctrine would not suffice to excuse liability under this governmental contract allocating risks of regulatory change in a highly regulated industry.892Opinion of SOUTER, J.In Horowitz, the plaintiff sued to recover damages for breach of a contract to purchase silk from the Ordnance Department. The agreement included a promise by the Department to ship the silk within a certain time, although the manner of shipment does not appear to have been a subject of the contract. Shipment was delayed because the United States Railroad Administration placed an embargo on shipments of silk by freight, and by the time the silk reached Horowitz the price had fallen, rendering the deal unprofitable. This Court barred any damages award for the delay, noting that "[i]t has long been held by the Court of Claims that the United States when sued as a contractor cannot be held liable for an obstruction to the performance of the particular contract resulting from its public and general acts as a sovereign." 267 U. S., at 461. This statement was not, however, meant to be read as broadly as the Government urges, and the key to its proper scope is found in that portion of our opinion explaining that the essential point was to put the Government in the same position that it would have enjoyed as a private contractor:"'The two characters which the government possesses as a contractor and as a sovereign cannot be thus fused; nor can the United States while sued in the one character be made liable in damages for their acts done in the other. Whatever acts the government may do, be they legislative or executive, so long as they be public and general, cannot be deemed specially to alter, modify, obstruct or violate the particular contracts into which it enters with private persons .... In this court the United States appear simply as contractors; and they are to be held liable only within the same limits that any other defendant would be in any other court. Though their sovereign acts performed for the general good may work injury to some private contractors, such parties gain nothing by having the United States as their defend-893ants.'" Ibid. (quoting Jones v. United States, supra, at 384).The early Court of Claims cases upon which Horowitz relied anticipated the Court's emphasis on the Government's dual and distinguishable capacities and on the need to treat the Government-as-contractor the same as a private party. In Deming v. United States, 1 Ct. Cl. 190 (1865), the Court of Claims rejected a suit by a supplier of army rations whose costs increased as a result of Congress's passage of the Legal Tender Act. The Deming court thought it "grave error" to suppose that "general enactments of Congress are to be construed as evasions of [the plaintiff's] particular contract." Id., at 191. "The United States as a contractor are not responsible for the United States as a lawgiver," the court said. "In this court the United States can be held to no greater liability than other contractors in other courts." Ibid. Similarly, Jones v. United States, supra, refused a suit by surveyors employed by the Commissioner of Indian Affairs, whose performance had been hindered by the United States's withdrawal of troops from Indian country. "The United States as a contractor," the Claims Court concluded, "cannot be held liable directly or indirectly for the public acts of the United States as a sovereign." Id., at 385.The Government argues that "[t]he relevant question [under these cases] is whether the impact [of governmental action] ... is caused by a law enacted to govern regulatory policy and to advance the general welfare." Brief for United States 45. This understanding assumes that the dual characters of Government as contractor and legislator are never "fused" (within the meaning of Horowitz) so long as the object of the statute is regulatory and meant to accomplish some public good. That is, on the Government's reading, a regulatory object is proof against treating the legislature as having acted to avoid the Government's contractual obligations, in which event the sovereign acts defense would894Opinion of SOUTER, J.not be applicable. But the Government's position is open to serious objection.As an initial matter, we have already expressed our doubt that a workable line can be drawn between the Government's "regulatory" and "nonregulatory" capacities. In the present case, the Government chose to regulate capital reserves to protect FSLIC's insurance fund, much as any insurer might impose restrictions on an insured as a condition of the policy. The regulation thus protected the Government in its capacity analogous to a private insurer, the same capacity in which it entered into supervisory merger agreements to convert some of its financial insurance obligations into responsibilities of private entrepreneurs. In this respect, the supervisory mergers bear some analogy to private contracts for reinsurance.37 On the other hand, there is no question that thrift regulation is, in fact, regulation, and that both the supervisory mergers of the 1980's and the subsequent passage of FIRREA were meant to advance a broader public interest. The inescapable conclusion from all of this is that the Government's "regulatory" and "nonregulatory" capacities were fused in the instances under consideration, and we suspect that such fusion will be so common in the modern regulatory state as to leave a criterion of "regulation" without much use in defining the scope of the sovereign acts doctrine.3837 Nor is there any substance to the claim that these were contracts that only the Government could make. The regulatory capital or net worth requirements at issue applied only to thrifts choosing to carry federal deposit insurance, see Federal Home Loan Bank System, A Guide to the Federal Home Loan Bank System 69 (5th ed. 1987), and institutions choosing to self-insure or to seek private insurance elsewhere would have been free to make similar agreements with private insurers.38 Moreover, if the dissent were correct that the sovereign acts doctrine permits the Government to abrogate its contractual commitments in "regulatory" cases even where it simply sought to avoid contracts it had come to regret, then the Government's sovereign contracting power would be of very little use in this broad sphere of public activity. We rejected a895An even more serious objection is that allowing the Government to avoid contractual liability merely by passing any "regulatory statute" would flout the general principle that, "[w]hen the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals." Lynch v. United States, 292 U. S., at 579.39 Careful attention to the cases shows that the sovereign acts doctrine was meant to serve this principle, not undermine it. In Horowitz, for example, if the defendant had been a private shipper, it would have been entitled to assert the common-law defense of impossibility of performance against Horowitz's claim for breach. Although that defense is traditionally unavailable where the barrier to performance arises from the act of the party seeking discharge, see Restatement (Second) of Contracts § 261; 2 E. Farnsworth, Contracts § 9.6, p. 551 (1990); cf. W R. Grace & Co. v. Rubber Workers, 461 U. S. 757, 767-768, n. 10 (1983), Horowitz held that the "public and general" acts of the sovereign are notvirtually identical argument in Perry v. United States, 294 U. S. 330 (1935), in which Congress had passed a resolution regulating the payment of obligations in gold. We held that the law could not be applied to the Government's own obligations, noting that "the right to make binding obligations is a competence attaching to sovereignty." Id., at 353.39 See also Clearfield Trust Co. v. United States, 318 U. S. 363, 369 (1943) (" 'The United States does business on business terms''') (quoting United States v. National Exchange Bank of Baltimore, 270 U. S. 527, 534 (1926)); Perry v. United States, supra, at 352 (1935) ("When the United States, with constitutional authority, makes contracts, it has rights and incurs responsibilities similar to those of individuals who are parties to such instruments. There is no difference except that the United States cannot be sued without its consent" (citation omitted)); United States v. Bostwick, 94 U. S. 53, 66 (1877) ("The United States, when they contract with their citizens, are controlled by the same laws that govern the citizen in that behalf"); Cooke v. United States, 91 U. S. 389, 398 (1875) (explaining that when the United States "comes down from its position of sovereignty, and enters the domain of commerce, it submits itself to the same laws that govern individuals there").896Opinion of SOUTER, J.attributable to the Government as contractor so as to bar the Government's right to discharge. The sovereign acts doctrine thus balances the Government's need for freedom to legislate with its obligation to honor its contracts by asking whether the sovereign act is properly attributable to the Government as contractor. If the answer is no, the Government's defense to liability depends on the answer to the further question, whether that act would otherwise release the Government from liability under ordinary principles of contract law.40 Neither question can be answered in the Government's favor here.AIf the Government is to be treated like other contractors, some line has to be drawn in situations like the one before us between regulatory legislation that is relatively free of Government self-interest and therefore cognizable for the purpose of a legal impossibility defense and, on the other hand, statutes tainted by a governmental object of self-relief. Such an object is not necessarily inconsistent with a public purpose, of course, and when we speak of governmental "self-interest," we simply mean to identify instances in which the Government seeks to shift the costs of meeting its legitimate public responsibilities to private parties. Cf. Armstrong v. United States, 364 U. S., at 49 (The Government may not "forc[e] some people alone to bear public burdens40 See Jones v. United States, 1 Ct. Cl. 383, 385 (1865) (''Wherever the public and private acts of the government seem to commingle, a citizen or corporate body must by supposition be substituted in its place, and then the question be determined whether the action will lie against the supposed defendant"); O'Neill v. United States, 231 Ct. Cl. 823, 826 (1982) (sovereign acts doctrine applies where, "[w]ere [the] contracts exclusively between private parties, the party hurt by such governing action could not claim compensation from the other party for the governing action"). The dissent ignores these statements (including the statement from Jones, from which case Horowitz drew its reasoning literally verbatim), when it says, post, at 931, that the sovereign acts cases do not emphasize the need to treat the government-as-contractor the same as a private party.897which ... should be borne by the public as a whole"). Hence, while the Government might legitimately conclude that a given contractual commitment was no longer in the public interest, a government seeking relief from such commitments through legislation would obviously not be in a position comparable to that of the private contractor who willy-nilly was barred by law from performance. There would be, then, good reason in such circumstance to find the regulatory and contractual characters of the Government fused together, in Horowitz's terms, so that the Government should not have the benefit of the defense.41Horowitz's criterion of "public and general act" thus reflects the traditional "rule of law" assumption that generality in the terms by which the use of power is authorized will tend to guard against its misuse to burden or benefit the few unjustifiably.42 See, e. g., Hurtado v. California, 110 U. S. 516, 535-536 (1884) ("Law ... must be not a special rule for a particular person or a particular case, but ... '[t]he general law ... ' so 'that every citizen shall hold his life, liberty, property and immunities under the protection of the general41 Our Contract Clause cases have demonstrated a similar concern with governmental self-interest by recognizing that "complete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State's self-interest is at stake." United States Trust Co. of N Y. v. New Jersey, 431 U. S. 1, 26 (1977); see also Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400, 412-413, and n. 14 (1983) (noting that a stricter level of scrutiny applies under the Contract Clause when a State alters its own contractual obligations); cf. Perry, supra, at 350-351 (drawing a "clear distinction" between Congress's power over private contracts and "the power of the Congress to alter or repudiate the substance of its own engagements").42 The generality requirement will almost always be met where, as in Deming, the governmental action "bears upon [the Government's contract] as it bears upon all similar contracts between citizens." Deming v. United States, 1 Ct. Cl. 190, 191 (1865). Deming is less helpful, however, in cases where, as here, the public contracts at issue have no obvious private analogs.898Opinion of SOUTER, J.rules which govern society'" (citation omitted)).43 Hence, governmental action will not be held against the Government for purposes of the impossibility defense so long as the action's impact upon public contracts is, as in Horowitz, merely incidental to the accomplishment of a broader governmental objective. See O'Neill v. United States, 231 Ct. Cl. 823, 826 (1982) (noting that the sovereign acts doctrine recognizes that "the Government's actions, otherwise legal, will occasionally incidentally impair the performance of contracts").44 The greater the Government's self-interest, however, the more suspect becomes the claim that its private contracting partners ought to bear the financial burden of the Government's own improvidence, and where a substantial part of the impact of the Government's action rendering performance impossible falls on its own contractual obligations, the defense will be unavailable. Cf. Sun Oil Co. v. United States, 215 Ct. Cl. 716, 768, 572 F.2d 786, 817 (1978) (rejecting sovereign acts defense where the Secretary of the Interior's actions were "'directed principally and primarily at plaintiffs' contractual right' ").4543 The dissent accuses us of transplanting this due process principle into alien soil, see post, at 931-932. But this Court did not even wait until the Term following Hurtado before applying its principle of generality to a case that, like this one, involved the deprivation of property rights. See Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 708 (1884). More importantly, it would be surprising indeed if the sovereign acts doctrine, resting on the inherent nature of sovereignty, were not shaped by fundamental principles about how sovereigns ought to behave.44 See also Speidel, 51 Geo. L. J., at 539-540 (observing that "the commonly expressed conditions to the availability of the sovereign acts defense" are not only that "the act ... must have been 'public and general,'" but also that "the damage to the contractor must have been caused indirectly"); cf. Exxon Corp. v. Eagerton, 462 U. S. 176, 191-192 (1983) (distinguishing between direct and incidental impairments under the Contract Clause).45 Cf. also Resolution Trust Corporation v. Federal Savings and Loan Insurance Corporation, 25 F.3d 1493, 1501 (CAlO 1994) ("The limits of this immunity [for sovereign acts] are defined by the extent to which the899The dissent would adopt a different rule that the Government's dual roles of contractor and sovereign may never be treated as fused, relying upon Deming's pronouncement that "'[t]he United States as a contractor are not responsible for the United States as a lawgiver.'" Post, at 931 (quoting 1 Ct. Cl., at 191). But that view would simply eliminate the "public and general" requirement, which presupposes that the Government's capacities must be treated as fused when the Government acts in a nongeneral way. Deming itself twice refers to the "general" quality of the enactment at issue, 1 Ct. Cl., at 191, and notes that "[t]he statute bears upon [the governmental contract] as it bears upon all similar contracts between citizens, and affects it in no other way." Ibid. At the other extreme, of course, it is clear that any benefit at all to the Government will not disqualify an act as "public and general"; the silk embargo in Horowitz, for example, had the incidental effect of releasing the Government from its contractual obligation to transport Mr. Horowitz's shipment. Our holding that a governmental act will not be public and general if it has the substantial effect of releasing the Government from its contractual obligations strikes a middle course between these two extremes.46government's failure to perform is the result of legislation targeting a class of contracts to which it is a party"); South Louisiana Grain Services, Inc. v. United States, 1 Cl. Ct. 281, 287, n. 6 (1982) (rejecting sovereign acts defense where the Government agency's actions "were directed specifically at plaintiff's alleged contract performance"). Despite the dissent's predictions, the sun is not, in fact, likely to set on the sovereign acts doctrine. While an increase in regulation by contract will produce examples of the "fusion" that bars the defense, we may expect that other sovereign activity will continue to occasion the sovereign acts defense in cases of incidental effect.46 A different intermediate position would be possible, at least in theory.One might say that a governmental action was not "public and general" under Horowitz if its predominant purpose or effect was avoidance of the Government's contractual commitments. The difficulty, however, of ascertaining the relative intended or resulting impacts on governmental and900Opinion of SOUTER, J.BIn the present case, it is impossible to attribute the exculpatory "public and general" character to FIRREA. Although we have not been told the dollar value of the relief the Government would obtain if insulated from liability under contracts such as these, the attention given to the regulatory contracts prior to passage of FIRREA shows that a substantial effect on governmental contracts is certain. The statute not only had the purpose of eliminating the very accounting gimmicks that acquiring thrifts had been promised, but the specific object of abrogating enough of the acquisition contracts as to make that consequence of the legislation a focal point of the congressional debate.47 Opponents of FIRREA's new capital requirements complained that "[i]n its present form, [FIRREA] would abrogate written agree-purely private contracts persuades us that this test would prove very difficult to apply.47We note that whether or not Congress intended to abrogate supervisory merger agreements providing that supervisory goodwill would count toward regulatory capital requirements has been the subject of extensive litigation in the Courts of Appeals, and that every Circuit to consider the issue has concluded that Congress did so intend. See Transohio Sav. Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 617 (CADC 1992); Carteret Sav. Bank v. Office of Thrift Supervision, 963 F.2d 567, 581-582 (CA3 1992); Security Sav. & Loan v. Director, Office of Thrift Supervision, 960 F.2d 1318, 1322 (CA5 1992); Far West Federal Bank v. Director, Office of Thrift Supervision, 951 F.2d 1093, 1098 (CA9 1991); Guaranty Financial Services, Inc. v. Ryan, 928 F.2d 994, 1006 (CAll 1991); Franklin Federal Sav. Bank v. Director, Office of Thrift Supervision, 927 F.2d 1332, 1341 (CA6), cert. denied, 502 U. S. 937 (1991); cf. Resolution Trust Corporation, supra, at 1502 (observing that "FIRREA's structure leaves little doubt that Congress well knew the crippling effects strengthened capital requirements would have on mergers that relied on supervisory goodwill," but concluding that Congress sought to mitigate the impact by giving OTS authority to exempt thrifts until 1991); Charter Federal Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203, 210 (CA4 1992) (accepting the conclusions of the other Circuits in dictum), cert. denied, 507 U. S. 1004 (1993).901ments made by the U. S. government to thrifts that acquired failing institutions by changing the rules in the middle of the game." 135 Congo Rec. 12145 (1989) (statement of Rep. Ackerman). Several Congressmen observed that, "[s]imply put, [Congress] has reneged on the agreements that the government entered into concerning supervisory goodwill." House Report, at 498 (additional views of Reps. Annunzio, Kanjorski, and Flake).48 A similar focus on the supervisory merger contracts is evident among proponents of the legislation; Representative Rostenkowski, for example, insisted that "the Federal Government should be able to change requirements when they have proven to be disastrous and con-48 See also House Report, at 534 (additional views of Reps. Hiler, Ridge, Bartlett, Dreier, McCandless, Saiki, Baker, and Paxon) ("For the institutions with substantial supervisory goodwill, the bill radically changes the terms of previously negotiated transactions"); id., at 507-508 (additional views of Rep. LaFalce) ("Those institutions which carry intangible assets on their books do so generally under written agreements they have entered into with the U. S. government, agreements which generally state that they cannot be superseded by subsequent regulations"); id., pt. 5, at 27 (additional views of Rep. Hyde) ("[Thrifts] were told that they would be able to carry this goodwill on their books as capital for substantial periods of time .... The courts could well construe these agreements as formal contracts. Now, ... Congress is telling these same thrifts that they cannot count this goodwill toward meeting the new capital standards"); 135 Congo Rec. 12063 (1989) (statement of Rep. Crane) (FIR REA "would require these S&Ls to write off this goodwill in a scant 5 years. This legislation violates the present agreements that these institutions made with the Federal Government"). Although there was less of a focus on the impact of FIRREA on supervisory goodwill in the Senate, at least two Senators noted that the new capital requirements would have the effect of abrogating government contracts. See id., at 9563 (statement of Sen. Hatfield) ("The new tangible capital standards in the legislation specifically exclude supervisory goodwill, and in doing so effectively abrogate agreements made between the Federal Home Loan Bank Board, on behalf of the U. S. Government, and certain healthy thrift institutions"); id., at 18874 (statement of Sen. D'Amato) (asking "whether any future transactions involving failed or failing institutions will be possible after this bill sanctions a wholesale reneging of Federal agency agreements").902Opinion of SOUTER, J.trary to the public interest. The contracts between the savings and loan owners when they acquired failing institutions in the early 1980's are not contracts written in stone." 135 Congo Rec., at 12077.49This evidence of intense concern with contracts like the ones before us suffices to show that FIRREA had the substantial effect of releasing the Government from its own contractual obligations. Congress obviously expected FIRREA to have such an effect, and in the absence of any evidence to the contrary we accept its factual judgment that this would be so. 50 Nor is Congress's own judgment neutralized by the fact, emphasized by the Government, that FIRREA did not formally target particular transactions. Legislation can almost always be written in a formally gen-49 See also House Report, at 545 (Supplemental Views of Reps. Schumer, Morrison, Roukema, Gonzalez, Vento, McMillen, and Hoagland) ("[A]n overriding public policy would be jeopardized by the continued adherence to arrangements which were blithely entered into by the FSLIC"); 135 Congo Rec., at 12062 (statement of Rep. Gonzalez) ("[I]n blunt terms, the Bank Board and FSLIC insurance fund managers entered into bad dealsI might even call them steals"); id., at 11789 (statement of Rep. Saxton) ("In short[,] goodwill agreements were a mistake and as the saying goes ... 'Two wrongs don't make a right' "). These proponents defeated two amendments to FIRREA, proposed by Reps. Quillen and Hyde, which would have given thrifts that had received capital forbearances from thrift regulators varying degrees of protection from the new rules. See Transohio Sav. Bank V. Director, Office of Thrift Supervision, supra, at 616617; see also 135 Congo Rec. 12068 (1989) (statement of Rep. Price) ("[T]he proponents of [the Hyde] amendment say a 'Deal is a Deal' ... But to claim that Congress can never change a regulator's decision ... in the future is simply not tenable"); Franklin Federal Sav. Bank V. Director, Office of Thrift Supervision, supra, at 1340-1341 (reviewing the House debate and concluding that "[nJobody expressed the view that FIRREA did not abrogate forbearance agreements regarding supervisory goodwill" (emphasis in original)).50 Despite the claims of the dissent, our test does not turn upon "some sort of legislative intent," post, at 933. Rather, we view Congress's expectation that the Government's own obligations would be heavily affected simply as good evidence that this was, indeed, the case.903eral way, and the want of an identified target is not much security when a measure's impact nonetheless falls substantially upon the Government's contracting partners. For like reason, it does not answer the legislative record to insist, as the Government does, that the congressional focus is irrelevant because the broad purpose of FIRREA was to "advance the general welfare." Brief for United States 45. We assume nothing less of all congressional action, with the result that an intent to benefit the public can no more serve as a criterion of a "public and general" sovereign act than its regulatory character can.51 While our limited enquiry into the background and evolution of the thrift crisis leaves us with the understanding that Congress acted to protect the public in the FIRREA legislation, the extent to which this reform relieved the Government of its own contractual obligations precludes a finding that the statute is a "public and general" act for purposes of the sovereign acts defense.5251 We have, indeed, had to reject a variant of this argument before. See Lynch v. United States, 292 U. S. 571, 580 (1934) (acknowledging a public need for governmental economy, but holding that "[t]o abrogate contracts, in the attempt to lessen governmental expenditure, would be not the practice of economy, but an act of repudiation"); see also Speidel, 51 Geo. L. J., at 522 (noting that even when "the Government's acts are motivated or required by public necessity ... [t]he few decisions on point seem to reject public convenience or necessity as a defense, particularly where [the Government's action] directly alters the terms of the contract").52 The dissent contends that FIR REA must be a "public and general" act because it "occupies 372 pages in the Statutes at Large, and under 12 substantive titles contains more than 150 numbered sections." Post, at 934. But any act of repudiation can be buried in a larger piece of legislation, and if that is enough to save it then the Government's contracting power will not count for much. To the extent that THE CHIEF JUSTICE relies on the fact that FIRREA's core capital requirements applied to all thrift institutions, we note that neither he nor the Government has provided any indication of the relative incidence of the new statute in requiring capital increases for thrifts subject to regulatory agreements affecting capital and those not so subject.904Opinion of SOUTER, J.CEven if FIRREA were to qualify as "public and general," however, other fundamental reasons would leave the sovereign acts doctrine inadequate to excuse the Government's breach of these contracts. As Horowitz makes clear, that defense simply relieves the Government as contractor from the traditional blanket rule that a contracting party may not obtain discharge if its own act rendered performance impossible. But even if the Government stands in the place of a private party with respect to "public and general" sovereign acts, it does not follow that discharge will always be available, for the common-law doctrine of impossibility imposes additional requirements before a party may avoid liability for breach. As the Restatement puts it,"[w]here, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary." Restatement (Second) of Contracts § 261.See also 2 Farnsworth on Contracts § 9.6, at 543-544 (listing four elements of the impossibility defense). Thus, since the object of the sovereign acts defense is to place the Government as contractor on par with a private contractor in the same circumstances, Horowitz, 267 U. S., at 461, the Government, like any other defending party in a contract action, must show that the passage of the statute rendering its performance impossible was an event contrary to the basic assumptions on which the parties agreed, and must ultimately show that the language or circumstances do not indicate that the Government should be liable in any case. While we do not say that these conditions can never be satisfied when the Government contracts with participants in a regulated industry for particular regulatory treatment, we find that905the Government as such a contractor has not satisfied the conditions for discharge in the present case.1For a successful impossibility defense the Government would have to show that the nonoccurrence of regulatory amendment was a basic assumption of these contracts. See, e. g., Restatement (Second) of Contracts § 261; 2 Farnsworth, supra, § 9.6, at 549-550. The premise of this requirement is that the parties will have bargained with respect to any risks that are both within their contemplation and central to the substance of the contract; as Justice Traynor said, "[i]f [the risk] was foreseeable there should have been provision for it in the contract, and the absence of such a provision gives rise to the inference that the risk was assumed." Lloyd v. Murphy, 25 Cal. 2d 48, 54, 153 P. 2d 47, 50 (1944).53 That53 See also Transatlantic Financing Corp. v. United States, 363 F.2d 312, 315 (CADC 1966) (requiring that the contingency rendering performance impossible be "'something' unexpected"); Companhia de Navegacao Lloyd Brasiliero v. C. G. Blake Co., 34 F.2d 616, 619 (CA2 1929) (L. Hand, J.) (asking "how unexpected at the time [the contract was made] was the event which prevented performance"); see also Kel Kim Corp. v. Central Markets, Inc., 70 N. Y. 2d 900, 902, 524 N. E. 2d 295, 296 (1987) ("[T]he impossibility must be produced by an unanticipated event that could not have been foreseen or guarded against in the contract"); Barbarossa & Sons, Inc. v. Iten Chevrolet, Inc., 265 N. W. 2d 655, 659 (Minn. 1978) (asking "whether the risk of the given contingency was so unusual or unforeseen and would have such severe consequences that to require performance would be to grant the promisee an advantage for which he could not be said to have bargained in making the contract"); Mishara Construction Co. v. Transit-Mixed Concrete Corp., 365 Mass. 122, 129, 310 N. E. 2d 363, 367 (1974) ("The question is ... [w]as the contingency which developed one which the parties could reasonably be thought to have foreseen as a real possibility which could affect performance?"); Krell v. Henry, 2 K. B. 740,752 (1903) ("The test seems to be whether the event which causes the impossibility was or might have been anticipated and guarded against"); 18 W. Jaeger, Williston on Contracts § 1931, p. 8 (3d ed. 1978) ("The important question is whether an unanticipated circumstance has made performance of the promise vitally different from what should reasonably have been906Opinion of SOUTER, J.inference is particularly compelling, where, as here, the contract provides for particular regulatory treatment (and, a fortiori, allocates the risk of regulatory change). Such an agreement reflects the inescapable recognition that regulated industries in the modern world do not live under the law of the Medes and the Persians, and the very fact that such a contract is made at all is at odds with any assumption of regulatory stasis. In this particular case, whether or not the reach of the FIRREA reforms was anticipated by the parties, there is no doubt that some changes in the regulatory structure governing thrift capital reserves were both foreseeable and likely when these parties contracted with the Government, as even the Government agrees. It says in its brief to this Court that "in light of the frequency with which federal capital requirements had changed in the past ... , it would have been unreasonable for Glendale, FSLIC, or the Bank Board to expect or rely upon the fact that those requirements would remain unchanged." Brief for United States 26; see also id., at 3, n. 1 (listing the changes).54 The Federal Circuit panel in this case likewise found that the regulatory capital requirements "have been the subject ofwithin the contemplation of both parties when they entered into the contract. If so, the risk should not fairly be thrown upon the promisor"). Although foreseeability is generally a relevant, but not dispositive, factor, see 2 E. Farnsworth, Contracts § 9.6, at 555-556; Opera Company of Boston, Inc. v. Wolf Trap Foundation for the Performing Arts, 817 F.2d 1094, 1101 (CA4 1987), there is no reason to look further where, as here, the risk was foreseen to be more than minimally likely, went to the central purpose of the contract, and could easily have been allocated in a different manner had the parties chosen to do so, see id., at 1099-1102; 18 Williston on Contracts, supra, § 1953, at 119.54 The Government confirmed this point at oral argument. When asked whether FIR REA's tightening of the regulatory capital standards was "exactly the event that the parties assumed might happen when they made their contracts," the Government responded, "Exactly. Congress had changed capital standards many times over the years." Tr. of Oral Arg. 9.907numerous statutory and regulatory changes over the years," and "changed three times in 1982 alone." 994 F. 2d, at 801.55 Given these fluctuations, and given the fact that a single modification of the applicable regulations could, and ultimately did, eliminate virtually all of the consideration provided by the Government in these transactions, it would be absurd to say that the nonoccurrence of a change in the regulatory capital rules was a basic assumption upon which these contracts were made. See, e. g., Moncrief v. Williston Basin Interstate Pipeline Co., 880 F. Supp. 1495, 1508 (Wyo. 1995); Vollmar v. CSX Transportation, Inc., 705 F. Supp. 1154, 1176 (ED Va. 1989), aff'd, 898 F.2d 413 (CA4 1990).2Finally, any governmental contract that not only deals with regulatory change but allocates the risk of its occurrence will, by definition, fail the further condition of a successful impossibility defense, for it will indeed indicate that the parties' agreement was not meant to be rendered nugatory by a change in the regulatory law. See Restatement55 See, e. g., Garn-St Germain Depository Institutions Act of 1982, Pub.L. 97-320, 96 Stat. 1469 (eliminating any fixed limits to Bank Board discretion in setting reserve requirements); Depository Institutions Deregulation and Monetary Control Act of 1980, Pub. L. 96-221, 94 Stat. 132, 160 (conferring discretionary authority on the Bank Board to set reserve requirements between 3 and 6 percent); 47 Fed. Reg. 3543 (lowering the reserve ratio from 4 to 3 percent); id., at 31859 (excluding certain "contraasset" accounts from reserve calculations); id., at 52961 (permitting thrifts to count appraised equity capital toward reserves); see also Charter Federal Sav. Bank v. Office of Thrift Supervision, 976 F. 2d, at 212 (noting that because "[c]apital requirements have been an evolving part of the regulatory scheme since its inception," the Bank Board "would have expected changes in statutory requirements, including capital requirements"); Carteret Sav. Bank v. Office of Thrift Supervision, 963 F. 2d, at 581 (observing that "[i]n the massively regulated banking industry, ... the rules of the game change with some regularity").908Opinion of SOUTER, J.(Second) of Contracts § 261 (no impossibility defense where the "language or the circumstances" indicate allocation of the risk to the party seeking discharge).56 The mere fact that the Government's contracting agencies (like the Bank Board and FSLIC) could not themselves preclude Congress from changing the regulatory rules does not, of course, stand in the way of concluding that those agencies assumed the risk of such change, for determining the consequences of legal change was the point of the agreements. It is, after all, not uncommon for a contracting party to assume the risk of an event he cannot control, 57 even when that party is an agent of the Government. As the Federal Circuit has recognized, "[Government] contracts routinely include provisions shifting financial responsibility to the Government for events which might occur in the future. That some of these events may be triggered by sovereign government action does not render the relevant contractual provisions any less binding than those which contemplate third party acts, inclement weather56 See also Hughes Communications Galaxy, Inc. v. United States, 998 F. 2d, at 957-959 (rejecting sovereign acts defense where contract was interpreted as expressly allocating the risk of change in governmental policy); Posner & Rosenfield, 6 J. Legal Studies, at 98 (noting that, subject to certain constraints, "[t]he contracting parties' chosen allocation of risk" should always be honored as the most efficient one possible).57 See, e. g., Chicago, M. & St. P. R. Co. v. Hoyt, 149 U. S. 1, 14-15 (1893) ("There can be no question that a party may by an absolute contract bind himself or itself to perform things which subsequently become impossible, or to pay damages for the nonperformance"). This is no less true where the event that renders performance impossible is a change in the governing law. See, e. g., 4 R. Anderson, Anderson on the Uniform Commercial Code § 2-615:34, p. 286 (3d ed. 1983) ("Often in regard to impossibility due to change of law ... there would be no difficulty in a promisor's assuming the risk of the legal possibility of his promise"); 6 A. Corbin, Corbin on Contracts § 1346, p. 432 (1962) ("Just as in other cases of alleged impossibility, the risk of prevention by courts and administrative officers can be thrown upon a contractor by a provision in the contract itself or by reason of established custom and general understanding").909and other force majeure." Hughes Communications Galaxy, Inc. v. United States, 998 F.2d 953, 958-959 (CA Fed. 1993).58As to each of the contracts before us, our agreement with the conclusions of the Court of Federal Claims and the Federal Circuit forecloses any defense of legal impossibility, for those courts found that the Bank Board resolutions, Forbearance Letters, and other documents setting forth the accounting treatment to be accorded supervisory goodwill generated by the transactions were not mere statements of thencurrent regulatory policy, but in each instance were terms in an allocation of risk of regulatory change that was essential to the contract between the parties. See supra, at 861-864. Given that the parties went to considerable lengths in procuring necessary documents and drafting broad integration clauses to incorporate their terms into the contract itself, the Government's suggestion that the parties meant to say only that the regulatory treatment laid out in these documents58 See generally Hills Materials Co. v. Rice, 982 F.2d 514, 516, n. 2 (CA Fed. 1992) ("[T]he [sovereign acts] doctrine certainly does not prevent the government as contractor from affirmatively assuming responsibility for specific sovereign acts"); D & L Construction Co. v. United States, 185 Ct. Cl. 736, 752, 402 F.2d 990, 999 (1968) ("It has long been established that while the United States cannot be held liable directly or indirectly for public acts which it performs as a sovereign, the Government can agree in a contract that if it does exercise a sovereign power, it will pay the other contracting party the amount by which its costs are increased by the Government's sovereign act, and that this agreement can be implied as well as expressed"); Amino Brothers Co. v. United States, 178 Ct. Cl. 515,525,372 F.2d 485, 491 (same), cert. denied, 389 U. S. 846 (1967); Gerhardt F. Meyne Co. v. United States, 110 Ct. Cl. 527, 550, 76 F. Supp. 811, 815 (1948) (same). A common example of such an agreement is mandated by Federal Acquisition Regulation 52.222-43, which requires Government entities entering into certain fixed price service contracts to include a price adjustment clause shifting to the Government responsibility for cost increases resulting from compliance with Department of Labor wage and fringe benefit determinations. 48 CFR § 52.222-43 (1995).910would apply as an initial matter, subject to later change at the Government's election, is unconvincing. See ibid. It would, indeed, have been madness for respondents to have engaged in these transactions with no more protection than the Government's reading would have given them, for the very existence of their institutions would then have been in jeopardy from the moment their agreements were signed.***We affirm the Federal Circuit's ruling that the United States is liable to respondents for breach of contract. Because the Court of Federal Claims has not yet determined the appropriate measure or amount of damages in this case, we remand for further proceedings.It is so ordered

OCTOBER TERM, 1995SyllabusUNITED STATES v. WINSTAR CORP. ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUITNo. 95-865. Argued April 24, 1996-Decided July 1, 1996Realizing that the Federal Savings and Loan Insurance Corporation (FSLIC) lacked the funds to liquidate all of the failing thrifts during the savings and loan crisis of the 1980's, the Federal Home Loan Bank Board (Bank Board) encouraged healthy thrifts and outside investors to take over ailing thrifts in a series of "supervisory mergers." As inducement, the Bank Board agreed to permit acquiring entities to designate the excess of the purchase price over the fair value of identifiable assets as an intangible asset referred to as supervisory goodwill, and to count such goodwill and certain capital credits toward the capital reserve requirements imposed by federal regulations. Congress's subsequent passage of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) forbade thrifts to count goodwill and capital credits in computing the required reserves. Respondents are three thrifts created by way of supervisory mergers. Two of them were seized and liquidated by federal regulators for failure to meet FIR REA's capital requirements, and the third avoided seizure through a private recapitalization. Believing that the Bank Board and FSLIC had promised that they could count supervisory goodwill toward regulatory capital requirements, respondents each filed suit against the United States in the Court of Federal Claims, seeking damages for, inter alia, breach of contract. In granting each respondent summary judgment, the court held that the Government had breached its contractual obligations and rejected the Government's "unmistakability defense"-that surrenders of sovereign authority, such as the promise to refrain from regulatory changes, must appear in unmistakable terms in a contract in order to be enforceable, see Bowen v. Public Agencies Opposed to Social Security Entrapment, 477 U. S. 41, 52-and its "sovereign act" defense-that a "public and general" sovereign act, such as FIRREA's alteration of capital reserve requirements, could not trigger contractual liability, see Horowitz v. United States, 267 U. S. 458, 461. The cases were consolidated, and the en banc Federal Circuit ultimately affirmed.Held: The judgment is affirmed, and the case is remanded. 64 F.3d 1531, affirmed and remanded.JUSTICE SOUTER, joined by JUSTICE STEVENS, JUSTICE O'CONNOR, and JUSTICE BREYER, concluded in Parts II, III, IV, and IV-C that840Syllabusthe United States is liable to respondents for breach of contract. pp. 860-896; 904-910.(a) There is no reason to question the Federal Circuit's conclusion that the Government had express contractual obligations to permit respondents to use goodwill and capital credits in computing their regulatory capital reserves. When the law as to capital requirements changed, the Government was unable to perform its promises and became liable for breach under ordinary contract principles. Pp. 860-871.(b) The unmistakability doctrine is not implicated here because enforcement of the contractual obligation alleged would not block the Government's exercise of a sovereign power. The courts below did not construe these contracts as binding the Government's exercise of authority to modify its regulation of thrifts, and there has been no demonstration that awarding damages for breach would be tantamount to such a limitation. They read the contracts as solely risk-shifting agreements, and respondents seek nothing more than the benefit of promises by the Government to insure them against any losses arising from future regulatory change. Applying the unmistakability doctrine to such contracts not only would represent a conceptual expansion of the doctrine beyond its historical and practical warrant, but also would compromise the Government's practical capacity to make contracts, which is "of the essence of sovereignty" itself, United States v. Bekins, 304 U. S. 27, 51-52. pp. 871-887.(c) The answer to the Government's unmistakability argument also meets its two related ultra vires contentions: that, under the reserved powers doctrine, Congress's power to change the law in the future was an essential attribute of its sovereignty that the Bank Board and FSLIC had no authority to bargain away; and that in any event no such authority can be conferred without an express delegation to that effect. A contract to adjust the risk of subsequent legislative change does not strip the Government of its legislative sovereignty, and the contracts did not surrender the Government's sovereign power to regulate. And there is no serious question that FSLIC (and the Bank Board acting through it) lacked authority to guarantee respondents against losses arising from subsequent regulatory changes. Pp. 888-891.(d) The facts of this case do not warrant application of the sovereign act doctrine. That doctrine balances the Government's need for freedom to legislate with its obligation to honor its contracts by asking whether the sovereign act is properly attributable to the Government as contractor. If the answer is no, the Government's defense to liability depends on whether that act would otherwise release the Government from liability under ordinary contract principles. Pp.891-896.841Full Text of Opinion

1990_89-1909

JUSTICE O'CONNOR delivered the opinion of the Court.This case requires us to clarify the extent of copyright protection available to telephone directory white pages.IRural Telephone Service Company is a certified public utility that provides telephone service to several communities in northwest Kansas. It is subject to a state regulation that requires all telephone companies operating in Kansas to issue annually an updated telephone directory. Accordingly, as a condition of its monopoly franchise, Rural publishes a typical Page 499 U. S. 343 telephone directory, consisting of white pages and yellow pages. The white pages list in alphabetical order the names of Rural's subscribers, together with their towns and telephone numbers. The yellow pages list Rural's business subscribers alphabetically by category, and feature classified advertisements of various sizes. Rural distributes its directory free of charge to its subscribers, but earns revenue by selling yellow pages advertisements.Feist Publications, Inc., is a publishing company that specializes in area-wide telephone directories. Unlike a typical directory, which covers only a particular calling area, Feist's area-wide directories cover a much larger geographical range, reducing the need to call directory assistance or consult multiple directories. The Feist directory that is the subject of this litigation covers 11 different telephone service areas in 15 counties and contains 46,878 white pages listings -- compared to Rural's approximately 7,700 listings. Like Rural's directory, Feist's is distributed free of charge and includes both white pages and yellow pages. Feist and Rural compete vigorously for yellow pages advertising.As the sole provider of telephone service in its service area, Rural obtains subscriber information quite easily. Persons desiring telephone service must apply to Rural and provide their names and addresses; Rural then assigns them a telephone number. Feist is not a telephone company, let alone one with monopoly status, and therefore lacks independent access to any subscriber information. To obtain white pages listings for its area-wide directory, Feist approached each of the 11 telephone companies operating in northwest Kansas and offered to pay for the right to use its white pages listings.Of the 11 telephone companies, only Rural refused to license its listings to Feist. Rural's refusal created a problem for Feist, as omitting these listings would have left a gaping hole in its area-wide directory, rendering it less attractive to potential yellow pages advertisers. In a decision subsequent to that which we review here, the District Court determined that this was precisely the reason Rural refused to license its listings. The refusal was motivated by an unlawful purpose "to extend its monopoly in telephone service to a monopoly in yellow pages advertising." Rural Telephone Service Co. v. Feist Publications, Inc., 737 F. Supp. 610, 622 (Kan.1990).Unable to license Rural's white pages listings, Feist used them without Rural's consent. Feist began by removing several thousand listings that fell outside the geographic range of its area-wide directory, then hired personnel to investigate the 4,935 that remained. These employees verified Page 499 U. S. 344 the data reported by Rural and sought to obtain additional information. As a result, a typical Feist listing includes the individual's street address; most of Rural's listings do not. Notwithstanding these additions, however, 1,309 of the 46,878 listings in Feist's 1983 directory were identical to listings in Rural's 1982-1983 white pages. App. 54 (15-16), 57. Four of these were fictitious listings that Rural had inserted into its directory to detect copying.Rural sued for copyright infringement in the District Court for the District of Kansas, taking the position that Feist, in compiling its own directory, could not use the information contained in Rural's white pages. Rural asserted that Feist's employees were obliged to travel door-to-door or conduct a telephone survey to discover the same information for themselves. Feist responded that such efforts were economically impractical and, in any event, unnecessary, because the information copied was beyond the scope of copyright protection. The District Court granted summary judgment to Rural, explaining that "[c]ourts have consistently held that telephone directories are copyrightable" and citing a string of lower court decisions. 663 F. Supp. 214, 218 (1987). In an unpublished opinion, the Court of Appeals for the Tenth Circuit affirmed "for substantially the reasons given by the district court." App. to Pet. for Cert. 4a, judgt. order reported at 916 F.2d 718 (1990). We granted certiorari, 498 U.S. 808 (1990), to determine whether the copyright in Rural's directory protects the names, towns, and telephone numbers copied by Feist.IIAThis case concerns the interaction of two well-established propositions. The first is that facts are not copyrightable; the other, that compilations of facts generally are. Each of these propositions possesses an impeccable pedigree. That there can be no valid copyright in facts is universally understood. The most fundamental axiom of copyright law is that Page 499 U. S. 345 "[n]o author may copyright his ideas or the facts he narrates." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, 471 U. S. 556 (1985). Rural wisely concedes this point, noting in its brief that "[f]acts and discoveries, of course, are not themselves subject to copyright protection." Brief for Respondent 24. At the same time, however, it is beyond dispute that compilations of facts are within the subject matter of copyright. Compilations were expressly mentioned in the Copyright Act of 1909, and again in the Copyright Act of 1976.There is an undeniable tension between these two propositions. Many compilations consist of nothing but raw data -- i.e., wholly factual information not accompanied by any original written expression. On what basis may one claim a copyright in such a work? Common sense tells us that 100 uncopyrightable facts do not magically change their status when gathered together in one place. Yet copyright law seems to contemplate that compilations that consist exclusively of facts are potentially within its scope.The key to resolving the tension lies in understanding why facts are not copyrightable. The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author. See Harper Row, supra, at 471 U. S. 547-549. Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B] (1990) (hereinafter Nimmer). To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, "no matter how crude, humble or obvious" it might be. Id. § 1.08[C][1]. Originality does not signify novelty; a work may be original even though it closely resembles other works, so long as the similarity is fortuitous, not the result of copying. To illustrate, Page 499 U. S. 346 assume that two poets, each ignorant of the other, compose identical poems. Neither work is novel, yet both are original and, hence, copyrightable. See Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (CA2 1936).Originality is a constitutional requirement. The source of Congress' power to enact copyright laws is Article I, § 8, cl. 8, of the Constitution, which authorizes Congress to "secur[e] for limited Times to Authors . . . the exclusive Right to their respective Writings." In two decisions from the late 19th Century -- The Trade-Mark Cases, 100 U. S. 82 (1879); and Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53 (1884) -- this Court defined the crucial terms "authors" and "writings." In so doing, the Court made it unmistakably clear that these terms presuppose a degree of originality.In The Trade-Mark Cases, the Court addressed the constitutional scope of "writings." For a particular work to be classified "under the head of writings of authors," the Court determined, "originality is required." 100 U.S. at 100 U. S. 94. The Court explained that originality requires independent creation plus a modicum of creativity:"[W]hile the word writings may be liberally construed, as it has been, to include original designs for engraving, prints, &c., it is only such as are original, and are founded in the creative powers of the mind. The writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like."Ibid. (emphasis in original).In Burrow-Giles, the Court distilled the same requirement from the Constitution's use of the word "authors." The Court defined "author," in a constitutional sense, to mean "he to whom anything owes its origin; originator; maker." 111 U.S. at 111 U. S. 58 (internal quotations omitted). As in The Trade-Mark Cases, the Court emphasized the creative component of originality. It described copyright as being limited to "original intellectual conceptions of the author," ibid., and stressed the importance of requiring an author who accuses another of infringement to prove "the existence Page 499 U. S. 347 of those facts of originality, of intellectual production, of thought, and conception." Id. 111 U.S. at 111 U. S. 590.The originality requirement articulated in The Trade-Mark Cases and Burrow-Giles remains the touchstone of copyright protection today. See Goldstein v. California, 412 U. S. 546, 412 U. S. 561-562 (1973). It is the very "premise of copyright law." Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (CA5 1981). Leading scholars agree on this point. As one pair of commentators succinctly puts it: "The originality requirement is constitutionally mandated for all works." Patterson & Joyce, Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L.Rev. 719, 763, n. 155 (1989) (emphasis in original) (hereinafter Patterson & Joyce). Accord, id. at 759-760, and n. 140; Nimmer § 1.06[A] ("originality is a statutory as well as a constitutional requirement"); id. § 1.08[C][1] ("a modicum of intellectual labor . . . clearly constitutes an essential constitutional element").It is this bedrock principle of copyright that mandates the law's seemingly disparate treatment of facts and factual compilations. "No one may claim originality as to facts." Id. § 2.11[A], p. 2-157. This is because facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. To borrow from Burrow-Giles, one who discovers a fact is not its "maker" or "originator." 111 U.S. at 111 U. S. 58. "The discoverer merely finds and records." Nimmer § 2.03[E]. Census-takers, for example, do not "create" the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them. Denicola, Copyright in Collections of Facts: A Theory for the Protection of Nonfiction Literary Works, 81 Colum.L.Rev. 516, 525 (1981) (hereinafter Denicola). Census data therefore do not trigger copyright, because these data are not "original" in the constitutional sense. Nimmer Page 499 U. S. 348 § 2.03[E]. The same is true of all facts -- scientific, historical, biographical, and news of the day. "[T]hey may not be copyrighted, and are part of the public domain available to every person." Miller, supra, at 1369.Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws. Nimmer §§ 2.11[D], 3.03; Denicola 523, n. 38. Thus, even a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement. See Harper & Row, 471 U.S. at 471 U. S. 547. Accord, Nimmer § 3.03.This protection is subject to an important limitation. The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author. Patterson & Joyce 800-802; Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 Colum.L.Rev. 1865, 1868, and n. 12 (1990) (hereinafter Ginsburg). Thus, if the compilation author clothes facts with an original collocation of words, he or she may be able to claim a copyright in this written expression. Others may copy the underlying facts from the publication, but not the precise words used to present them. In Harper & Row, for example, we explained that President Ford could not prevent others from copying bare historical facts from his autobiography, see 471 U.S. at 471 U. S. 556-557, but that he could prevent others from copying his "subjective descriptions and portraits of public figures." Page 499 U. S. 349 Id. at 471 U. S. 563. Where the compilation author adds no written expression, but rather lets the facts speak for themselves, the expressive element is more elusive. The only conceivable expression is the manner in which the compiler has selected and arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are eligible for copyright protection. See Patry, Copyright in Compilations of Facts (or Why the "White Pages" Are Not Copyrightable), 12 Com. & Law 37, 64 (Dec.1990) (hereinafter Patry). No matter how original the format, however, the facts themselves do not become original through association. See Patterson & Joyce 776.This inevitably means that the copyright in a factual compilation is thin. Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement. As one commentator explains it:"[N]o matter how much original authorship the work displays, the facts and ideas it exposes are free for the taking. . . . [T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas."Ginsburg 1868.It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme." Harper & Row, 471 U.S. at 471 U. S. 589 (dissenting opinion). It is, rather, "the essence of copyright," ibid. and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." Art. I, § 8, cl. 8. Accord, Twentieth Century Music Corp. v. Aiken, 422 U. S. 151, 422 U. S. 156 (1975). To this end, copyright assures authors the right to their original Page 499 U. S. 350 expression, but encourages others to build freely upon the ideas and information conveyed by a work. Harper & Row, supra, 471 U.S. at 471 U. S. 556-557. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.This Court has long recognized that the fact/expression dichotomy limits severely the scope of protection in fact-based works. More than a century ago, the Court observed:"The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book."Baker v. Selden, 101 U. S. 99, 101 U. S. 103 (1880). We reiterated this point in Harper & Row:"[N]o author may copyright facts or ideas. The copyright is limited to those aspects of the work -- termed 'expression' -- that display the stamp of the author's originality.""[C]opyright does not prevent subsequent users from copying from a prior author's work those constituent elements that are not original -- for example . . . facts, or materials in the public domain -- as long as such use does not unfairly appropriate. the author's original contributions."471 U.S. at 471 U. S. 547-548 (citation omitted).This, then, resolves the doctrinal tension: Copyright treats facts and factual compilations in a wholly consistent manner. Facts, whether alone or as part of a compilation, are not original, and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to Page 499 U. S. 351 the particular selection or arrangement. In no event may copyright extend to the facts themselves.BAs we have explained, originality is a constitutionally mandated prerequisite for copyright protection. The Court's decisions announcing this rule predate the Copyright Act of 1909, but ambiguous language in the 1909 Act caused some lower courts temporarily to lose sight of this requirement.The 1909 Act embodied the originality requirement, but not as clearly as it might have. See Nimmer § 2.01. The subject matter of copyright was set out in § 3 and § 4 of the Act. Section 4 stated that copyright was available to "all the writings of an author." 35 Stat. 1076. By using the words "writings" and "author" -- the same words used in Article I, § 8 of the Constitution and defined by the Court in The Trade-Mark Cases and Burrow-Giles -- the statute necessarily incorporated the originality requirement articulated in the Court's decisions. It did so implicitly, however, thereby leaving room for error.Section 3 was similarly ambiguous. It stated that the copyright in a work protected only "the copyrightable component parts of the work." It thus stated an important copyright principle, but failed to identify the specific characteristic -- originality -- that determined which component parts of a work were copyrightable and which were not.Most courts construed the 1909 Act correctly, notwithstanding the less-than-perfect statutory language. They understood from this Court's decisions that there could be no copyright without originality. See Patterson & Joyce 760-761. As explained in the Nimmer treatise:"The 1909 Act neither defined originality nor even expressly required that a work be 'original' in order to command protection. However, the courts uniformly inferred the requirement from the fact that copyright protection may only be claimed by 'authors.' . . . It was reasoned that, since an author is 'the . . . Page 499 U. S. 352 creator, originator,' it follows that a work is not the product of an author unless the work is original."Nimmer § 2.01 (footnotes omitted) (citing cases).But some courts misunderstood the statute. See, e.g., Leon v. Pacific Telephone & Telegraph Co., 91 F.2d 484 (CA9 1937); Jeweler's Circular Publishing Co. v. Keystone Publishing Co., 281 F. 83 (CA2 1922). These courts ignored § 3 and § 4, focusing their attention instead on § 5 of the Act. Section 5, however, was purely technical in nature: it provided that a person seeking to register a work should indicate on the application the type of work, and it listed 14 categories under which the work might fall. One of these categories was "[b]ooks, including composite and cyclopoedic works, directories, gazetteers, and other compilations." § 5(a). Section 5 did not purport to say that all compilations were automatically copyrightable. Indeed, it expressly disclaimed any such function, pointing out that "the subject matter of copyright [i]s defined in section four." Nevertheless, the fact that factual compilations were mentioned specifically in § 5 led some courts to infer erroneously that directories and the like were copyrightable per se, "without any further or precise showing of original -- personal -- authorship." Ginsburg 1895.Making matters worse, these courts developed a new theory to justify the protection of factual compilations. Known alternatively as "sweat of the brow" or "industrious collection," the underlying notion was that copyright was a reward for the hard work that went into compiling facts. The classic formulation of the doctrine appeared in Jeweler's Circular Publishing Co., 281 F. at 88:"The right to copyright a book upon which one has expended labor in its preparation does not depend upon whether the materials which he has collected consist or not of matters which are publici juris, or whether such materials show literary skill or originality, either in thought or in language, or anything more than industrious Page 499 U. S. 353 collection. The man who goes through the streets of a town and puts down the names of each of the inhabitants, with their occupations and their street number acquires material of which he is the author."(Emphasis added).The "sweat of the brow" doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement -- the compiler's original contributions -- to the facts themselves. Under the doctrine, the only defense to infringement was independent creation. A subsequent compiler was "not entitled to take one word of information previously published," but rather had to "independently wor[k] out the matter for himself, so as to arrive at the same result from the same common sources of information." Id. at 88-89 (internal quotations omitted). "Sweat of the brow" courts thereby eschewed the most fundamental axiom of copyright law -- that no one may copyright facts or ideas. See Miller v. Universal City Studios, Inc., 650 F.2d at 1372 (criticizing "sweat of the brow" courts because "ensur[ing] that later writers obtain the facts independently . . . is precisely the scope of protection given . . . copyrighted matter, and the law is clear that facts are not entitled to such protection").Decisions of this Court applying the 1909 Act make clear that the statute did not permit the "sweat of the brow" approach. The best example is International News Service v. Associated Press, 248 U. S. 215 (1918). In that decision, the Court stated unambiguously that the 1909 Act conferred copyright protection only on those elements of a work that were original to the author. International News Service had conceded taking news reported by Associated Press and publishing it in its own newspapers. Recognizing that § 5 of the Act specifically mentioned "[p]eriodicals, including newspapers," § 5(b), the Court acknowledged that news articles were copyrightable. Id. at 248 U. S. 234. It flatly rejected, however, the notion that the copyright in an article extended to Page 499 U. S. 354 the factual information it contained:"[T]he news element -- the information respecting current events contained in the literary production -- is not the creation of the writer, but is a report of matters that ordinarily are publici juris; it is the history of the day."Ibid. *Without a doubt, the "sweat of the brow" doctrine flouted basic copyright principles. Throughout history, copyright law has "recognize[d] a greater need to disseminate factual works than works of fiction or fantasy." Harper & Row, 471 U.S. at 471 U. S. 563. Accord, Gorman, Fact or Fancy: The Implications for Copyright, 29 J.Copyright Soc. 560, 563 (1982). But "sweat of the brow" courts took a contrary view; they handed out proprietary interests in facts and declared that authors are absolutely precluded from saving time and effort by relying upon the facts contained in prior works. In truth, "[i]t is just such wasted effort that the proscription against the copyright of ideas and facts . . . [is] designed to prevent." Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 310 (CA2 1966), cert. denied 385 U.S. 1009 (1967)."Protection for the fruits of such research . . . may, in certain circumstances, be available under a theory of unfair competition. But to accord copyright protection on this basis alone distorts basic copyright principles in that it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of 'writings' by 'authors.'"Nimmer § 3.04, p. 3-23 (footnote omitted).C"Sweat of the brow" decisions did not escape the attention of the Copyright Office. When Congress decided to overhaul the copyright statute and asked the Copyright Office to study existing problems, see Mills Music, Inc. v. Snyder, 469 U. S. 153, 469 U. S. 159 (1985), the Copyright Office promptly recommended Page 499 U. S. 355 that Congress clear up the confusion in the lower courts as to the basic standards of copyrightability. The Register of Copyrights explained in his first report to Congress that "originality" was a "basic requisit[e]" of copyright under the 1909 Act, but that "the absence of any reference to [originality] in the statute seems to have led to misconceptions as to what is copyrightable matter." Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong., 1st Sess., p. 9 (H. Judiciary Comm. Print 1961). The Register suggested making the originality requirement explicit. Ibid.Congress took the Register's advice. In enacting the Copyright Act of 1976, Congress dropped the reference to "all the writings of an author" and replaced it with the phrase "original works of authorship." 17 U.S.C. § 102(a). In making explicit the originality requirement, Congress announced that it was merely clarifying existing law:"The two fundamental criteria of copyright protection [are] originality and fixation in tangible form. . . . The phrase 'original works of authorship,' which is purposely left undefined, is intended to incorporate without change the standard of originality established by the courts under the present [1909] copyright statute."H.R.Rep. No. 94-1476, p. 51 (1976) (emphasis added) (hereinafter H.R.Rep.); S.Rep. No. 94-473, p. 50 (1975), U.S.Code Cong. & Admin.News 1976, pp. 5659, 5664 (emphasis added) (hereinafter S.Rep.). This sentiment was echoed by the Copyright Office: "Our intention here is to maintain the established standards of originality. . . ." Supplementary Report of the Register of Copyrights on the General Revision of U.S. Copyright Law, 89th Cong., 1st Sess., Part 6, p. 3 (H. Judiciary Comm. Print 1965) (emphasis added).To ensure that the mistakes of the "sweat of the brow" courts would not be repeated, Congress took additional measures. For example, § 3 of the 1909 Act had stated that copyright protected only the "copyrightable component parts" of a work, but had not identified originality as the basis for distinguishing Page 499 U. S. 356 those component parts that were copyrightable from those that were not. The 1976 Act deleted this section and replaced it with § 102(b), which identifies specifically those elements of a work for which copyright is not available:"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."§ 102(b) is universally understood to prohibit any copyright in facts. Harper Row, supra, at 471 U. S. 547, 471 U. S. 556. Accord, Nimmer § 2.03[E] (equating facts with "discoveries"). As with § 102(a), Congress emphasized that § 102(b) did not change the law, but merely clarified it:"Section 102(b) in no way enlarges or contracts the scope of copyright protection under the present law. Its purpose is to restate . . . that the basic dichotomy between expression and idea remains unchanged."H.R.Rep. at 57; S.Rep. at 54, U.S.Code Cong. & Admin.News 1976, p. 5670.Congress took another step to minimize confusion by deleting the specific mention of "directories . . . and other compilations" in § 5 of the 1909 Act. As mentioned, this section had led some courts to conclude that directories were copyrightable per se, and that every element of a directory was protected. In its place, Congress enacted two new provisions. First, to make clear that compilations were not copyrightable per se, Congress provided a definition of the term "compilation." Second, to make clear that the copyright in a compilation did not extend to the facts themselves, Congress enacted 17 U.S.C. § 103.The definition of "compilation" is found in § 101 of the 1976 Act. It defines a "compilation" in the copyright sense as"a work formed by the collection and assembly of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work, as a whole, constitutes an original work of authorship."(Emphasis added.) Page 499 U. S. 357The purpose of the statutory definition is to emphasize that collections of facts are not copyrightable per se. It conveys this message through its tripartite structure, as emphasized above by the italics. The statute identifies three distinct elements, and requires each to be met for a work to qualify as a copyrightable compilation: (1) the collection and assembly of preexisting material, facts, or data; (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination, or arrangement, of an "original" work of authorship. "[T]his tripartite conjunctive structure is self-evident, and should be assumed to accurately express the legislative purpose.'" Patry 51, quoting Mills Music, 469 U.S. at 469 U. S. 164.At first glance, the first requirement does not seem to tell us much. It merely describes what one normally thinks of as a compilation -- a collection of preexisting material, facts, or data. What makes it significant is that it is not the sole requirement. It is not enough for copyright purposes that an author collects and assembles facts. To satisfy the statutory definition, the work must get over two additional hurdles. In this way, the plain language indicates that not every collection of facts receives copyright protection. Otherwise, there would be a period after "data."The third requirement is also illuminating. It emphasizes that a compilation, like any other work, is copyrightable only if it satisfies the originality requirement ("an original work of authorship"). Although § 102 states plainly that the originality requirement applies to all works, the point was emphasized with regard to compilations to ensure that courts would not repeat the mistake of the "sweat of the brow" courts by concluding that fact-based works are treated differently and measured by some other standard. As Congress explained it, the goal was to"make plain that the criteria of copyrightable subject matter stated in section 102 apply with full force to works . . . containing preexisting material."H.R.Rep. at 57; S.Rep. at 55. Page 499 U. S. 358The key to the statutory definition is the second requirement. It instructs courts that, in determining whether a fact-based work is an original work of authorship, they should focus on the manner in which the collected facts have been selected, coordinated, and arranged. This is a straightforward application of the originality requirement. Facts are never original, so the compilation author can claim originality, if at all, only in the way the facts are presented. To that end, the statute dictates that the principal focus should be on whether the selection, coordination, and arrangement are sufficiently original to merit protection.Not every selection, coordination, or arrangement will pass muster. This is plain from the statute. It states that, to merit protection, the facts must be selected, coordinated, or arranged "in such a way" as to render the work as a whole original. This implies that some "ways" will trigger copyright, but that others will not. See Patry 57, and n. 76. Otherwise, the phrase "in such a way" is meaningless, and Congress should have defined "compilation" simply as "a work formed by the collection and assembly of preexisting materials or data that are selected, coordinated, or arranged." That Congress did not do so is dispositive. In accordance with "the established principle that a court should give effect, if possible, to every clause and word of a statute," Moskal v. United States, 498 U. S. 103, 498 U. S. 109-110 (1990) (internal quotations omitted), we conclude that the statute envisions that there will be some fact-based works in which the selection, coordination, and arrangement are not sufficiently original to trigger copyright protection.As discussed earlier, however, the originality requirement is not particularly stringent. A compiler may settle upon a selection or arrangement that others have used; novelty is not required. Originality requires only that the author make the selection or arrangement independently (i.e., without copying that selection or arrangement from another work), and that it display some minimal level of creativity. Presumably, Page 499 U. S. 359 the vast majority of compilations will pass this test, but not all will. There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent. See generally Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 188 U. S. 251 (1903) (referring to "the narrowest and most obvious limits"). Such works are incapable of sustaining a valid copyright. Nimmer § 2.01[B].Even if a work qualifies as a copyrightable compilation, it receives only limited protection. This is the point of § 103 of the Act. Section 103 explains that "[t]he subject matter of copyright . . . includes compilations," § 103(a), but that copyright protects only the author's original contributions -- not the facts or information conveyed:"The copyright in a compilation . . . extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material."§ 103(b).As § 103 makes clear, copyright is not a tool by which a compilation author may keep others from using the facts or data he or she has collected."The most important point here is one that is commonly misunderstood today: copyright . . . has no effect one way or the other on the copyright or public domain status of the preexisting material."H.R.Rep. at 57; S.Rep. at 55, U.S.Code Cong. & Admin.News 1976, p. 5670. The 1909 Act did not require, as "sweat of the brow" courts mistakenly assumed, that each subsequent compiler must start from scratch, and is precluded from relying on research undertaken by another. See, e.g., Jeweler's Circular publishing Co., 281 F., at 88-89. Rather, the facts contained in existing works may be freely copied, because copyright protects only the elements that owe their origin to the compiler -- the selection, coordination, and arrangement of facts.In summary, the 1976 revisions to the Copyright Act leave no doubt that originality, not "sweat of the brow," is the Page 499 U. S. 360 touchstone of copyright protection in directories and other fact-based works. Nor is there any doubt that the same was true under the 1909 Act. The 1976 revisions were a direct response to the Copyright Office's concern that many lower courts had misconstrued this basic principle, and Congress emphasized repeatedly that the purpose of the revisions was to clarify, not change, existing law. The revisions explain with painstaking clarity that copyright requires originality, § 102(a); that facts are never original, § 102(b); that the copyright in a compilation does not extend to the facts it contains, § 103(b); and that a compilation is copyrightable only to the extent that it features an original selection, coordination, or arrangement, § 101.The 1976 revisions have proven largely successful in steering courts in the right direction. A good example is Miller v. Universal City Studios, Inc., 650 F.2d at 1369-1370:"A copyright in a directory . . . is properly viewed as resting on the originality of the selection and arrangement of the factual material, rather than on the industriousness of the efforts to develop the information. Copyright protection does not extend to the facts themselves, and the mere use of information contained in a directory without a substantial copying of the format does not constitute infringement."(Citation omitted.) Additionally, the Second Circuit, which almost 70 years ago issued the classic formulation of the "sweat of the brow" doctrine in Jeweler's Circular Publishing Co., has now fully repudiated the reasoning of that decision. See, e.g., Financial Information, Inc. v. Moody's Investors Service, Inc., 808 F.2d 204, 207 (CA2 1986), cert. denied, 484 U.S. 820 (1987); Financial Information, Inc. v. Moody's Investors Service, Inc., 751 F.2d 501, 510 (CA2 1984) (Newman, J., concurring); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (CA2 1980). Even those scholars who believe that "industrious collection" should be rewarded seem to recognize that this is beyond the scope of existing copyright law. See Denicola 516 ("the very vocabulary of copyright is ill-suited Page 499 U. S. 361 to analyzing property rights in works of nonfiction"); id. at 520-521, 525; Ginsburg 1867, 1870.IIIThere is no doubt that Feist took from the white pages of Rural's directory a substantial amount of factual information. At a minimum, Feist copied the names, towns, and telephone numbers of 1,309 of Rural's subscribers. Not all copying, however, is copyright infringement. To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. See Harper & Row, 471 U.S. at 471 U. S. 548. The first element is not at issue here; Feist appears to concede that Rural's directory, considered as a whole, is subject to a valid copyright because it contains some foreword text, as well as original material in its yellow pages advertisements. See Brief for Petitioner 18; Pet. for Cert. 9.The question is whether Rural has proved the second element. In other words, did Feist, by taking 1,309 names, towns, and telephone numbers from Rural's white pages, copy anything that was "original" to Rural? Certainly, the raw data does not satisfy the originality requirement. Rural may have been the first to discover and report the names, towns, and telephone numbers of its subscribers, but this data does not "ow[e] its origin'" to Rural. Burrow-Giles, 111 U.S. at 111 U. S. 58. Rather, these bits of information are uncopyrightable facts; they existed before Rural reported them, and would have continued to exist if Rural had never published a telephone directory. The originality requirement"rule[s] out protecting . . . names, addresses, and telephone numbers of which the plaintiff, by no stretch of the imagination, could be called the author."Patterson & Joyce 776.Rural essentially concedes the point by referring to the names, towns, and telephone numbers as "preexisting material." Brief for Respondent 17. Section 103(b) states explicitly Page 499 U. S. 362 that the copyright in a compilation does not extend to "the preexisting material employed in the work."The question that remains is whether Rural selected, coordinated, or arranged these uncopyrightable facts in an original way. As mentioned, originality is not a stringent standard; it does not require that facts be presented in an innovative or surprising way. It is equally true, however, that the selection and arrangement of facts cannot be so mechanical or routine as to require no creativity whatsoever. The standard of originality is low, but it does exist. See Patterson & Joyce 760, n. 144 ("While this requirement is sometimes characterized as modest, or a low threshold, it is not without effect") (internal quotations omitted; citations omitted). As this Court has explained, the Constitution mandates some minimal degree of creativity, see The Trade-Mark Cases, 100 U.S. at 100 U. S. 94, and an author who claims infringement must prove "the existence of . . . intellectual production, of thought, and conception." Burrow-Giles, supra, 111 U.S. at 111 U. S. 59-60.The selection, coordination, and arrangement of Rural's white pages do not satisfy the minimum constitutional standards for copyright protection. As mentioned at the outset, Rural's white pages are entirely typical. Persons desiring telephone service in Rural's service area fill out an application, and Rural issues them a telephone number. In preparing its white pages, Rural simply takes the data provided by its subscribers and lists it alphabetically by surname. The end product is a garden-variety white pages directory, devoid of even the slightest trace of creativity.Rural's selection of listings could not be more obvious: it publishes the most basic information -- name, town, and telephone number -- about each person who applies to it for telephone service. This is "selection" of a sort, but it lacks the modicum of creativity necessary to transform mere selection into copyrightable expression. Rural expended sufficient effort Page 499 U. S. 363 to make the white pages directory useful, but insufficient creativity to make it original.We note in passing that the selection featured in Rural's white pages may also fail the originality requirement for another reason. Feist points out that Rural did not truly "select" to publish the names and telephone numbers of its subscribers; rather, it was required to do so by the Kansas Corporation Commission as part of its monopoly franchise. See 737 F. Supp. at 612. Accordingly, one could plausibly conclude that this selection was dictated by state law, not by Rural.Nor can Rural claim originality in its coordination and arrangement of facts. The white pages do nothing more than list Rural's subscribers in alphabetical order. This arrangement may, technically speaking, owe its origin to Rural; no one disputes that Rural undertook the task of alphabetizing the names itself. But there is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course. See Brief for Information Industry Association et al. as Amici Curiae 10 (alphabetical arrangement "is universally observed in directories published by local exchange telephone companies"). It is not only unoriginal, it is practically inevitable. This time-honored tradition does not possess the minimal creative spark required by the Copyright Act and the Constitution.We conclude that the names, towns, and telephone numbers copied by Feist were not original to Rural, and therefore were not protected by the copyright in Rural's combined white and yellow pages directory. As a constitutional matter, copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity. Rural's white pages, limited to basic subscriber information and arranged alphabetically, fall short of the mark. As a statutory matter, 17 U.S.C. § 101 does not afford protection Page 499 U. S. 364 from copying to a collection of facts that are selected, coordinated, and arranged in a way that utterly lacks originality. Given that some works must fail, we cannot imagine a more likely candidate. Indeed, were we to hold that Rural's white pages pass muster, it is hard to believe that any collection of facts could fail.Because Rural's white pages lack the requisite originality, Feist's use of the listings cannot constitute infringement. This decision should not be construed as demeaning Rural's efforts in compiling its directory, but rather as making clear that copyright rewards originality, not effort. As this Court noted more than a century ago,"'great praise may be due to the plaintiffs for their industry and enterprise in publishing this paper, yet the law does not contemplate their being rewarded in this way.'"Baker v. Selden, 101 U.S. at 101 U. S. 105.The judgment of the Court of Appeals isReversed

U.S. Supreme CourtFeist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991)Feist Publications, Inc. v. Rural Telephone Service Company, Inc.No. 89-1909Argued Jan. 9, 1991Decided March 27, 1991499 U.S. 340SyllabusRespondent Rural Telephone Service Company is a certified public utility providing telephone service to several communities in Kansas. Pursuant to state regulation, Rural publishes a typical telephone directory, consisting of white pages and yellow pages. It obtains data for the directory from subscribers, who must provide their names and addresses to obtain telephone service. Petitioner Feist Publications, Inc., is a publishing company that specializes in area-wide telephone directories covering a much larger geographic range than directories such as Rural's. When Rural refused to license its white pages listings to Feist for a directory covering 11 different telephone service areas, Feist extracted the listings it needed from Rural's directory without Rural's consent. Although Feist altered many of Rural's listings, several were identical to listings in Rural's white pages. The District Court granted summary judgment to Rural in its copyright infringement suit, holding that telephone directories are copyrightable. The Court of Appeals affirmed.Held: Rural's white pages are not entitled to copyright, and therefore Feist's use of them does not constitute infringement. Pp. 499 U. S. 344-364.(a) Article I, § 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable. Although a compilation of facts may possess the requisite originality because the author typically chooses which facts to include, in what order to place them, and how to arrange the data so that readers may use them effectively, copyright protection extends only to those components of the work that are original to the author, not to the facts themselves. This fact/expression dichotomy severely limits the scope of protection in fact-based works. Pp. 499 U. S. 344-351.(b) The Copyright Act of 1976 and its predecessor, the Copyright Act of 1909, leave no doubt that originality is the touchstone of copyright protection in directories and other fact-based works. The 1976 Act explains that copyright extends to "original works of authorship," 17 U.S.C. § 102(a), and that there can be no copyright in facts, § 102(b). Page 499 U. S. 341 A compilation is not copyrightable per se, but is copyrightable only if its facts have been "selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship." § 101 (emphasis added). Thus, the statute envisions that some ways of selecting, coordinating, and arranging data are not sufficiently original to trigger copyright protection. Even a compilation that is copyrightable receives only limited protection, for the copyright does not extend to facts contained in the compilation. § 103(b). Lower courts that adopted a "sweat of the brow" or "industrious collection" test -- which extended a compilation's copyright protection beyond selection and arrangement to the facts themselves -- misconstrued the 1909 Act and eschewed the fundamental axiom of copyright law that no one may copyright facts or ideas. Pp. 499 U. S. 351-361.(c) Rural's white pages do not meet the constitutional or statutory requirements for copyright protection. While Rural has a valid copyright in the directory as a whole because it contains some forward text and some original material in the yellow pages, there is nothing original in Rural's white pages. The raw data are uncopyrightable facts, and the way in which Rural selected, coordinated, and arranged those facts is not original in any way. Rural's selection of listings -- subscribers' names, towns, and telephone numbers -- could not be more obvious, and lacks the modicum of creativity necessary to transform mere selection into copyrightable expression. In fact, it is plausible to conclude that Rural did not truly "select" to publish its subscribers' names and telephone numbers, since it was required to do so by state law. Moreover, there is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course. Pp. 499 U. S. 361-364.916 F.2d 718 (CA 10 1990), reversed.O'CONNOR J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, MARSHALL, STEVENS, SCALIA, KENNEDY, and SOUTER, JJ., joined. BLACKMUN, J., concurred in the judgment. Page 499 U. S. 342

1986_86-234

JUSTICE WHITE delivered the opinion of the Court.This action involves the prosecution of petitioner Gray, a former public official of the Commonwealth of Kentucky, and petitioner McNally, a private individual, for alleged violation of the federal mail fraud statute, 18 U.S.C. § 1341. [Footnote 1] The prosecution's principal theory of the case, which was accepted by the courts below, was that petitioners' participation in a self-dealing patronage scheme defrauded the citizens and government of Kentucky of certain "intangible rights," such as the right to have the Commonwealth's affairs conducted honestly. We must consider whether the jury charge permitted a conviction for conduct not within the scope of the mail fraud statute.We accept for the sake of argument the Government's view of the evidence, as follows. Petitioners and a third individual, Howard P. "Sonny" Hunt, were politically active in the Democratic Party in the Commonwealth of Kentucky during the 1970's. After Democrat Julian Carroll was elected Governor of Kentucky in 1974, Hunt was made chairman of the state Democratic Party and given de facto control over selecting the insurance agencies from which the Commonwealth would purchase its policies. In 1975, the Wombwell Insurance Company of Lexington, Kentucky (Wombwell), which since 1971 had acted as the Commonwealth's agent for securing a workmen's compensation policy, agreed with Hunt that, in exchange for a continued agency relationship, it would share any resulting commissions in excess of $50,000 a year with other insurance agencies specified by him. The commissions in question were paid to Wombwell by the large insurance Page 483 U. S. 353 companies from which it secured coverage for the Commonwealth.From 1975 to 1979, Wombwell funneled $851,000 in commissions to 21 separate insurance agencies designated by Hunt. Among the recipients of these payments was Seton Investments, Inc. (Seton), a company controlled by Hunt and petitioner Gray and nominally owned and operated by petitioner McNally.Gray served as Secretary of Public Protection and Regulation from 1976 to 1978, and also as Secretary of the Governor's Cabinet from 1977 to 1979. Prior to his 1976 appointment, he and Hunt established Seton for the sole purpose of sharing in the commissions distributed by Wombwell. Wombwell paid some $200,000 to Seton between 1975 and 1979, and the money was used to benefit Gray and Hunt. Pursuant to Hunt's direction, Wombwell also made excess commission payments to the Snodgrass Insurance Agency, which in turn gave the money to McNally.On account of the foregoing activities, Hunt was charged with and pleaded guilty to mail and tax fraud and was sentenced to three years' imprisonment. Petitioners were charged with one count of conspiracy and seven counts of mail fraud, six of which were dismissed before trial. [Footnote 2] The remaining mail fraud count was based on the mailing of a commission check to Wombwell by the insurance company from which it had secured coverage for the State. This count alleged that petitioners had devised a scheme (1) to defraud the citizens and government of Kentucky of their right to have the Commonwealth's affairs conducted honestly, and (2) to obtain, directly and indirectly, money and other things Page 483 U. S. 354 of value by means of false pretenses and the concealment of material facts. [Footnote 3] The conspiracy count alleged that petitioners had (1) conspired to violate the mail fraud statute through the scheme just described, and (2) conspired to defraud the United States by obstructing the collection of federal taxes.After informing the jury of the charges in the indictment, [Footnote 4] the District Court instructed that the scheme to defraud the Page 483 U. S. 355 citizens of Kentucky and to obtain money by false pretenses and concealment could be made out by either of two sets of findings: (1) that Hunt had de facto control over the award of the workmen's compensation insurance contract to Wombwell from 1975 to 1979; that he directed payments of commissions from this contract to Seton, an entity in which he had an ownership interest, without disclosing that interest to persons in state government whose actions or deliberations could have been affected by the disclosure; and that petitioners, or either of them, aided and abetted Hunt in that scheme; or (2) that Gray, in either of his appointed positions, had supervisory authority regarding the Commonwealth's workmen's compensation insurance at a time when Seton received commissions; that Gray had an ownership interest in Seton and did not disclose that interest to persons in state government whose actions or deliberations could have been affected by that disclosure; and that McNally aided and abetted Gray (the latter finding going only to McNally's guilt).The jury convicted petitioners on both the mail fraud and conspiracy counts, and the Court of Appeals affirmed the convictions. 790 F.2d 1290 (CA6 1986). In affirming the substantive mail fraud conviction, the court relied on a line of decisions from the Courts of Appeals holding that the mail fraud statute proscribes schemes to defraud citizens of their intangible rights to honest and impartial government. See, e.g., United States v. Mandel, 591 F.2d 1347 (CA4 1979), aff'd in relevant part, 602 F.2d 653 (en banc), cert. denied, 445 U.S. 961 (1980). Under these cases, a public official owes a fiduciary duty to the public, and misuse of his office for private gain is a fraud. Also, an individual without formal office may be held to be a public fiduciary if others rely on him "because of a special relationship in the government'" and he in fact makes governmental decisions. 790 F.2d at 1296 (quoting United States v. Margiotta, 688 F.2d 108, 122 (CA2 1982), cert. denied, 461 U.S. 913 (1983)). The Court of Appeals held that Hunt was such a Page 483 U. S. 356 fiduciary because he"substantially participated in governmental affairs and exercised significant, if not exclusive, control over awarding the workmen's compensation insurance contract to Wombwell and the payment of monetary kickbacks to Seton."790 F.2d at 1296.We granted certiorari, 479 U.S. 1005 (1986), and now reverse.The mail fraud statute clearly protects property rights, but does not refer to the intangible right of the citizenry to good government. As first enacted in 1872, as part of a recodification of the postal laws, the statute contained a general proscription against using the mails to initiate correspondence in furtherance of "any scheme or artifice to defraud." The sponsor of the recodification stated, in apparent reference to the antifraud provision, that measures were needed"to prevent the frauds which are mostly gotten up in the large cities . . . by thieves, forgers, and rapscallions generally, for the purpose of deceiving and fleecing the innocent people in the country. [Footnote 5]"Insofar as the sparse legislative history reveals anything, it indicates that the original impetus behind the mail fraud statute was to protect the people from schemes to deprive them of their money or property.Durland v. United States, 161 U. S. 306 (1896), the first case in which this Court construed the meaning of the phrase "any scheme or artifice to defraud," held that the phrase is to be interpreted broadly insofar as property rights are concerned, but did not indicate that the statute had a more extensive reach. The Court rejected the argument that"the statute reaches only such cases as, at common law, would Page 483 U. S. 357 come within the definition of 'false pretences,' in order to make out which there must be a misrepresentation as to some existing fact, and not a mere promise as to the future."Id. at 161 U. S. 312. Instead, it construed the statute to "includ[e] everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future." Id. at 161 U. S. 313. Accordingly, the defendant's use of the mails to sell bonds which he did not intend to honor was within the statute. The Court explained that"[i]t was with the purpose of protecting the public against all such intentional efforts to despoil, and to prevent the post office from being used to carry them into effect, that this statute was passed. . . ."Id. at 161 U. S. 314.Congress codified the holding of Durland in 1909, and in doing so gave further indication that the statute's purpose is protecting property rights. [Footnote 6] The amendment added the words "or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises" after the original phrase "any scheme or artifice to defraud." Act of Mar. 4, 1909, ch. 321, § 215, 35 Stat. 1130. [Footnote 7] The new Page 483 U. S. 358 language is based on the statement in Durland that the statute reaches "everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future." 161 U.S. at 161 U. S. 313. However, instead of the phrase "everything designed to defraud," Congress used the words "[any scheme or artifice] for obtaining money or property."After 1909, therefore, the mail fraud statute criminalized schemes or artifices "to defraud" or "for obtaining money or property by means of false or fraudulent pretenses, representation, or promises. . . ." Because the two phrases identifying the proscribed schemes appear in the disjunctive, it is arguable that they are to be construed independently, and that the money-or-property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property. This is the approach that has been taken by each of the Courts of Appeals that has addressed the issue: schemes to defraud include those designed to deprive individuals, the people, or the government of intangible rights, such as the right to have public officials perform their duties honestly. See, e.g., United States v. Clapps, 732 F.2d 1148, 1152 (CA3 1984); United States v. States, 488 F.2d 761, 764 (CA8 1973).As the Court long ago stated, however, the words "to defraud" commonly refer "to wronging one in his property rights by dishonest methods or schemes," and "usually signify the deprivation of something of value by trick, deceit, chicane or overreaching." Hammerschmidt v. United States, 265 U. S. 182, 265 U. S. 188 (1924). [Footnote 8] The codification of the holding in Durland Page 483 U. S. 359 in 1909 does not indicate that Congress was departing from this common understanding. As we see it, adding the second phrase simply made it unmistakable that the statute reached false promises and misrepresentations as to the future, as well as other frauds involving money or property.We believe that Congress' intent in passing the mail fraud statute was to prevent the use of the mails in furtherance of such schemes. The Court has often stated that, when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress Page 483 U. S. 360 has spoken in clear and definite language. United States v. Bass, 404 U. S. 336, 404 U. S. 347 (1971); United States v. Universal C.I.T. Credit Corp., 344 U. S. 218, 344 U. S. 221-222 (1952). See also Rewis v. United States, 401 U. S. 808, 401 U. S. 812 (1971). As the Court said in a mail fraud case years ago: "There are no constructive offenses; and before one can be punished, it must be shown that his case is plainly within the statute." Fasulo v. United States, 272 U. S. 620, 272 U. S. 629 (1926). Rather than construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good government for local and state officials, we read § 1341 as limited in scope to the protection of property rights. If Congress desires to go further, it must speak more clearly than it has.For purposes of this action, we assume that Hunt, as well as Gray, was a state officer. The issue is thus whether a state officer violates the mail fraud statute if he chooses an insurance agent to provide insurance for the State, but specifies that the agent must share its commissions with other named insurance agencies, in one of which the officer has an ownership interest and hence profits when his agency receives part of the commissions. We note that, as the action comes to us, there was no charge and the jury was not required to find that the Commonwealth itself was defrauded of any money or property. It was not charged that, in the absence of the alleged scheme, the Commonwealth would have paid a lower premium or secured better insurance. Hunt and Gray received part of the commissions, but those commissions were not the Commonwealth's money. Nor was the jury charged that, to convict, it must find that the Commonwealth was deprived of control over how its money was spent. Indeed, the premium for insurance would have been paid to some agency, and what Hunt and Gray did was to assert control that the Commonwealth might not otherwise Page 483 U. S. 361 have made over the commissions paid by the insurance company to its agent. [Footnote 9] Although the Government now relies in part on the assertion that petitioners obtained property by means of false representations to Wombwell, Brief for United States 20-21, n. 17, there was nothing in the jury charge that required such a finding. We hold, therefore, that the jury instruction on the substantive mail fraud count permitted a conviction for conduct not within the reach of § 1341.The Government concedes that, if petitioners' substantive mail fraud convictions are reversed, their conspiracy convictions should also be reversed. Id. at 36, n. 28.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 CourtMcNally v. United States, 483 U.S. 350 (1987)McNally v. United StatesNo. 86-234Argued April 22, 1987Decided June 24, 1987*483 U.S. 350SyllabusThe federal mail fraud statute, 18 U.S.C. § 1341, prohibits the use of the mails to execute"any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises."Petitioners Gray, a former Kentucky official, and McNally, a private individual, along with one Howard Hunt, the former chairman of the Commonwealth's Democratic Party, were charged with violating § 1341 by devising a scheme to defraud the Commonwealth's citizens and government of their "intangible right" to have the Commonwealth's affairs conducted honestly, and to obtain money by means of false pretenses and the concealment of material facts. After informing the jury of the charges, the District Court instructed the jury that the defendants' alleged scheme could be made out either by finding: (1) that Hunt had de facto control over the award of the Commonwealth's workmen's compensation insurance contract; that he obtained commission payments from the company awarded this contract which were mailed to a company he owned and controlled with petitioners, without disclosing his ownership interest to commonwealth officials; and that petitioners aided in the scheme; or (2) that Gray had supervisory authority over the insurance when his company received payments; that he did not disclose his interest in the company to commonwealth officials; and that McNally aided and abetted him. The jury convicted petitioners, and the Court of Appeals affirmed, relying on a line of decisions holding that § 1341 proscribes schemes to defraud citizens of their intangible rights to honest and impartial government.Held: The jury charge permitted a conviction for conduct not within the reach of § 1341. Pp. 483 U. S. 356-361.(a) The language and legislative history of § 1341 demonstrate that it is limited in scope to the protection of money or property rights, and does not extend to the intangible right of the citizenry to good government. The argument that, because the statutory phrases "to defraud" and "for obtaining money or property by means of false or fraudulent pretenses, representations, or promises" appear in the disjunctive, they should be construed independently, so that "a scheme or artifice to defraud" Page 483 U. S. 351 may include a scheme designed to deprive parties of intangible rights is not persuasive. The words "to defraud" commonly refer to wronging one in his property rights by dishonest methods, and there is nothing to indicate that Congress meant to depart from this common understanding when it enacted § 1341 in its present form. Rather, the statute was amended to include the second phrase simply to make it clear that it reaches false promises and misrepresentations as to the future as well as other frauds involving money or property. Pp. 483 U. S. 356-360.(b) A state officer does not violate § 1341 if he chooses an insurance agency to provide the State's insurance, but specifies that the agency must share its commissions with another agency in which the officer has an ownership interest, and hence profits from the commissions. Here, there was no charge and the jury was not required to find that the Commonwealth itself was defrauded of any money or property or would have paid a lower premium or secured better insurance in the absence of the alleged scheme. In fact, the commissions Hunt and Gray received were not the Commonwealth's money. Nor was the jury charged that, to convict, it must find that the Commonwealth was deprived of control over how its money was spent. Indeed, it would have paid the insurance premium to some agency, and Hunt and Gray simply asserted control that the Commonwealth might not otherwise have made over the payment of insurance commissions. Moreover, although the Government relies in part on the assertion that petitioners obtained property by means of false representations to the company awarded the insurance contract, there was nothing in the charge that required such a finding. Pp. 483 U. S. 360-361.790 F.2d 1290, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in Parts I, II, and III of which O'CONNOR, J., joined, post p. 483 U. S. 362. Page 483 U. S. 352

1972_72-10

MR. JUSTICE MARSHALL delivered the opinion of the Court.This case raises three distinct questions concerning the scope of federal jurisdiction. We are called upon to decide whether a federal cause of action lies against a municipality under 42 U.S.C. §§ 1983 and 1988 for the actions of its officers which violate an individual's federal civil rights where the municipality is subject to such liability under state law. In addition, we must decide whether, in a federal civil rights suit brought against a municipality's police officers, a federal court may refuse to exercise pendent jurisdiction over a state law claim against the municipality based on a theory of vicarious liability, and whether a county of the State of California is a citizen of the State for purposes of federal diversity jurisdiction. Page 411 U. S. 695In February, 1970, petitioners Moor and Rundle [Footnote 1] filed separate actions in the District Court for the Northern District of California seeking to recover actual and punitive damages for injuries allegedly suffered by them as a result of the wrongful discharge of a shotgun by an Alameda County, California, deputy sheriff engaged in quelling a civil disturbance. [Footnote 2] In their complaints, petitioners named the deputy sheriff, plus three other deputies, the sheriff, and the County of Alameda as defendants. The complaints alleged both federal and state causes of action.The federal causes of action against the individual defendants were based on allegations of conspiracy and intent to deprive petitioners of their constitutional rights of free speech and assembly, and to be secure from the deprivation of life and liberty without due process of law. These federal causes of action against the individual defendants were alleged to arise under, inter alia, 42 U.S.C. §§ 1983 and 1985, and jurisdiction was asserted to exist under 28 U.S.C. § 1343. Page 411 U. S. 696As to the County, both the federal and state law claims were predicated on the contention that, under the California Tort Claims Act of 1963, Cal.Govt.Code § 815.2(a), the County was vicariously liable for the acts of its deputies and sheriff committed in violation of the Federal Civil Rights Act. [Footnote 3] The federal causes of action against the County were based on 42 U.S.C. §§ 1983 and 1988, [Footnote 4] and thus jurisdiction was also alleged to exist with respect to these claims under 28 U.S.C. § 1343. Both petitioners argued before the District Court that it had authority to hear their state law claims against the County under the doctrine of pendent jurisdiction. In addition, petitioner Moor who alleged that he was a citizen of Illinois, asserted in his complaint that the District Court also had jurisdiction over his state law claim against the County on the basis of diversity of citizenship. [Footnote 5]Initially, the defendants answered both complaints denying liability, although the County admitted that it had consented to be sued. [Footnote 6] Thereafter, the County, arguing lack of jurisdiction, moved to dismiss all of the claims against it in the Rundle suit and to dismiss the federal civil rights claims in the Moor suit. The County relied upon this Court's decision in Monroe v. Pape, 365 Page 411 U. S. 697 U.S. 167, 365 U. S. 187-191 (1961), as having resolved that a municipality is not a "person" within the meaning of 42 U.S.C. § 1983, and, on this basis alone, it considered the civil rights claims against it to be barred. Moreover, in Rundle, the County argued that, since there was before the District Court no claim against the County as to which there existed an independent basis of federal jurisdiction, it would be inappropriate to exercise pendent jurisdiction over the state law claim against it.The District Court agreed with the County's arguments and granted the motion to dismiss the Rundle suit. It, however, postponed ruling in the Moor case pending consideration of possible diversity jurisdiction over the state law claim against the County in that case. Subsequently, the County sought to have the state law claim in Moor dismissed on the basis that it was not a citizen of California for purposes of diversity jurisdiction. While this motion was pending, a motion for reconsideration of the order dismissing the County was filed in the Rundle case. Following argument with respect to the jurisdictional issues, the District Court entered an order in Moor holding that there was no diversity jurisdiction and incorporating by reference an order filed in the Rundle case which again rejected petitioners' civil rights and pendent jurisdiction arguments. Upon the request of the petitioners, the District Court, finding "no just reason for delay," entered a final judgment in both suits with respect to the County under Fed.Rule Civ.Proc. 54(b), thereby allowing immediate appeal of its jurisdictional decisions. [Footnote 7] Page 411 U. S. 698The two cases were then consolidated for purposes of appeal, and the Court of Appeals for the Ninth Circuit affirmed the District Court with respect to all three issues raised by the two cases, 458 F.2d 1217 (1972). In addition to rejecting petitioners' arguments concerning the existence of pendent jurisdiction and diversity jurisdiction over the state law claims, the Court of Appeals disagreed in particular with petitioners' contention that § 1988 alone established a federal cause of action against the County for their injuries on the basis of California law which created vicarious liability against the County for the actions of its officers that violated petitioners' federal civil rights. Because of the importance of the questions decided by the Court of Appeals, we granted certiorari. 409 U.S. 841 (1972). For reasons stated below, we now affirm that portion of the Court of Appeals' decision which held that petitioners had failed to establish a cause of action against the County under 42 U.S.C. §§ 1983 and 1988, and that the trial court properly refused to exercise pendent jurisdiction over the state law claims. We reverse, however, its holding that the County is not a citizen of California for purposes of federal diversity jurisdiction.IWe consider first petitioners' argument concerning the existence of a federal cause of action against the County under 42 U.S.C. § 1988. Petitioners' thesis is, in essence, that. under California law. the County has been made vicariously liable for the conduct of its sheriff and deputy sheriffs which violates the Federal Civil Rights Acts [Footnote 8] and that, in the context of this case, § 1988 authorizes the adoption of such state law into federal law in order to render the Civil Rights Acts fully effective, Page 411 U. S. 699 thereby creating a federal cause of action against the County.Section 1988 reads, in relevant part, as follows:"The jurisdiction in civil . . . matters conferred on the district courts by [the Civil Rights Acts] . . . . for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies . . . the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil . . . cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause. . . ."The starting point for petitioners' argument is this Court's decision in Monroe v. Pape, 365 U. S. 167 (1961). There, the Court held that 42 U.S.C. § 1983, which was derived from § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, was intended to provide private parties a cause of action for abuses of official authority which resulted in the deprivation of constitutional rights, privileges, and immunities. [Footnote 9] At the same time, however, the Page 411 U. S. 700 Court held that a municipality is not a "person" within the meaning of § 1983. Id. at 365 U. S. 187-191. Petitioners do not squarely take issue with the holding in Monroe concerning the status under § 1983 of public entities such as the County. Instead, petitioners argue that, since the construction placed upon § 1983 in Monroe with respect to municipalities effectively restricts the injured party in a case such as this to recovery from the individual defendants, the section cannot be considered to be fully "adapted" to the protection of federal civil rights or is "deficient in the provisions necessary to furnish suitable remedies" within the meaning of § 1988. In petitioners' view, the personal liability of the individual defendants under § 1983 is, as a practical matter, inadequate because public officers are frequently judgment-proof. [Footnote 10] Thus, petitioners contend it is appropriate under § 1988 for this Court to adopt into federal law the California law of vicarious liability for municipalities -- that is, the "common law, as modified . . . by . . . statutes of the State wherein the court having jurisdiction of such civil . . . cause is held." Having thus introduced the State's law of vicarious liability into federal law through § 1988, they then assert that there is federal jurisdiction to hear their federal claims against Page 411 U. S. 701 the County under 28 U.S.C. § 1343(4). Section 1343(4) grants jurisdiction to the federal district courts to hear any civil action"commenced by any person . . . [t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights . . . ,"and § 1988 is, petitioners say, such an "Act of Congress."Petitioners in this case are not asking us to create a substantive federal liability without legislative direction. See United States v. Standard Oil Co., 332 U. S. 301 (1947); cf. United States v. Gilman, 347 U. S. 507 (1954). It is their view, rather, that, in § 1988, Congress has effectively mandated the adoption of California's law of vicarious liability into federal law. It is, of course, not uncommon for Congress to direct that state law be used to fill the interstices of federal law. [Footnote 11] But, in such circumstances, our function is necessarily limited. For although Congress may have assigned to the process of judicial implication the task of selecting in any particular case appropriate rules from state law to supplement established federal law, the application of that process is restricted to those contexts in which Congress has, in fact, authorized resort to state and common law. [Footnote 12] Cf. Richards v. United States, 369 U. S. 1, 369 U. S. 7-8 (1962). Considering § 1988 from this perspective, we Page 411 U. S. 702 are unable to conclude that Congress intended that section, standing alone, to authorize the federal courts to borrow entire causes of action from state law.First, petitioners' argument completely overlooks the full language of the statute. Section 1988 does not enjoy the independent stature of an "Act of Congress providing for the protection of civil rights," 28 U.S.C. § 1343(4). Rather, as is plain on the face of the statute, the section is intended to complement the various acts which do create federal causes of action for the violation of federal civil rights. [Footnote 13] Thus, § 1988 specifies that"[t]he jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter [Civil Rights] and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in oonformity with the laws of the United States."But, inevitably, existing federal law will not cover every issue that may arise in the context of a federal civil rights action. [Footnote 14] Thus, § 1988 proceeds to authorize Page 411 U. S. 703 federal courts, where federal law is unsuited or insufficient "to furnish suitable remedies," to look to principles of the common law, as altered by state law, so long as such principles are not inconsistent with the Constitution and laws of the United States.The role of § 1988 in the scheme of federal civil rights legislation is amply illustrated by our decision in Sullivan v. Little Hunting Park, 396 U. S. 229 (1969). In Sullivan, the Court was confronted with a question as to the availability of damages in a suit concerning discrimination in the disposition of property brought pursuant to § 1982 which makes no express provision for a damages remedy. [Footnote 15] The Court concluded that "[t]he existence of a statutory right implies the existence of all necessary and appropriate remedies," id. at 396 U. S. 239, and proceeded to construe § 1988, which provides the governing standard in such a case, to mean"that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. . . . The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired."Id. at 396 U. S. 240. [Footnote 16] Properly viewed, then, § 1988 instructs federal courts as to what law to apply in causes of actions arising under federal civil rights acts. But we do not believe that the section, without more, was meant to authorize the wholesale importation into federal law of state causes Page 411 U. S. 704 of action [Footnote 17] -- not even one purportedly deigned for the protection of federal civil rights.This view is fully confirmed by the legislative history of the statute: Section 1988 was first enacted as a portion of § 3 of the Civil Rights Act of April 9, 1866, c. 31, 14 Stat. 27. Section 1 of that Act is the source of 42 U.S.C. § 182, the provision under which suit was brought in Sullivan. The initial portion of § 3 of the Page 411 U. S. 705 Act established federal jurisdiction to hear, among other things, civil actions brought to enforce § 1. Section 3 then went on to provide that the jurisdiction thereby established should be exercised in conformity with federal law where suitable and with reference to the common law, as modified by state law, where federal law is deficient. [Footnote 18] Considered in context, this latter portion of § 3, which has become § 1988 and has been made applicable to the Civil Rights Acts generally, was obviously intended to do nothing more than to explain the source of law to be applied in actions brought to enforce the substantive provisions of the Act, including § l. [Footnote 19] To Page 411 U. S. 706 hold otherwise would tear § 1988 loose from its roots in § 3 of the 1866 Civil Rights Act. This we will not do.There is yet another reason why petitioner' reliance upon § 1988 must fail. The statute expressly limits the authority granted federal courts to look to the common law, as modified by state law, to instances in which that law "is not inconsistent with the Constitution and laws of the United States." Yet if we were to look to California law imposing vicarious liability upon municipalities, as petitioners would have us do, the result would effectively be to subject the County to federal court suit on a federal civil rights claim. Such a result would seem to be less than consistent with this Court's prior holding in Monroe v. Pape, 365 U.S. at 365 U. S. 187-191, that Congress did not intend to render municipal corporations liable to federal civil rights claims under § 1983. See, e.g., Brown v. Town of Caliente, 392 F.2d 546 (CA9 1968); Ries v. Lynskey, 452 F.2d 172, 174-175 (CA7 1971); Brown v. Ames, 346 F. Supp. 1173, 1176 (Minn.1972); Wilcher v. Gain, 311 F. Supp. 754, 755 (ND Cal.1970).Petitioners argue, however, that there is, in fact, no inconsistency between the interpretation placed upon Page 411 U. S. 707 § 1983 in Monroe and the interpretation of § 1988 for which they now argue here. They suggest that Monroe involved no question of the susceptibility to suit of a municipality which has surrendered its common law immunity under state law; the interpretation of § 1983 in Monroe was, in their view, premised upon an assumption that the municipality had not been deprived of its immunity. And Congress, petitioners argue, did not intend to exclude from the reach of § 1983 municipalities that have surrendered their immunity from suit under state law. Thus, they conclude that, in a case such as this, where the municipality has lost its immunity, there is no inconsistency between § 1983 and the introduction of the state cause of action against the County into federal law under § 1988.In effect, petitioners are arguing that their particular actions may be properly brought against this County on the basis of § 1983. But whatever the factual premises of Monroe, we find the construction which petitioners seek to impose upon § 1983 concerning the status of municipalities as "persons" to be simply untenable.In Monroe, the Court, in examining the legislative evolution of the Ku Klux Klan Act of April 20, 1871, which is the source of § 1983, pointed out that Senator Sherman introduced an amendment which would have added to the Act a new section providing expressly for municipal liability in civil actions based on the deprivation of civil rights. Although the amendment was passed by the Senate, [Footnote 20] it was rejected by the House, [Footnote 21] as was another version included in the first Conference Committee report. [Footnote 22] Page 411 U. S. 708 The proposal for municipal liability encountered strongly held views in the House on the part of both its supporters and opponents, [Footnote 23] but the root of the proposal's difficulties stemmed from serious legislative concern as to Congress' constitutional power to impose liability on political subdivisions of the States. [Footnote 24] Page 411 U. S. 709As in Monroe, we have no occasion here to"reach the constitutional question whether Congress has the power to make municipalities liable for acts of its officers that violate the civil rights of individuals."36 U.S. at 36 U. S. 191. For, in interpreting the statute, it is not our task to consider whether Congress was mistaken in 1871 in its view of the limits of its power over municipalities; rather, we must construe the statute in light of the impressions under which Congress did in fact, act, see Ries v. Lynskey, 452 F.2d at 17. In this respect, it cannot be doubted that the House arrived at the firm conclusion that Congress lacked the constitutional power to impose liability upon municipalities, and thus, according to Representative Poland, the Senate Conferees were informed by the House Conferees that the "section imposing liability upon towns and counties must go out, or we should fail to agree." [Footnote 25] To save the Act, the proposal for municipal liability was Page 411 U. S. 710 given up. [Footnote 26] It may be that, even in 1871, municipalities which were subject to suit under state law did not pose in the minds of the legislators the constitutional problems that caused the defeat of the proposal. Yet, nevertheless, the proposal was rejected in toto, and, from this action, we cannot infer any congressional intent other than to exclude all municipalities -- regardless of whether or not their immunity has been lifted by state law -- from the civil liability created in the Act of April 20, 1871, and § 1983. [Footnote 27] Thus, § 1983 is unavailable to these petitioners insofar as they seek to sue the County. And § 1988, in light of the express limitation contained within it, cannot be used to accomplish what Congress clearly refused to do in enacting § 1983.Accordingly, we conclude that the District Court properly granted the motion to dismiss the causes of action brought against the County by petitioners under § 1983 and § 1988.IIAlthough unable to establish a federal cause of action against the County on the basis of the California law Page 411 U. S. 711 imposing vicarious liability on a municipality for the actions of its officers that violate federal civil rights, petitioners contend that the District Court nevertheless had jurisdiction to hear their state law claims of vicarious liability against the County under the doctrine of pendent jurisdiction.Petitioners rely principally upon the decision in Mine Workers v. Gibbs, 383 U. S. 715, 383 U. S. 725 (1966), where the Court eschewed the "unnecessarily grudging" approach of Hurn v. Oursler, 289 U. S. 238 (1933), to the doctrine of pendent jurisdiction. Gibbs involved a suit brought under both federal and state law by a contractor to recover damages allegedly suffered as a result of a secondary boycott imposed upon it by a union. There existed independent federal jurisdiction as to the federal claim, but there was no independent basis of jurisdiction to support the state law claim. Nevertheless, the Court concluded that federal courts could exercise pendent jurisdiction over the state law claim.In deciding the question of pendent jurisdiction, the Gibbs Court indicated that there were two distinct issues to be considered. First, there is the issue of judicial power to hear the pendent claim. In this respect, the Court indicated that the requisite "power" exists"whenever there is a claim 'arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ,' U.S.Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.' The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. . . . The state and federal claims must derive from a common nucleus of operative fact. But Page 411 U. S. 712 if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole."Id. at 383 U. S. 725 (footnotes omitted). Yet even if there exists power to hear the pendent claim,"[i]t has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present, a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them. . . ."Id. at 383 U. S. 726. By way of explanation of the considerations which should inform a district court's discretion, the Court in Gibbs suggested, inter alia, that"[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law,"id., and that"reasons independent of jurisdictional considerations, such as the likelihood of jury confusion in treating divergent legal theories of relief, [may] justify separating state and federal claims for trial,"id. at 383 U. S. 727. In Gibbs, the Court found that the exercise of pendent jurisdiction over the state law claims was proper both as a matter of power and discretion.In these cases, there is no question that petitioners' complaints stated substantial federal causes of action against the individual defendants under 42 U.S.C. § 1983. See Monroe v. Pape, 365 U. S. 167 (1961). Nor is there any dispute that the federal claims against the individual defendants and the state claims against the individual defendants may be said to involve "a common nucleus of operative fact." But, beyond this, Page 411 U. S. 713 there is a significant difference between Gibbs and these cases. For the exercise of pendent jurisdiction over the claims against the County would require us to bring an entirely new party -- a new defendant -- into each litigation. Gibbs, of course, involved no such problem of a "pendent party," [Footnote 28] that is, of the addition of a party which is implicated in the litigation only with respect to the pendent state law claim and not also with respect to any claim as to which there is an independent basis of federal jurisdiction. Faced with this distinction, the courts below concluded that the exercise of pendent jurisdiction in the context of these cases was inappropriate as a matter of both judicial power and discretion.As to the question of judicial power, the District Court and Court of Appeals considered themselves bound by the Ninth Circuit's previous decision in Hymer v. Chai, 407 F.2d 136 (1969), wherein the court refused to permit the joinder of a pendent plaintiff. Petitioners vigorously attack the decision in Hymer as at odds with the clear trend of lower federal court authority since this Court's decision in Gibbs. It is true that numerous decisions throughout the courts of appeals since Gibbs have recognized the existence of judicial power to hear pendent claims involving pendent parties where "the entire action before the court comprises but one constitutional case'" as defined in Gibbs. [Footnote 29] Hymer stands virtually alone against this post-Gibbs trend in the courts Page 411 U. S. 714 of appeals, [Footnote 30] and, significantly, Hymer was largely based on the Court of Appeals' earlier decision in Kataoka v. May Department Stores Co., 115 F.2d 521 (CA9 1940), a decision which predated Gibbs and the expansion of the concept of pendent jurisdiction beyond the narrow limits set by Hurn v. Oursler, supra. Moreover, the exercise of federal jurisdiction over claims against parties as to whom there exists no independent basis for federal jurisdiction finds substantial analogues in the joinder of new parties under the well established doctrine of ancillary jurisdiction in the context of compulsory counterclaims Page 411 U. S. 715 under Fed.Rules Civ.Proc. 13(a) and 13(h), [Footnote 31] and in the context of third-party claims under Fed.Rule Civ.Proc. 14(a). [Footnote 32] At the same time, the County counsels that the Court should not be quick to sweep state law claims against an entirely new party within the jurisdiction of the lower federal courts which are courts of limited jurisdiction -- a jurisdiction subject, within the limits of the Constitution, to the will of Congress, not the courts. [Footnote 33] Whether there exists judicial power to hear the state law clams against the County is, in short, a subtle and complex question with far-reaching implications. But we do not consider it appropriate to resolve this difficult issue in the present case, for we have concluded that, even assuming, arguendo, the existence of power to hear the claim, the District Court, in exercise of its legitimate discretion, properly declined to join the claims against the County in these suits.The District Court indicated, and the Court of Appeals agreed, that exercise of jurisdiction over the state law claims was inappropriate for at least two reasons. First, the District Court pointed out that it "would be Page 411 U. S. 716 called upon to resolve difficult questions of California law upon which state court decisions are not legion." [Footnote 34] In addition, the court felt that,"with the introduction of a claim against the County under the California Tort Claims Act, with the special defenses available to the County, the case"which will be tried to a jury, "could become unduly complicated." [Footnote 35] As is evident from this Court's decision in Gibbs, 383 U.S. at 383 U. S. 726-727, the unsettled nature of state law and the likelihood of jury confusion were entirely appropriate factors for the District Court to consider. And those factors had to be weighed by the District Court against the economy which might be achieved by trying the petitioners' claims against both the police and the County in single proceedings. In light of the broad discretion which district courts must be given in evaluating such matters, we cannot say that the District Judge in thee cases struck the balance improperly. [Footnote 36] We therefore hold that Page 411 U. S. 717 the District Court did not err, as a matter of discretion, in refusing to exercise pendent jurisdiction over petitioners' claims against the County.IIIThere remains, however, the question whether the District Court had jurisdiction over petitioner Moor's state law claim against the County on the basis of diversity of citizenship, 28 U.S.C. § 1332(a). Petitioner Moor, a citizen of Illinois, contends that the County is a citizen of California for the purposes of federal diversity jurisdiction. The District Court concluded otherwise, however. For, while acknowledging that there exists a substantial body of contrary authority, it considered itself"bound to recognize and adhere to the Ninth Circuit decisions which hold that California counties and other subdivisions of the State are not 'citizens' for diversity purposes, [Footnote 37]"see Miller v. County of Los Angeles, 341 F.2d 964 (CA9 1965); Lowe v. Manhattan Beach City School Dist., 222 F.2d 258 (CA9 1955). Not surprisingly, the Court of Appeals also adhered to its prior precedents.There is no question that a State is not a "citizen" for purposes of the diversity jurisdiction. That proposition has been established at least since this Court's decision in Postal Telegraph Cable Co. v. Alabama, 155 U. S. 482, 155 U. S. 487 (1894). See also Minnesota v. Northern Securities Co., 194 U. S. 48, 194 U. S. 63 (1904). At the same time, however, this Court has recognized that a political subdivision of a State, unless it is simply "the arm or alter ego of the State," [Footnote 38] is a citizen of the State for diversity purposes. Page 411 U. S. 718 See, e.g., Bullard v. City of Cisco, 290 U. S. 179 (1933); Loeb v. Columbia Township Trustees, 179 U. S. 472, 179 U. S. 485-486 (1900); Chicot County v. Sherwood, 148 U. S. 529, 148 U. S. 533-534 (1893); Lincoln County v. Luning, 133 U. S. 529 (1890); Cowles v. Mercer County, 7 Wall. 118 (1869). The original source of this latter principle was the rule that corporations are citizens of the State in which they are formed, and are subject, as such, to the diversity jurisdiction of the federal courts. [Footnote 39] See, e.g., 43 U. S. C. & C. R. Co. v. Letson, 2 How. 497, 43 U. S. 558-559 (1844); Barrow S.S. Co. v. Kane, 170 U. S. 100, 170 U. S. 106 (1898). Thus, in the seminal case of Cowles v. Mercer County, supra, the Court held without hesitation that an Illinois county, which, under Illinois law, was a "body politic and corporate" and had been authorized to sue and be sued, was subject to federal diversity jurisdiction as a citizen of the State of Illinois. [Footnote 40] The principle first announced in Cowles has become so firmly rooted in federal law that we were able to say only last Term that "[i]t is well settled that, for purposes of diversity of citizenship, political subdivisions are citizens of their respective States. . . ." Illinois v. City of Milwaukee, 406 U. S. 91, 406 U. S. 97 (1972).The County in this case contends, however, that, unlike the counties of most States, it is not a municipal corporation or an otherwise independent political subdivision, Page 411 U. S. 719 but that it is, under California law, nothing more than an agent or a mere arm of the State itself. In particular, the County cites to us Art. 11, § 1(a), of the California Constitution which provides that "[t]he State is divided into counties which are legal subdivisions of the State." The County thus apparently believes its status, for purposes of the diversity jurisdiction, to be governed by Postal Telegraph Cable, rather than by Cowles and its progeny. Despite the County's contentions, a detailed examination of the relevant provisions of California law -- beyond simply the generalization contained in Art. 11, § 1, of the state constitution -- convinces us that the County cannot be deemed a mere agent of the State of California.Most notably, under California law a county is given "corporate powers" [Footnote 41] and is designated a "body corporate and politic." [Footnote 42] In this capacity, a county may sue and be sued, [Footnote 43] and, significantly for purposes of suit, it is deemed to be a "local public entity" [Footnote 44] in contrast to the State and state agencies. [Footnote 45] In addition, the county, and from all that appears the county alone, [Footnote 46] is liable for all judgments against it and is authorized to levy taxes to pay such judgments. [Footnote 47] A California county may also sell, hold, or otherwise deal in property, [Footnote 48] and it may contract for the construction and repairs of structures. [Footnote 49] The counties also are authorized to provide a variety of Page 411 U. S. 720 public services such as water service, food control, rubbish disposal, and harbor and airport facilities. [Footnote 50] Financially, the counties are empowered to issue general obligation bonds [Footnote 51] payable from county taxes. [Footnote 52] Such bonds create no obligation on the part of the State, except that the State is authorized to intervene and to impose county taxes to protect the bondholders if the county fails to fulfill its obligations voluntarily. [Footnote 53] In sum, these provisions strike us as persuasive indicia of the independent status occupied by California counties relative to the State of California.But even if our own examination were not sufficient for present purposes, we have the clearest indication possible from California's Supreme Court of the status of California's counties. In People ex rel. Younger v. County of El Dorado, 5 Cal. 3d 480, 487 P.2d 1193 (1971), the Attorney General of the State sought a writ of mandate against two California counties to compel them to pay out certain allotted monies. Under state law, such a writ may be issued only to any "inferior tribunal, corporation, board, or person." Cal.Civ.Proc.Code § 1085 (emphasis added). In holding that the writ could be issued against the counties, the California Supreme Court said:"While it has been said that counties are not municipal corporations but are political subdivisions of the state for purposes of government . . , counties have also been declared public corporations or quasi-corporations. . . . In view of Government Code section 23003, which provides that a county is 'a body corporate and [politic],' and section 23004, subdivision (a) of the same code, which states that Page 411 U. S. 721 counties may sue and be sued, we think that a county is sufficiently corporate in character to justify the issuance of a writ of mandate to it."5 Cal. 3d at 491 n. 12, 487 P.2d at 1199 n. 12 (emphasis added). See also Pitchess v. Superior Court, 2 Cal. App. 3d 653, 656, 83 Cal. Rptr. 41, 43 (1969).We do not lightly reject the Court of Appeals' previous conclusion that California counties are merely part of the State itself and, as such, are not citizens of the State for diversity purposes. [Footnote 54] But in light of both the highest state court's recent determination of the corporate character of counties and our own examination of relevant California law, we must conclude that this County has a sufficiently independent corporate character to dictate that it be treated as a citizen of California under our decision in Cowles v. Mercer County, supra.Thus, we hold that petitioner Moor's state law claim against the County is within the diversity jurisdiction. Page 411 U. S. 722 Accordingly, we reverse the judgment of the Court of Appeals in this respect and remand this case to the District Court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtMoor v. County of Alameda, 411 U.S. 693 (1973)Moor v. County of AlamedaNo. 72-10Argued February 27, 1973Decided May 14, 1973411 U.S. 693SyllabusPetitioners Moor and Rundle brought damages actions in the District Court against respondents, several law enforcement officers and Alameda County. Against the County they alleged federal causes of action under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 and 1988, and pendent state claims under the state tort claims statute, the federal, as well as the state, causes of action being grounded on the theory that the County was vicariously liable under state law for the officers' acts. Both petitioners alleged federal jurisdiction under 28 U.S.C. § 1343 and Moor, additionally, on diversity grounds. The County moved to dismiss in each case, contending that, as to the Civil Rights Act claims, it was not a suable "person" under Monroe v. Pape, 365 U. S. 167; that, absent a claim against it as to which there exists an independent basis of federal jurisdiction, application of the pendent jurisdiction doctrine with respect to the state law claims would be inappropriate; and that, in Moor's suit, it was not a "citizen" for federal diversity purposes. The District Court granted the motions to dismiss, and the Court of Appeals affirmed.Held:1. Section 1988, as is clear from its legislative history, does not independently create a federal cause of action for the violation of federal civil rights, and to apply that provision here by imposing vicarious liability upon the County would contravene the holding in Monroe v. Pape, supra, and Congress' intent to exclude a State's political subdivision from civil liability under § 1983. Pp. 411 U. S. 698-710.2. Even assuming, arguendo, that the District Court had judicial power to exercise pendent jurisdiction over petitioners' state law claims which would require that the County be brought in as a new party defendant, against which petitioners could not state a federally cognizable claim, in addition to the individual defendants against whom they could assert such a claim, the court did not abuse its discretion in not exercising that power in view of unsettled questions of state law that it would have been called upon to resolve and the likelihood of jury confusion resulting from Page 411 U. S. 694 the special defenses to a county available under the state tort claims law. Pp. 411 U. S. 710-717.3. The District Court erred in rejecting petitioner Moor's state law claim against the County, which, under California law, has an independent status, on the basis of diversity of citizenship, since diversity jurisdiction extends to a State's political subdivision that is not simply the arm or alter ego of the State, Cowles v. Mercer County, 7 Wall. 118. Pp. 411 U. S. 717-722.458 F.2d 1217, affirmed in part, reversed in part, and remanded.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 411 U. S. 722.

1962_438

MR. JUSTICE CLARK delivered the opinion of the Court.This is a direct appeal from the judgment of the United States District Court for the Southern District of New York, 205 F. Supp. 394, dismissing a civil antitrust action brought by the United States against the Singer Manufacturing Company to prevent and restrain alleged violations of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. The complaint alleged that Singer combined and conspired with two competitors, Gegauf of Switzerland and Vigorelli of Italy, to restrain and monopolize and that Singer unilaterally attempted to monopolize interstate and foreign trade in the importation, sale and distribution of household zigzag sewing machines. The District Court dismissed after an extended trial, concluding that the charges were without merit. The United States appealed under § 2 of the Expediting Act, 15 U.S.C. § 29, but has abandoned its claim as to attempted monopolization. We noted probable jurisdiction in light of the fact that, unless we did so, the parties would be deprived of any appellate review in the case. 371 U.S. 918. We have examined the record (1,723 pages) in detail, as is necessary in these direct appeals, [Footnote 1] and, upon consideration of it as well as the briefs and argument of counsel, have concluded that there was a conspiracy to exclude Japanese competitors in household zigzag sewing machines, and that the judgment must be reversed. Page 374 U. S. 176IThe details of the facts are long and complicated. The amended and corrected opinion of the District Court includes not only a description of the sewing machines involved and their operation, but also an analysis of the patents covering them. We shall, therefore, not relate the facts in detail, but satisfy ourselves with the overriding ones.A. As the District Court stated, this action"concerns only the United States trade and commerce arising from the importation into the United States of a particular type of household sewing machine known as the 'machine-carried multi-cam zigzag machine.' 205 F. Supp. at 396. The zigzag stitch machine produces various ornamental and functional zigzag stitches, as well as straight ones. The automatic multi-cam zigzag machine, unlike the manually operated zigzag and the replaceable cam machine, each of which requires hand manipulation or insertion, operates in response to the turning of a knob or dial on the exterior of the machine. While the multi-cam machines involved here function in slightly different ways, all are a variant of the same basic principle."B. Singer is the sole United States manufacturer of household zigzag sewing machines. In addition to the multi-cam variety at issue here, it produces replaceable cam machines, but not the manually operated zigzag. Singer sells these machines in this country through a wholly owned subsidiary, and in various foreign countries through independent distributors. Singer's sales comprised approximately 61.4% of all domestic sales in multi-cam zigzag machines in the United States in 1959. During the same year, some 22.6% were imported from Japan, and about 16% from Europe. In 1958, Singer's percentage was 69.6%, Japanese imports 20.7%, and European imports 9.7%. Further, Singer's 1959 and Page 374 U. S. 177 1960 domestic sales of multi-cam machines amounted to approximately $46 million per year, in each of which years such sales accounted for about 45% of all its domestic sewing machine sales.C. It appears that Singer, by April 29, 1953, through its experimental department, had completed a design of a multiple cam zigzag mechanism in what it calls the Singer "401" machine. It is disclosed in Singer's Johnson Patent. In 1953, Singer was also developing its Perla Patent, as used in its "306" replaceable cam machine, and, in 1954, its "319" machine-carried multiple cam machine. In September of 1953, Vigorelli, an Italian corporation, introduced in the United States a sewing machine incorporating a stack of cams with a single follower. Singer concluded that Vigorelli had on file applications covering its machine in the various patent offices in the world, and that the Singer design would infringe. On June 10, 1955, Singer bought for $8,000 a patent disclosing a plurality of cams with a single cam follower from Carl Harris, a Canadian. It was believed that this patent, filed June 9, 1952, might be reissued with claims covering the Singer 401 as well as its 319 machine, and that the reissued patent would dominate the Vigorelli machine a well as a Japanese one introduced into the United States in September, 1954, by Brother International Corporation. Thereafter, Singer concluded that litigation would result between it and Vigorelli unless a cross-licensing agreement could be made, and this was effected on November 17, 1955. The license was nonexclusive, world-wide and royalty free. The trial court found that Singer's only purpose was to effect a cross-licensing, but certain correspondence does cast some shadow upon these negotiations. [Footnote 2] The agreement Page 374 U. S. 178 also contained provisions by which each of the parties agreed not to bring any infringement action against the other "in any country," or institute against the other any opposition, nullity or invalidation proceedings in any country. In accordance with this agreement, Singer withdrew its opposition to Vigorelli's patent application in Brazil, and Vigorelli later (1958) abandoned a United States interference to the Johnson application which cleared the way for the Johnson Patent to issue on December 2 of that year.D. While Singer was negotiating the cross-license agreement with Vigorelli, it learned that Gegauf, a Swiss corporation, had a patent covering a multiple cam mechanism. This placed an additional cloud over Singer's Harris reissue plan, because the Gegauf patent enjoyed an effective priority date in Italy of May 31, 1952. This was nine days earlier than Singer's Harris patent filing date in the United States. In December, 1955, Singer learned that Gegauf and Vigorelli had entered a cross-licensing agreement covering their multiple cam patents similar to the Vigorelli-Singer agreement. In January, 1956, Singer found that Gegauf had pending an application in the United States Patent Office, and assumed that it was based on the same priority date, i.e., Page 374 U. S. 179 May 31, 1952. If this was true, Singer could use its Harris reissue patent only to oppose through interference the allowance of broad claims to Gegauf. It therefore made preparation to negotiate with Gegauf, first approaching Vigorelli in order to ascertain how the latter had induced Gegauf to grant him a royalty-free license and drop any claim of infringement. Singer made direct arrangements for a conference with Gegauf for April 12, 1956, and the license agreement was made April 14, 1956.The setting for this meeting was that Gegauf had a dominant Swiss patent with applications in Germany, Italy, and the United States, all prior to Singer. In addition, Singer's counsel had examined Gegauf's Swiss patent and advised that it was valid. Singer opened conversation with indications of coming litigation on the Harris patent, concealing the Johnson and Perla applications. Gegauf felt secure in his patent claims, but insecure with reference to the inroads the Japanese machines were making on the United States market. It was this "lever" which Singer used to secure the license, pointing out that, without an agreement, Gegauf and Singer might litigate for a protracted period; that they should not be fighting each other, as that would only delay the issue of their respective patents; and, finally, that they should license each other and get their respective patents "so they could be enforced by whoever would own the particular patent." Singer, in the discussions, worked upon these Gegauf fears of Japanese competition "because one of the strong points" of its argument was that an agreement should be made"in order to fight against this Japanese competition in their building a machine that in any way reads on the patents of ourselves and of Bernina [Gegauf] which are in conflict. [Footnote 3]"The trial judge found that the only purpose Page 374 U. S. 180 "disclosed to Gegauf, and in fact the very one used to convince Gegauf of the advisability of entering into an agreement" was to"obtain protection against the Japanese machines which might be made under the Gegauf patent; this sprang from a fear which Singer had good reason to believe to be well founded."205 F. Supp. at 413. While he found Singer's"underlying, dominant and sole purpose . . . was to settle the conflict in priority between the Gegauf and Harris patents and to secure for Singer a license right under the earlier patent,"ibid., it is significant that no such overriding purpose was found to have been disclosed to Gegauf.The license agreement covered (1) the Singer-Harris patent and its reissue application in the United States and nine corresponding foreign ones, and (2) the Gegauf Swiss, Italian and German patents, as well as the United States and German applications covering the same. The parties agreed in the first paragraph of the agreement"not to do anything, either directly or indirectly and in any country, the result of which might restrict the scope of the claims of the other party relating to the subject matter of the above mentioned patents and patent applications."In addition,"each undertakes, in accordance with the laws and regulations of the Patent Office concerned, to facilitate the allowance in any country of claims as broad as possible, as regards the subject matter of the patents and patent applications referred to above."The parties also agreed not to sue one another on the basis of any of the patents or applications. Singer agreed not to make a "slavish" copy of Gegauf's machine, and to give Gegauf"the amical assistance of its patent attorneys for the defense of any of the above mentioned Gegauf patents or patent applications against an action in cancellation."The agreement made no mention of Singer's Perla or Johnson applications, the existence of which Singer did not wish Gegauf to know. Page 374 U. S. 181E. Approximately one week after the Gegauf cross-license agreement, Singer met with Vigorelli at Milan, Italy at the latter's request. Vigorelli at this meeting suggested that Singer, Gegauf and Vigorelli, having arrived at their respective agreements, should act in concert in prosecuting their patents against all others in the field. This was out of the question, Singer immediately replied, advising that"what appeared to us to be proper action was for each one to prosecute his own patents and take care of any cases of infringement that might appear. [Footnote 4]"The subsequent conversations at the meeting are reported from the same source as follows:"Upon learning that there could be no joint action by the three companies who have been mentioned in prosecuting patents against all others in the field, that subject was dropped. . . .""At this point, it should perhaps be mentioned that Mr. Stanford and I have discussed between ourselves whether we should say anything to Mr. Gegauf about our feeling that we could prosecute his patents that will be issued sometime within the next few months in the United States better than perhaps he could if we owned them, but we had decided not to say anything to Mr. Gegauf about this at this time.""In talking with Mr. Vigorelli's lawyer, Mr. Stanford dropped this view to him. The point was immediately understood, and the question was raised if we would have any objection if they were to pass the word on to Mr. Gegauf that they were raising this point. We said that, of course, we would have no objection but that we ourselves did not wish to do this, and we would not want the suggestion coming to Mr. Gegauf at this time as from us. If they wanted to suggest it, it was all right. We would, of Page 374 U. S. 182 course, under such an arrangement, have to give a license to Gegauf under the patent that he would turn over to us. Mr. Stanford believes that he would be able, before the patent is issued, to rewrite the claims and make it stronger than it now is, and that it is a fact that, being in the United States, we would be better able to prosecute any claims against this patent than would Mr. Gegauf."While the testimony of Mr. Stanford, Singer's patent attorney, varies somewhat from this memorandum of Mr. Waterman, it is substantially the same. [Footnote 5] That the approach to Gegauf was not casually laid is shown by a May 7, 1956, letter from Mr. Stanford to Patent Department employees of Singer, in which he said,"When in Italy, we laid careful plans for Gegauf to be advised by a third Page 374 U. S. 183 party that Singer could best handle the patent situation if we owned the Gegauf U.S. Patent. Think it will bear fruit. This suggestion, with the U.S. attorney situation, is pressure in the right direction."Mr. Majnoni reported in June, 1956, that he had the "opportunity of talking to the Patent Attorneys of Mr. F. Gegauf on a number of occasions" concerning"the question of the advantage of the American Singer Company's being in possession of the different patents which might be useful in defence of sewing machines with multiple cams. . . ."He stated that "the particular character of the question," i.e., "the possibility and advantage that the Gegauf patent application in the States be assigned to Singer," required that the approach be in "such a way as to prompt an initiative to this end by Gegauf." He was hopeful that this had been accomplished. Thereafter on September 19, Dr. S. Lando, Singer representative in Milan, reported that Majnoni advised that Gegauf"is today effectively willing to transfer his patent application in the U.S. to the Singer, without regard or with little regard to the financial side of the matter."This was brought about, he said, by discussions between Vigorelli and Gegauf concerning a United States Van Tuyl patent and its effect upon the validity of the Gegauf German patent; that Gegauf had"made informally known to Mr. Vigorelli that the withdrawing of the Vigorelli application in the U.S. would be greatly appreciated, to prevent the issuance of a printed patent wherein the fact that the Van Tuyl patent exists will be made known to third parties;"that Vigorelli had agreed to withdraw his application, and that, as a consequence, Vigorelli would"drop any direct means adapted to protect his machines in the U.S., but he is quite sure that Singer will take care of the protection of the machines of the general type of interest by making use of the owned Harris and Gegauf patents. "Page 374 U. S. 184In the summer of 1956, Mr. F. Gegauf, Jr., and his sister attended a sewing machine convention at Kansas City. On returning home, they met with Singer (Messrs. Waterman & Stanford) in Singer's office in New York City. Gegauf expressed concern over the number of Japanese machines that he had seen at the convention. Singer again found opportunity to employ the Japanese problem, and stressed to Gegauf, Jr., the difficulties of enforcing a patent in the United States -- namely, large number of importers, size of the country, number of judicial circuits, etc. Singer emphasized that these all presented problems to the owner of a United States patent. Singer, being in the United States, could, they said, enforce the patent better than Gegauf could. They asked Gegauf, Jr., whether he thought his father would be interested in selling the patent to Singer. Thereafter, on September 3, Gegauf, Jr., wrote Mr. Waterman that Singer's suggestion had been taken up with Gegauf, Sr., and "we might be interested in such an agreement." The closing paragraph says:"We agree that something should be done against Japanese competition in your country, and maybe South America, and are therefore looking forward to your early reply."Waterman replied on September 7 that he and Mr. Stanford would be in Germany on September 18 through 25; he asked that Gegauf's United States patent attorney be directed to meet with Stanford in New York City with authorization to disclose the content of the Gegauf patent application so that time might he saved in Europe. Mr. Waterman closed with the belief "that it may be possible that we can both strengthen our positions with respect to the Japanese competition which you mention. . . ." The conference was set for September 23, at which time Gegauf demanded $250,000 for the patent, and negotiations broke off. Singer wrote Dr. Lando, its Milan agent, on October 9, informing him. The letter closed with this paragraph: Page 374 U. S. 185 "I thought you would like to have this information if the subject should come up in talking with Mr. Vigorelli or his attorney." And, on October 24, Singer wrote Mr. Gegauf advising that the United States Patent Office had declared an interference between their patent applications; that their cross-license agreement provided that this interference be settled in accordance with the patent laws of the United States; that,"since . . . interference proceedings are usually time-consuming and costly to the parties involved, it would appear that it would be advantageous for us to settle the interference between ourselves, rather than to continue the proceeding and rely on the United States Patent Office finally to award a priority;"and, finally, Singer suggested that the attorneys for the parties in the United States get together with a view to settling the interference. Singer abandoned its interference on March 15, 1957, and the Gegauf claim was taken verbatim from the Singer Harris reissue claim.Nothing more was done by Singer toward securing the Gegauf application until September 12, 1957, when Singer wrote Gegauf that its Harris application was about to be issued as a patent. It also anticipated that several other patents relating to ornamental stitch machines would soon be issued to it, and presumed Gegauf's application would soon be granted. Then followed this paragraph:"When I had the pleasure of meeting you last fall, we had some discussion relative to the procedures that might be followed to enforce the patents . . . , when issued, against infringing manufacturers who primarily are manufacturers in other countries seeking markets in the United States, and more and more throughout the entire world. These manufacturers are bringing out a large variety of ornamental stitch machines which would appear to come within the Page 374 U. S. 186 terms of claims which may be awarded in the United States with respect of the aforementioned Singer and Gegauf patents. A proper enforcement of these patents may make it necessary to instigate patent suits against each of the importers in the United States, of whom there will perhaps be many. I think you will agree with me that neither one of us alone can protect himself most effectively. [Footnote 6]"This letter brought on a meeting of the parties in Zurich on October 16, 1957. Gegauf's position was that, as the trial court found,"while it had no objection 'to making an agreement with Singer, in order to stop as far as possible Japanese competitors in the United States market,' it was willing to do so only under certain conditions."205 F. Supp. at 416. Finally, as the trial court found, Gegauf demanded $125,000 plus certain conditions declaring that it"was cheap, and that it could not go lower, since it could get more money if it licensed the invention. Kirker [of Singer] replied that there was no comparison since a sale to Singer was insurance against common competitors, Page 374 U. S. 187 and that was why Singer was willing to pay."Ibid. In another exchange, Gegauf"advanced the argument that, if stopped by Singer in the United States, the Japanese manufacturers would run to Europe; to this, Singer answered that a greater risk was run in Europe if Singer were not permitted to first stop infringements in the United States. . . . Singer continued 'to drive home the point' that Gegauf stood to benefit more by enforcement of the patents in the United States because the 'Brother Pacesetter' machine, a big selling and patent infringing Japanese-made machine, was in direct competition with the Gegauf machine, for both machines were of the free arm type."205 F. Supp. at 417.Finally, Gegauf assigned to Singer its application and all rights in the invention claimed and to all United States patents which might be granted under it for $90,000. The accompanying agreement provided that (1) Singer would grant Gegauf a nonexclusive royalty-free license to sell in the United States sewing machines made in Gegauf's factory in Switzerland; (2) Singer would not institute, without the consent of Gegauf, legal proceedings asserting the patents when issued against Pfaff in Germany or Vigorelli in Italy with respect to machines manufactured in their home factories; and (3) Singer would not make a "slavish" copy of Gegauf's Bernina machine.F. The Gegauf patent issued on April 29, 1958, and Singer filed two infringement suits against Brother, the largest domestic importer of Japanese machines. It also sued two other distributors of multi-cam machines, those actions terminating in consent decrees. Finally, in January, 1959, eight months after the patent was issued, Singer brought a proceeding before the United States Tariff Commission under § 337 of the Tariff Act of 1930, 19 U.S.C. Page 374 U. S. 188 § 1337. It sought an order of the President of the United States excluding all imported machines coming within the claims of the Gegauf patent for the term of the patent, naming European as well as Japanese infringers. Singer alleged that the tremendous volume of imports from Japan of household sewing machines, other than automatic zigzag, had eliminated all domestic manufacturers save itself and one small straight stitch part-time concern. It further alleged that the increasing volume of infringing imports similarly threatened to result in the curtailment and ultimate cessation of manufacturing operations in the United States in automatic zigzags, with heavy loss of highly paid and skilled labor and large capital investment. At the time of the filing, Singer alleged, foreign-made machines, "primarily from Japan," were being imported to the extent of 50% of the entire Singer sales of automatic zigzag machines in this country; it represented that the automatic zigzag machine is its most important product, and that it sells for a minimum price of $300; that infringers from Japan sell at no firm price, the average being $100 less than Singer's price, but often far below that figure; and that the minimum price in Japan for export is $40 to $54.During the hearing on its complaint, Singer was asked whether Pfaff was licensed under the Gegauf patent. Singer replied in the negative, but became skeptical, and, believing that it might "have a better chance of prevailing before the Tariff Commission," decided to ask Gegauf to revise the agreement, which originally excepted Pfaff and Vigorelli from enforcement proceedings, except on consent of Gegauf. The latter agreed on condition that Phoenix, a German manufacturer which was a party-defendant in the proceedings, be substituted.Upon commencement of this action by the United States, the Commission stayed the proceedings, and they are now in abeyance pending our disposition of this case. Page 374 U. S. 189IIFirst, it may be helpful to set out what is not involved in this case. There is no claim by the Government that it is illegal for one merely to acquire a patent in order to exclude his competitors; or that the owner of a lawfully acquired patent cannot use the patent laws to exclude all infringers of the patent; or that a licensee cannot lawfully acquire the covering patent in order better to enforce it on his own account, even when the patent dominates an industry in which the licensee is the dominant firm. Therefore, we put all these matters aside without discussion.What is claimed here is that Singer engaged in a series of transactions with Gegauf and Vigorelli for an illegal purpose, i.e., to rid itself and Gegauf, together, perhaps, with Vigorelli, of infringements by their common competitors, the Japanese manufacturers. The Government claims that, in this respect, there were an identity of purpose among the parties and actions pursuant thereto that, in law, amount to a combination or conspiracy violative of the Sherman Act. It claims that this can be established under the findings of the District Court.We note from the findings that the importation of Japanese household multi-cam zigzag sewing machines first came to notice in the United States in 1954 with the introduction of such a machine by the Brother International Corporation. It incorporated the mechanism of the Vigorelli zigzag and the Singer 401 machines. By 1959, importations of all Japanese household sewing machines reached 1,100,000, while importations of European machines reached only 100,000. Moreover, it appears that all but two domestic manufacturers were put out of business in three to four years after the Japanese machines first appeared. The two remaining domestic manufacturers were Singer and a company not specializing in sewing Page 374 U. S. 190 machines, which manufactured only straight stitch machines on order for a single domestic customer.The trial court found that no mention was made of the Japanese machines during the negotiations covering the Vigorelli cross-licensing agreement with Singer. It first appeared during the Gegauf licensing negotiations, where, at those meetings, Singer used "protection against the Japanese" as "one of the strong points" on the cross-licensing of the Gegauf and Harris patents and applications. Here, though the trial court stated that the "dominant and sole purpose of the license agreement was to settle the conflict in priority," it specifically, in the next paragraph of its opinion, found a "secondary" purpose, i.e., protection against the Japanese machines which were infringing the Gegauf patent. In this connection, it is most important to note another finding of the trial court, namely, that this purpose to exclude the Japanese "was the only one disclosed to Gegauf, and in fact the very one used to convince Gegauf of the advisability of entering into an agreement." 205 F. Supp. at 413. Under these findings, it cannot be said that settlement of the conflict in priority was the "dominant and sole purpose" of Singer. Indeed, the two findings are in direct conflict. Furthermore, the fact that the cross-license agreement provided that Singer and Gegauf would facilitate the allowance to each other of claims "as broad as possible" indicates a desire to secure as broad coverage for the patent as possible, the more effectively to stifle competition, the overwhelming percentage of which was Japanese. This effect was accomplished, for when the Patent Office placed the Harris (Singer) and Gegauf patents in interference, Singer abandoned the proceeding, thus facilitating the issuance of broad claims to Gegauf. [Footnote 7] Page 374 U. S. 191We now come to the assignment of the Gegauf patent to Singer. The trial court found: (1) that six days after the license agreement was made with Gegauf, Singer proceeded to Italy, where a conference was held with Vigorelli. At this meeting two events took place that led to the later acquisition of the patent by Singer. The first was Vigorelli's proposal that Singer, Gegauf, and himself act "in concert against others" in enforcing the patent. This was rejected by Singer's representatives, who said it was best for each "to prosecute his own patents." At the same meeting, however, Singer proposed to Vigorelli that it could prosecute the Gegauf patent in the United States better than Gegauf and, after Vigorelli agreed, solicited his help in getting Gegauf to agree to assign the patent. (2) Vigorelli went to Gegauf "acting as Singer's agent," 205 F. Supp. at 414, and convinced the latter sufficiently for him to write Singer that he favored the idea of doing something "against Japanese competition." (3) Singer replied to Gegauf by letter that an arrangement could be reached "equally advantageous to both." (4) Singer went to Europe, but was not able to agree on Gegauf's terms, and thereafter, in September, 1957, wrote the latter that "their mutual interests required that something be done to protect themselves from the Japanese infringing machines." (5) Gegauf replied that he would be happy to meet Singer to discuss "mutual enforcement" of its United States application and the Harris reissue. Then, (6) in the final conferences in Europe, Gegauf told Singer that he had no objection "to making an agreement with Singer in order to stop as far as possible Japanese competitors in the United States market." Further, the trial court found that Singer assured Gegauf that "Singer was insurance Page 374 U. S. 192 against common competitors" and Gegauf's fears that, if Singer stopped the Japanese infringements in the United States, they (the Japanese) would go to Europe, where Gegauf was not in as good a position to stop them, were unfounded because a greater risk was run in Europe if Singer were not permitted to first stop infringements in the United States. Finally, the court found that (7) Singer was determined "to drive home the point" that Gegauf stood to benefit more by enforcement of the patents in the United States because the "Brother Pacesetter" machine, a big selling and patent infringing Japanese-made machine, was in direct competition with the Gegauf machine in the United States. As the trial court put it, "[t]he point apparently reached home" -- Gegauf ultimately assigned the patent for only $90,000, much less than its original asking price and much less than Gegauf believed it would realize annually from a license grant. Gegauf's beliefs as to the inadequacy of the monetary consideration were well founded, since Singer received more than twice that amount in a two-year period from the one license it granted under the Gegauf patent. That license, incidentally, was to Sears, Roebuck & Company, which imported machines from Europe.IIIAs we have noted with reference to the cross-license agreement, the trial court decided that"[t]he undisputed facts support no conclusion other than that the underlying, dominant and sole purpose of the license agreement was to settle the conflict in priority between the Gegauf and Harris patents. . . ."We have rejected this conclusion on the trial court's own finding in the next paragraph of the opinion that Singer's "secondary" purpose, the only one disclosed to Gegauf, was its "desire to obtain protection against the Japanese machines which might be made under the Gegauf patent." Likewise, we reject, Page 374 U. S. 193 as a question of law, the court's inference that the attitude of suspicion, wariness and self-preservation of the parties negated a conspiracy. See United States v. Line Material Co., 333 U. S. 287, 333 U. S. 297 (1948); United States v. Masonite Corp., 316 U. S. 265, 316 U. S. 280-281 (1942); United States v. General Electric Co., 80 F. Supp. 989, 997-998 (S.D.N.Y.1948).The trial court held that the fact that Singer had a purpose, which "Gegauf well knew," of enforcing the patent upon its acquisition, that the enforcement "would most certainly include Japanese manufacturers, who were the principal infringers," and "that Gegauf shared with Singer a common concern over Japanese competition" did not establish a conspiracy. 205 F. Supp. at 419. Given the court's own findings and the clear import of the record, it is apparent that its conclusions were predicated upon "an erroneous interpretation of the standard to be applied. . . ." Thus,"[b]ecause of the nature of the District Court's error, we are reviewing a question of law, namely, whether the District Court applied the proper standard to essentially undisputed facts."United States v. Parke, Davis & Co., 362 U. S. 29, 362 U. S. 44 (1960). There, in a discussion of a like problem, we held that "the inference of an agreement in violation of the Sherman Act" is not "merely limited to particular fact complexes," ibid., citing United States v. Bausch & Lomb Optical Co., 321 U. S. 707 (1944), and Federal Trade Comm'n v. Beech-Nut Packing Co., 257 U. S. 441 (1922). "Both cases," the Court continued, "teach that judicial inquiry is not to stop with a search of the record for evidence of purely contractual arrangements. . . ." Ibid. Whether the conspiracy was achieved by agreement, by tacit understanding, or by "acquiescence . . . coupled with assistance in effectuating its purpose is immaterial." United States v. Bausch & Lomb, supra, at 321 U. S. 723. Here, the patent was put in Singer's hands to Page 374 U. S. 194 achieve the common purpose of enforcement "equally advantageous to both" Singer and Gegauf and to Vigorelli as well. [Footnote 8] What Singer had refused Vigorelli, i.e., acting "in concert against others," was thus achieved by the simple expedient of transferring the patent to Singer.Thus, by entwining itself with Gegauf and Vigorelli in such a program, Singer went far beyond its claimed purpose of merely protecting its own 401 machine -- it was protecting Gegauf and Vigorelli, the sole licensees under the patent at the time, under the same umbrella. This the Sherman Act will not permit. As the Court held in Frey & Son, Inc. v. Cudahy Packing Co., 256 U. S. 208, 256 U. S. 210 (1921), the conspiracy arises implicitly from the course of dealing of the parties, here resulting in Singer's obligation to enforce the patent to the benefit of all three parties. While there was no contract so stipulating, the facts as found by the trial court indicate a common purpose [Footnote 9] to suppress the Japanese machine competition Page 374 U. S. 195 in the United States through the use of the patent, which was secured by Singer on the assurances to Gegauf and its co-licensee, Vigorelli, that such would certainly be the result. See Federal Trade Comm'n v. Beech-Nut Packing Co., supra. Singer cannot, of course, contend that it sought the assignment of the patent merely to assure that it could produce and sell its machines, since the preceding cross-license agreement had assured that right. The fact that the enforcement plan likewise served Singer is of no consequence, the controlling factor being the overall common design, i.e., to destroy the Japanese sale of infringing machines in the United States by placing the patent in Singer's hands the better to achieve this result. It is this concerted action to restrain trade, clearly established by the course of dealings, that condemns the transactions under the Sherman Act. As we said in United States v. Parke, Davis & Co., supra, 362 U.S. at 362 U. S. 44, "whether an unlawful combination or conspiracy is proved is to be judged by what the parties actually did, rather than by the words they used."Moreover this overriding common design to exclude the Japanese machines in the United States is clearly illustrated by Singer's action before the United States Tariff Commission. Less than eight months after the patent was issued, it started this effort to bar infringers in one sweep. As an American corporation, it was the sole company of the three that was able to bring such an action. Page 374 U. S. 196 When it appeared that the references to Pfaff in the assignment agreement threatened the success of the Tariff Commission proceeding, Gegauf consented to the deletion of Pfaff from the agreement. This maneuver was for the purpose, as the trial court found, of giving Singer "a better chance of prevailing before the Tariff Commission" in its efforts to exclude infringing machines. 205 F. Supp. at 427. While the tariff application was leveled against nine European, as well as the Japanese, competitors, the allegations were clearly beamed at the infringing Japanese machines, to which Singer attributed the destruction of all American domestic household sewing machine companies save itself. As the parties to the agreements and assignment well knew, and as the trial court itself stated, "by far the largest number of infringers of the Gegauf patent and invention were the Japanese." 205 F. Supp. at 418.It is strongly urged upon us that application of the antitrust laws in this case will have a significantly deleterious effect on Singer's position as the sole remaining domestic producer of zigzag sewing machines for household use, the market for which has been increasingly preempted by foreign manufacturers. Whether economic consequences of this character warrant relaxation of the scope of enforcement of the antitrust laws, however, is a policy matter committed to congressional or executive resolution. It is not within the province of the courts, whose function is to apply the existing law. It is well settled that, "[b]eyond the limited monopoly which is granted, the arrangements by which the patent is utilized are subject to the general law," United States v. Masonite Corp., supra, 316 U.S. at 316 U. S. 277, and it"is equally well settled that the possession of a valid patent or patents does not give the patentee any exemption from the provisions of the Sherman Act beyond the limits of the patent Page 374 U. S. 197 monopoly. By aggregating patents in one control, the holder of the patents cannot escape the prohibitions of the Sherman Act."United States v. Line Material Co., supra, at 333 U. S. 308. That Act imposes strict limitations on the concerted activities in which patent owners may lawfully engage, see United States v. United States Gypsum Co., 333 U. S. 364 (1948); United States v. Line Material Co., supra; United States v. National Lead Co., 63 F. Supp. 513, aff'd, 332 U. S. 332 U.S. 319 (1947), and those limitations have been exceeded in this case.The judgment of the District Court is reversed, and the case is remanded for the entry of an appropriate decree in accordance with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Singer Mfg. Co., 374 U.S. 174 (1963)United States v. Singer Manufacturing Co.No. 438Argued April 25, 29, 1963Decided June 17, 1963374 U.S. 174SyllabusThe United States sued to restrain appellee, the sole American manufacturer of household zigzag sewing machines, from conspiring with two of its competitors, an Italian manufacturer and a Swiss manufacturer, to restrain interstate and foreign trade in the importation, sale and distribution of such machines in this country. The evidence showed a course of dealings between these three manufacturers, including the cross-licensing of their patents on a nonexclusive, world-wide and royalty-free basis and ultimately the sale and assignment to appellee of an American patent owned by the Swiss manufacturer, in order that it could be enforced more effectively in the United States against Japanese manufacturers of such machines, who were underpricing appellee and the Italian and Swiss manufacturers. The District Court dismissed the complaint.Held: on this record, there was a conspiracy to exclude Japanese competitors, in violation of § 1 of the Sherman Act, and the judgment is reversed. Pp. 374 U. S. 175-197.(a) In concluding that no conspiracy was established on this record, the District Court applied the wrong standard as a matter of law. Pp. 374 U. S. 192-193.(b) The course of dealings disclosed by this record shows that appellee and the Italian and Swiss manufacturers had a common purpose to suppress the competition of Japanese machines in the United States through the use of the patent which appellee obtained from the Swiss manufacturer and under which the Swiss and Italian manufacturers were the sole licensees. Implicit in such a course of dealings was a conspiracy which violated § 1 of the Sherman Act. Pp. 374 U. S. 192-196.205 F. Supp. 394, reversed. Page 374 U. S. 175

1964_18

MR. JUSTICE STEWART delivered the opinion of the Court.On the afternoon of November 10, 1961, the petitioner, William Beck, was driving his automobile in the vicinity Page 379 U. S. 90 of East 115th Street and Beulah Avenue in Cleveland, Ohio. Cleveland police officers accosted him, identified themselves, and ordered him to pull over to the curb. The officers possessed neither an arrest warrant nor a search warrant. Placing him under arrest, they searched his car, but found nothing of interest. They then took him to a nearby police station, where they searched his person and found an envelope containing a number of clearing house slips "beneath the sock of his leg." The petitioner was subsequently charged in the Cleveland Municipal Court with possession of clearing house slips in violation of a state criminal statute. [Footnote 1] He filed a motion to suppress as evidence the clearing house slips in question upon the ground that the police had obtained them by means of an unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments. After a hearing, the motion was overruled, the clearing house slips were admitted in evidence, and the petitioner was convicted. His conviction was affirmed by an Ohio Court of Appeals, and ultimately by the Supreme Court of Ohio, with two judges dissenting. 175 Ohio St. 73, 191 N.E.2d 825. We granted certiorari to consider the petitioner's claim that, under the rule of Mapp v. Ohio, 367 U. S. 643, the clearing house slips were wrongly admitted Page 379 U. S. 91 in evidence against him because they had been seized by the Cleveland police in violation of the Fourth and Fourteenth Amendments. 376 U. S. 905.Although the police officers did not obtain a warrant before arresting the petitioner and searching his automobile and his person, the Supreme Court of Ohio found the search nonetheless constitutionally valid as a search incident to a lawful arrest. And it is upon that basis that the Ohio decision has been supported by the respondent here. See Draper v. United States, 358 U. S. 307; Ker v. California, 374 U. S. 23.There are limits to the permissible scope of a warrantless search incident to a lawful arrest, but we proceed on the premise that, if the arrest itself was lawful, those limits were not exceeded here. See Harris v. United States, 331 U. S. 145; United States v. Rabinowitz, 339 U. S. 56; cf. Preston v. United States, 376 U. S. 364. The constitutional validity of the search in this case, then, must depend upon the constitutional validity of the petitioner's arrest. Whether that arrest was constitutionally valid depends, in turn, upon whether, at the moment the arrest was made, the officers had probable cause to make it -- whether, at that moment, the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U. S. 160, 338 U. S. 175-176; Henry v. United States, 361 U. S. 98, 361 U. S. 102."The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating . . . often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice."Brinegar v. United States, supra, at 338 U. S. 176. Page 379 U. S. 92In turning to the question of whether or not the record in the case before us can support a finding of probable cause for the petitioner's arrest, it may be well to repeat what was said by Mr. Justice Clark, speaking for eight members of the Court, in Ker v. California:"While this Court does not sit as in nisi prius to appraise contradictory factual questions, it will, where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental -- i.e., constitutional -- criteria established by this Court have been respected. The States are not thereby precluded from developing workable rules governing arrests, searches and seizures to meet 'the practical demands of effective criminal investigation and law enforcement' in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain. See Jones v. United States, 362 U. S. 257 (1960). Such a standard implies no derogation of uniformity in applying federal constitutional guarantees, but is only a recognition that conditions and circumstances vary, just as do investigative and enforcement techniques."374 U. S. 374 U.S. 23, at 374 U. S. 34.The trial court made no findings of fact in this case. The trial judge simply made a conclusory statement: "A lawful arrest has been made, and this was a search incidental to that lawful arrest." The Court of Appeals merely found "no error prejudicial to the appellant." In the Supreme Court of Ohio, Judge Zimmerman's opinion contained a narrative recital which is accurately Page 379 U. S. 93 excerpted in the dissenting opinions filed today. But, putting aside the question of whether this opinion can fairly be called the opinion of the court, [Footnote 2] such a recital in an appellate opinion is hardly the equivalent of findings made by the trier of the facts. In any event, after giving full scope to the flexibility demanded by "a recognition that conditions and circumstances vary just as do investigative and enforcement techniques," we hold that the arrest of the petitioner cannot on the record before us be squared with the demands of the Fourth and Fourteenth Amendments.The record is meager, consisting only of the testimony of one of the arresting officers, given at the hearing on the motion to suppress. As to the officer's own knowledge of the petitioner before the arrest, the record shows no more than that the officer "had a police picture of him and knew what he looked like," and that the officer knew that the petitioner had "a record in connection with clearing house and scheme of chance." [Footnote 3] Beyond that, the officer Page 379 U. S. 94 testified only that he had "information," that he had "heard reports," that "someone specifically did relate that information," and that he "knew who that person was." There is nowhere in the record any indication of what "information" or "reports" the officer had received, or, beyond what has been set out above, from what source the "information" and "reports" had come. The officer testified that, when he left the station house, "I had in mind looking for [the petitioner] in the area of East 115th Street and Beulah, stopping him if I did see him make a stop in that area." But the officer testified to nothing that would indicate that any informer had said that the petitioner could be found at that time and place. Cf. Draper v. United States, 358 U. S. 307. And the record does not show that the officers saw the petitioner "stop" before they arrested him, or that they saw, heard, smelled, or otherwise perceived anything else to give them ground for belief that the petitioner had acted or was then acting unlawfully. [Footnote 4] Page 379 U. S. 95No decision of this Court has upheld the constitutional validity of a warrantless arrest with support so scant as this record presents. The respondent relies upon Draper v. United States, 358 U. S. 307. But, in that case, the record showed that a named special employee of narcotics agents who had on numerous occasions given reliable information had told the arresting officer that the defendant, whom he described minutely, had taken up residence at a stated address and was selling narcotics to addicts in Denver. The informer further had told the officer that the defendant was going to Chicago to obtain narcotics, and would be returning to Denver on one of two trains from Chicago, which event in fact took place. In complete contrast, the record in this case does not contain a single objective fact to support a belief by the officers that the petitioner was engaged in criminal activity at the time they arrested him. Page 379 U. S. 96An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure on an after-the-event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment."Whether or not the requirements of reliability and particularity of the information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent than where an arrest warrant is obtained. Otherwise, a principal incentive now existing for the procurement of arrest warrants would be destroyed."Wong Sun v. United States, 371 U. S. 471, 371 U. S. 479-480. Yet even in cases where warrants were obtained, the Court has held that the Constitution demands a greater showing of probable cause than can be found in the present record. Aguilar v. Texas, 378 U. S. 108; Giordenello v. United States, 357 U. S. 480; [Footnote 5] Nathanson v. United States, 290 U. S. 41. [Footnote 6]When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would "warrant a man of reasonable caution in the belief" that an offense has been committed. Carroll v. United States, 267 U. S. 132, 267 U. S. 162. If the court is not informed of the facts upon which the arresting officers acted, it cannot properly discharge that function. All that the trial court was told in this case was that the officers knew what the petitioner looked like and knew Page 379 U. S. 97 that he had a previous record of arrests or convictions for violations of the clearing house law. Beyond that, the arresting officer who testified said no more than that someone (he did not say who) had told him something (he did not say what) about the petitioner. We do not hold that the officer's knowledge of the petitioner's physical appearance and previous record was either inadmissible or entirely irrelevant upon the issue of probable cause. See Brinegar v. United States, 338 U. S. 160, 338 U. S. 172-174. But to hold knowledge of either or both of these facts constituted probable cause would be to hold that anyone with a previous criminal record could be arrested at will.It is possible that an informer did, in fact, relate information to the police officer in this case which constituted probable cause for the petitioner's arrest. But when the constitutional validity of that arrest was challenged, it was incumbent upon the prosecution to show with considerably more specificity than was shown in this case what the informer actually said, and why the officer thought the information was credible. We may assume that the officers acted in good faith in arresting the petitioner. But "good faith on the part of the arresting officers is not enough." Henry v. United States, 361 U. S. 98, 361 U. S. 102. If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be "secure in their persons, houses, papers, and effects," only in the discretion of the police.Reversed

U.S. Supreme CourtBeck v. Ohio, 379 U.S. 89 (1964)Beck v. OhioNo. 18Argued October 15, 1964Decided November 23, 1964379 U.S. 89SyllabusPolice officers, who had received unspecified "information" and "reports" about petitioner, who knew what he looked like, and that he had a gambling record, stopped petitioner, who was driving an automobile. Placing him under arrest, they searched his car, though they had no arrest or search warrant. They found nothing of interest. They took him to a police station, where they found some clearing house slips on his person, for the possession of which he was subsequently tried. His motion to suppress the slips as seized in violation of the Fourth and Fourteenth Amendments was overruled, the slips were admitted into evidence, and he was convicted, his conviction being ultimately sustained on appeal by the Supreme Court of Ohio, which found the search valid as incident to a lawful arrest.Held: No probable cause for petitioner's arrest having been shown, the arrest, and therefore necessarily the search for and seizure of the slips incident thereto, were invalid under the Fourth and Fourteenth Amendments. Pp. 379 U. S. 91-97.175 Ohio St. 73, 191 N.E.2d 826, reversed.

1979_78-1487

MR. JUSTICE BRENNAN delivered the opinion of the Court.The issue for decision in this case is whether the Truth in Lending Act (TILA), 82 Stat. 146, as amended, 15 U.S.C. § 1601 et seq., requires that the existence of an acceleration clause always be disclosed on the face of a credit agreement. The Federal Reserve Board staff has consistently construed the statute and regulations as imposing no such uniform requirement. Because we believe that a high degree of deference to this administrative interpretation is warranted, we hold that TILA does not mandate a general rule of disclosure for acceleration clauses.IThe several respondents in this case purchased automobiles from various dealers, financing their purchases through standard retail installment contracts that were assigned to petitioner Ford Motor Credit Co. (FMCC), a finance company. Each contract provided that respondents were to pay a precomputed finance charge. As required by TILA and Federal Reserve Board Regulation Z, which implements the Act, the front page of each contract disclosed and explained certain features of the agreement. See 15 U.S.C. § 1631; 12 CFR § 226.6(a) (1979). Among these disclosures was a paragraph informing the buyer that he"may prepay his obligations under this contract in full at any time prior to maturity of the final instalment hereunder, and, if he does so, shall receive a rebate of the unearned portion of the Finance Charge computed under the sum of the digits method. . . ."The face of the contract also stated that temporary default on a particular installment would result in a predetermined Page 444 U. S. 558 delinquency charge. Not mentioned on the disclosure page was a clause in the body of the contract giving the creditor a right to accelerate payment of the entire debt upon the buyer's default. [Footnote 1]Respondents subsequently commenced four separate suits against FMCC in the United States District Court for the District of Oregon, alleging, inter alia, that FMCC had violated TILA and Regulation Z by failing to disclose on the front page of the contract that the creditor retained the right to accelerate payment of the debt. [Footnote 2] In two of the suits, [Footnote 3] the District Court held that facial disclosure of the acceleration clauses was mandated by the provision of TILA that compels publication of "default, delinquency, or similar charges payable in the event of late payments," 15 U.S.C. §§ 1638(a)(9), 1639(a)(7). App. 30-31, 37, 69-71. Respondents in the other two actions prevailed on different grounds. [Footnote 4] All four cases were consolidated on appeal to the Ninth Circuit.The Court of Appeals agreed with the District Court that TILA imposes a general acceleration clause disclosure requirement. [Footnote 5] Rather than resting on the District Court's holding that acceleration is a default charge, however, the Court of Appeals based its decision on the narrower principle that, under Regulation Z,"[t]he creditor must disclose whether a rebate of unearned interest will be made upon acceleration Page 444 U. S. 559 and also disclose the method by which the amount of unearned interest will be computed if the debt is accelerated."588 F.2d 753, 757 (1978), quoting St. Germain v. Bank of Hawaii, 573 F.2d 572, 577 (CA9 1977). See 12 CFR § 226.8(b)(7) (1979). Implicit in the conclusion of the Court of Appeals -- and explicit in its preceding St. Germain decision -- was the rejection of a contrary administrative interpretation of the pertinent statutory and regulatory provisions. In adopting its particular approach, the Court of Appeals mapped a path through the disclosure thicket that diverges from the routes traveled by the Courts of Appeals for several other Circuits. [Footnote 6] We granted certiorari, 442 U.S. 940 (1979), to resolve the conflict. We reverse.IIThe Truth in Lending Act has the broad purpose of promoting "the informed use of credit" by assuring "meaningful disclosure of credit terms" to consumers. 15 U.S.C. § 1601. Because of their complexity and variety, however, credit transactions defy exhaustive regulation by a single statute. Congress therefore delegated expansive authority to Page 444 U. S. 560 the Federal Reserve Board to elaborate and expand the legal framework governing commerce in credit. 15 U.S.C. § 1604; Mourning v. Family Publications Service, Inc., 411 U. S. 356 (1973). The Board executed its responsibility by promulgating Regulation Z, 12 CFR Part 226 (1979), which at least partly fills the statutory gaps. Even Regulation Z, however, cannot speak explicitly to every credit disclosure issue. At the threshold, therefore, interpretation of TILA and Regulation Z demands an examination of their express language; absent a clear expression, it becomes necessary to consider the implicit character of the statutory scheme. For the reasons following, we conclude that the issue of acceleration disclosure is not governed by clear expression in the statute or regulation, and that it is appropriate to defer to the Federal Reserve Board and staff in determining what resolution of that issue is implied by the truth in lending enactments.Respondents have advanced two theories to buttress their claim that the Act and regulation expressly mandate disclosure of acceleration clauses. In the District Court, they contended that acceleration clauses were comprehended by the general statutory prescription that a creditor shall disclose "default, delinquency, or similar charges payable in the event of late payments," 15 U.S.C. §§ 1638(a)(9), 1639(a) (7), and were included within the provision of Regulation Z requiring disclosure of the "amount, or method of computing the amount, of any default, delinquency, or similar charges payable in the event of late payments," 12 CFR § 226.8(b)(4) (1979). Before this Court, respondents follow the Court of Appeals in arguing that 12 CFR § 226.8(b)(7) may be the source of an obligation to disclose procedures governing the rebate of unearned finance charges that accrue under acceleration. That section commands"[i]dentification of the method of computing any unearned portion of the finance charge in the event of prepayment in full of an obligation which includes precomputed Page 444 U. S. 561 finance charges and a statement of the amount or method of computation of any charge that may be deducted from the amount of any rebate of such unearned finance charge that will be credited to an obligation or refunded to the customer."A fair reading of the pertinent provisions does not sustain respondents' contention that acceleration clauses are within their terms.An acceleration clause cannot be equated with a "default, delinquency, or similar charg[e]," subject to disclosure under 15 U.S.C. §§ 1638(a)(9), 1639(a)(7), and 12 CFR § 226.8(b)(4). The prerogative of acceleration affords the creditor a mechanism for collecting the outstanding portion of a debt on which there has been a partial default. In itself, acceleration entails no monetary penalty, although a creditor may independently impose such a penalty, for example, by failing to rebate unearned finance charges. A "default, delinquency, or similar charg[e]," on the other hand, self-evidently refers to a specific assessable sum. Thus, within the trade, delinquency charges are understood to be "the compensation a creditor receives on a precomputed contract for the debtor's delay in making timely instalment payments," 1 CCH Consumer Credit Guide �� 4230, 4231 (1977) (emphasis added). Acceleration is not compensatory; a creditor accelerates to avoid further delay by demanding immediate payment of the outstanding debt. See id. � 4231; Uniform Consumer Credit Code of 1968, § 2.203, official comment 2, 7 U.L.A. 315-316 (1978); § 2.204(3), id. at 317.The language employed in TILA §§ 1638(a)(9) and 1639(a)(7), and in 12 CFR § 226.8(b)(4) (1979), confirms the interpretation of "charges" as specific penalty sums. The statutory provisions speak of "charges payable in the event of late payments." (Emphasis added.) Even if one considers the burdensomeness of acceleration as a form of "charge" upon the debtor, it would hardly make sense to speak of Page 444 U. S. 562 that burden as "payable" to the creditor. Similarly Regulation Z orders disclosure of the "amount, or method of computing the amount, of any default, delinquency, or similar charges. . . ." (Emphasis added.) That command has no sensible application to the remedy of acceleration. In short, we would have to stretch these provisions beyond their obvious limits to construe them as a mandate for the disclosure of acceleration clauses. [Footnote 7]The prepayment rebate disclosure regulation, 12 CFR § 226.8(b)(7) (1979), also fails to afford direct support for an invariable specific acceleration disclosure rule. To be sure, payment by the debtor in response to acceleration might be deemed a prepayment within the ambit of that regulation. But so long as the creditor's rebate practice under acceleration is identical to its policy with respect to voluntary prepayments, separate disclosure of the acceleration policy does not seem obligatory under a literal reading of the regulation. Section 226.8(b)(7), therefore, squares with the position of the Federal Reserve Board staff that specific disclosure of acceleration rebate policy is only necessary when that policy varies from the custom with respect to voluntary prepayment rebates. FRB Official Staff Interpretation No. F0054, 12 CFR Part 226 Appendix, p. 627 (1979).IIINotwithstanding the absence of an express statutory mandate that acceleration procedures be invariably disclosed, the Page 444 U. S. 563 Court of Appeals has held that the"creditor must [always] disclose whether a rebate of unearned interest will be made upon acceleration and also disclose the method by which the amount of unearned interest will be computed if the debt is accelerated."St. Germain v. Bank of Hawaii, 573 F.2d at 577; accord, 588 F.2d at 757-758. In so deciding, the Court of Appeals in St. Germain explicitly rejected the view of the Federal Reserve Board staff that the right of acceleration need not be disclosed, and that rebate practice under acceleration must be disclosed only if it differs from the creditor's rebate policy with respect to voluntary prepayment. FRB Official Staff Interpretation No. FC-0054, supra; see FRB Public Information Letter No. 851, [1974-1977 Transfer Binder] CCH Consumer Credit Guide � 31,173; FRB Public Information Letter No. 1208, id. � 31,647; FRB Public Information Letter No. 1324, 5 CCH Consumer Credit Guide � 31,827 (1979). [Footnote 8] Rather, St. Germain declared that it would Page 444 U. S. 564"choose the direction that makes more sense to us in trying to achieve the congressional purpose of providing meaningful disclosure to the debtor about the costs of his borrowing."573 F.2d at 576-577. Page 444 U. S. 565It is a commonplace that courts will further legislative goals by filling the interstitial silences within a statute or a regulation. Because legislators cannot foresee all eventualities, judges must decide unanticipated cases by extrapolating from related statutes or administrative provisions. But legislative silence is not always the result of a lack of prescience; it may instead betoken permission or, perhaps, considered abstention from regulation. In that event, judges are not accredited to supersede Congress or the appropriate agency by embellishing upon the regulatory scheme. Accordingly, caution must temper judicial creativity in the face of legislative or regulatory silence.At the very least, that caution requires attentiveness to the views of the administrative entity appointed to apply and enforce a statute. And deference is especially appropriate in the process of interpreting the Truth in Lending Act and Regulation Z. Unless demonstrably irrational, Federal Reserve Board staff opinions construing the Act or Regulation should be dispositive for several reasons. Page 444 U. S. 566The Court has often repeated the general proposition that considerable respect is due "the interpretation given [a] statute by the officers or agency charged with its administration.'" Zenith Radio Corp. v. United States, 437 U. S. 443, 437 U. S. 450 (1978), quoting Udall v. Tallman, 380 U. S. 1, 380 U. S. 16 (1965); see, e.g., Power Reactor Co. v. Electricians, 367 U. S. 396, 367 U. S. 408 (1961). An agency's construction of its own regulations has been regarded as especially due that respect. See Bowles v. Seminole Rock Co., 325 U. S. 410, 325 U. S. 413-414 (1945). This traditional acquiescence in administrative expertise is particularly apt under TILA, because the Federal Reserve Board has played a pivotal role in "setting [the statutory] machinery in motion. . . ." Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 288 U. S. 315 (1933). As we emphasized in Mourning v. Family Publications Service, Inc., 411 U. S. 356 (1973), Congress delegated broad administrative lawmaking power to the Federal Reserve Board when it framed TILA. The Act is best construed by those who gave it substance in promulgating regulations thereunder. [Footnote 9]Furthermore, Congress has specifically designated the Federal Reserve Board and staff as the primary source for interpretation and application of truth in lending law. Because creditors need sure guidance through the "highly technical" Truth in Lending Act, S.Rep. No. 93-278, p. 13 (1973), legislators have twice acted to promote reliance upon Federal Reserve pronouncements. In 1974, TILA was amended to Page 444 U. S. 567 provide creditors with a defense from liability based upon good faith compliance with a "rule, regulation, or interpretation" of the Federal Reserve Board itself. § 406, 88 Stat. 1518, codified at 15 U.S.C. § 1640(f). The explicit purpose of the amendment was to relieve the creditor of the burden of choosing "between the Board's construction of the Act and the creditor's own assessment of how a court may interpret the Act." S.Rep. No. 93-278, supra, at 13. The same rationale prompted a further change in the statute in 1976, authorizing a liability defense for"conformity with any interpretation or approval by an official or employee of the Federal Reserve System duly authorized by the Board to issue such interpretations or approvals. . . ."§ 3(b), 90 Stat.197, codified at 15 U.S. C. § 1640 (f); see 122 Cong.Rec. 2836 (1976) (remarks of Sen. Garn); id. at 2852 (remarks of Rep. Annunzio, chairman of Consumer Affairs Subcommittee); ibid. (remarks of Rep. Rousselot); 121 Cong.Rec. 36927 (1975) (remarks of Rep. Annunzio); id. at 36927-36928 (remarks of Rep. Wylie). [Footnote 10]The enactment and expansion of § 1640(f) has significance beyond the express creation of a good faith immunity. [Footnote 11] That statutory provision signals an unmistakable congressional decision to treat administrative rulemaking and interpretation Page 444 U. S. 568 under TILA as authoritative. Moreover, language in the legislative history evinces a decided preference for resolving interpretive issues by uniform administrative decision, rather than piecemeal through litigation. [Footnote 12] See S.Rep. No. 93-278, supra at 13-14; 122 Cong.Rec. 2852 (1976) (remarks of Rep. Annunzio); 121 Cong.Rec. 36927 (1975) (remarks of Rep. Annunzio). Courts should honor that congressional choice. Thus, while not abdicating their ultimate judicial responsibility to determine the law, cf. generally SEC v. Chenery Corp., 318 U. S. 80, 318 U. S. 92-94 (1943), judges ought to refrain from substituting their own interstitial lawmaking for that of the Federal Reserve, so long as the latter's lawmaking is not irrational.Finally, wholly apart from jurisprudential considerations or congressional intent, deference to the Federal Reserve is compelled by necessity; a court that tries to chart a true course to the Act's purpose embarks upon a voyage without a compass when it disregards the agency's views. The concept of "meaningful disclosure" that animates TILA, see St. Germain, 573 F.2d at 577, cannot be applied in the abstract. Meaningful disclosure does not mean more disclosure. Rather, it describes a balance between "competing considerations of complete disclosure . . . and the need to avoid . . . [informational overload]." S.Rep 96-73, p. 3 (1979) (accompanying S. 108, Truth in Lending Simplification and Reform Act); see S.Rep. No. 95-720, pp. 2-3 (1978); 63 Federal Reserve Board Ann.Rep. 326, 349-350 (1976); Comment, Acceleration Clause Disclosure Under the Truth in Lending Act, 77 Colum.L.Rev. 649, 662-663 (1977). And striking the appropriate balance is an empirical process that entails investigation into consumer psychology and that presupposes Page 444 U. S. 569 broad experience with credit practices. Administrative agencies are simply better suited than courts to engage in such a process.The Federal Reserve Board staff treatment of acceleration disclosure rationally accommodates the conflicting demands for completeness and for simplicity. In determining that acceleration rebate practices need be disclosed only when they diverge from other prepayment rebate practices, the Federal Reserve has adopted what may be termed a "bottom-line" approach: that the most important information in a credit purchase is that which explains differing net charges and rates. Cf. S.Rep. No. 973, supra at 3-4; 63 Federal Reserve Board Ann.Rep. supra at 350-352. Although the staff might have decided that acceleration rebates are so analytically distinct from identical voluntary prepayment rebates as to warrant separate disclosure, it was reasonable to conclude, alternatively, that ordinary consumers would be concerned chiefly about differing financial consequences. [Footnote 13] Page 444 U. S. 570 Faced with an apparent lacuna in the express prescriptions of TILA and Regulation Z, the Court of Appeals had no ground for displacing the Federal Reserve staff's expert judgment.Accordingly, we decide that the Court of Appeals erred in rejecting the views of the Federal Reserve Board and staff, and holding that separate disclosure of acceleration rebate practices is always required. [Footnote 14]Reversed

U.S. Supreme CourtFord Motor Credit Co. v. Milhollin, 444 U.S. 555 (1980)Ford Motor Credit Co. v. MilhollinNo. 78-1487Argued December 4, 1979Decided February 20, 1980 *444 U.S. 555SyllabusRespondents financed their purchases of automobiles through standard retail installment contracts that were assigned to petitioner finance company. Each contract provided that respondents were to pay a precomputed finance charge, and, as required by the Truth in Lending Act (TILA) and implementing Federal Reserve Board (FRB) Regulation Z, the front page of each contract disclosed and explained certain features of the contract, including a disclosure that the buyer could prepay his obligations under the contract in full at any time prior to maturity of the final installment and that, if he did so, he would receive a rebate of the unearned portion of the finance charge. The face of the contract also stated that temporary default on a particular installment would result in a delinquency charge, but no mention was made of a clause in the contract giving the creditor a right to accelerate payment of the entire debt upon the buyer's default. Respondents thereafter brought separate suits in District Court, alleging, inter alia, that petitioner finance company had violated TILA and Regulation Z by failing to disclose on the front page of the contract that the creditor retained the right to accelerate payment of the debt. The District Court, in two of the suits, held that facial disclosure of the acceleration clauses was mandated by the provisions of TILA, 15 U.S.C. §§ 1638(a)(9), 1639(a) (7), that compel publication of "default, delinquency, or similar charges payable in the event of late payments." On a consolidated appeal, the Court of Appeals agreed that TILA imposes a general acceleration clause disclosure requirement, but rather than holding that acceleration is a default charge, the Court of Appeals based its decision on the principle that, under Regulation Z, the creditor must disclose whether a rebate of unearned interest will be made upon acceleration, and also must disclose the method by which the amount of unearned interest will be computed if the debt is accelerated. In so Page 444 U. S. 556 holding, the court rejected the FRB staff's contrary interpretation of the pertinent statutory and regulatory provisions that specific disclosure of an acceleration rebate policy is only necessary when that policy varies from the custom with respect to voluntary prepayment rebates.Held: TILA does not mandate a general rule of disclosure for acceleration clause. Pp. 444 U. S. 559-570.(a) The issue of acceleration disclosure is not governed by clear expression in the statute or regulations. An acceleration clause cannot be equated with a "default, delinquency, or similar charg[e]," subject to disclosure under §§ 1638(a)(9) and 1639(a)(7) and Regulation Z, and the prepayment rebate disclosure requirement of Regulation Z also fails to afford direct support for an invariable specific acceleration disclosure rule. Pp. 444 U. S. 559-562.(b) In the absence of an express statutory mandate that acceleration procedures be invariably disclosed, a high degree of deference to the FRB staff's consistent administrative interpretation that the statute and regulations impose no such uniform requirement is warranted. Although the staff might have decided that acceleration rebates are so analytically distinct from identical voluntary prepayment rebates as to warrant separate disclosure, it was reasonable to conclude, alternatively, that ordinary consumers would be concerned chiefly about differing financial consequences. Pp. 444 U. S. 562-570.588 F.2d 753, reversed and remanded.BRENNAN, J., delivered the opinion for a unanimous Court. BLACKMUN, J., filed a concurring opinion, in which BURGER, C.J., joined, post, p. 444 U. S. 570. Page 444 U. S. 557

1969_23

MR. JUSTICE STEWART delivered the opinion of the Court.This case, a companion to Carter v. Jury Commission of Greene County, ante, p. 396 U. S. 320, involves a challenge to the constitutionality of the system used in many counties of Georgia to select juries and school boards. The basic statutory scheme at issue is this. The county board of education consists of five freeholders. [Footnote 1] It is selected by the grand jury, [Footnote 2] which, in turn, is drawn from a jury list selected by the six-member county jury commission. [Footnote 3] The commissioners are appointed by the judge of the state superior court for the circuit in which the county is located. [Footnote 4] Page 396 U. S. 349Some 2,500 to 3,000 people live in Taliaferro County, Georgia, of whom about 60% are Negroes. [Footnote 5] The county school system consists of a grammar school and a high school, and all the students at both schools are Negroes, every white pupil having transferred elsewhere. [Footnote 6] Sandra and Calvin Turner, a Negro school child and her father who reside in that county, brought this class action against the members of the county board of education, the jury commissioners, and three named white grand jurors. [Footnote 7] Their complaint alleged that the board of education consisted entirely of white people; that it had Page 396 U. S. 350 been selected by a predominantly white grand jury, which in turn had been selected by the jury commissioners, all of whom were white people. The complaint charged that the board of education had deprived the Negro school children of textbooks, facilities, and other advantages; also that the Turners and other Negro citizens had sought unsuccessfully to communicate their dissatisfaction to the board of education.According to the appellants, the members of the county grand jury, on which white people were perennially overrepresented and Negroes underrepresented, chose only white people as members of the board of education pursuant to the Georgia constitutional and statutory provisions governing the school board selection. The complaint attacked those provisions as accounting for both the exclusion of Negroes and nonfreeholders from the board of education, and for the merely token inclusion of Negroes on the grand juries. The appellants sought (1) an injunction prohibiting enforcement of the Georgia constitutional and statutory provisions by which the board of education and grand jury were selected; (2) a declaration that the provisions were void on their face and as applied; (3) a further declaration that the various positions on the board of education, grand jury, and jury commission were vacant; (4) the appointment of a receiver for the school system and a special master for the selection of the grand jurors, and (5) $500,000 in ancillary damages.A three-judge District Court was convened pursuant to 28 U.S.C. §§ 2281 and 2284, and conducted extensive evidentiary hearings. The evidence showed that, whenever a jury commissioner thought a voter from his area of the county qualified as a potentially good juror, he offered the name for consideration to his fellow commissioners; if all agreed, the name went on the master Page 396 U. S. 351 jury list. No name of a county resident was placed on the list unless he was personally known to at least one of the jury commissioners. The commissioners looked for "people that we felt would be capable of interpreting proceedings of court and . . . render[ing] a just verdict. . . ." The state superior court judge had instructed them to put Negroes on the list. Following the compilation of the list, the commissioners "picked the ones we thought were the very best people in the county" and put them on the grand jury list. The superior court judge then drew the names of the grand jurors at random in open court. Only he could excuse from grand jury service those whose names he drew, and he denied that Negroes were ever excused out of turn, or on account of their race.At its first hearing, held in January, 1968, the District Court voiced its concern that only 11 Negroes had found their way to the 130-member grand jury list. The court adjourned for one month to enable the defendants to remedy the situation. It noted that two vacancies had opened up on the board of education and that, although the board had held an interim election, the grand jury had not yet confirmed the new members. The court suggested that, "[i]f those two men would willingly stand aside, the other members might select two outstanding Negro citizens . . . to go on the Board." The court also advised counsel for the defendants to explain the law of jury discrimination to his clients, and expressed the hope that the jury commissioners would be "generous" in their recomposition of the panel.At the adjourned hearing in February, it appeared that, three days after the first hearing, the state superior court judge had discharged the county grand jury and directed the jury commissioners to recompose the jury list. Working Page 396 U. S. 352 from the voter registration list at the last general election, [Footnote 8] the commissioners had prepared a new grand jury list containing the names of 44 Negroes and 77 white people. From this list, the superior court judge drew the names that led to the impaneling of a new grand jury of 23 members, of whom only six were Negroes. Meanwhile, the board of education had elected a Negro and a white man to fill the two vacancies, and the new grand jury had confirmed the new members in their offices.Following these developments, the District Court declined to invalidate on their face either the various provisions governing the school board and grand jury selections or the freeholder requirement for school board membership. It found that, at the commencement of suit, Negroes had been systematically excluded from the grand juries through token inclusion, but it concluded that the new grand jury list, drawn following the January hearing, was not unconstitutional. 290 F. Supp. 648. [Footnote 9]Subsequently, the District Court entered a final judgment permanently enjoining the defendant jury commissioners and their successors from systematically excluding Negroes from the Taliaferro County grand jury system. The appellants, complaining of the court's failure to hold the challenged provisions of Georgia law invalid on their face and as applied, took a direct appeal Page 396 U. S. 353 to this Court pursuant to 28 U.S.C. § 1253, and we noted probable jurisdiction, 393 U.S. 1078. [Footnote 10]IThe appellants urge that the constitutional and statutory scheme by which the Taliaferro County grand jury selects the board of education is unconstitutional on its face. They point to the discretion of the state superior Page 396 U. S. 354 court judge to exclude anyone he deems not "discreet" from appointment to the jury commission, [Footnote 11] and of the jury commissioners to eliminate from grand jury service anyone they find not "upright" and "intelligent." [Footnote 12] These provisions, the appellants say, provide the county officials an opportunity to discriminate exercised both before and after the commencement of this litigation. It is argued that the terms are so vague as to leave the judge and jury commissioners at large in the exercise of discretion, with their decisions "unguided by Page 396 U. S. 355 statutory or other guidelines." Only by excising the challenged terms from Georgia's laws, it is urged, can the jury discrimination revealed in the record of this case be eliminated.Such arguments are similar to those advanced in Carter v. Jury Commission of Greene Count, ante, p. 396 U. S. 320. Our decision in that case fairly controls disposition of the contentions here. Georgia's constitutional and statutory scheme for selecting its grand juries and boards of education is not inherently unfair, or necessarily incapable of administration without regard to race; the federal courts are not powerless to remedy unconstitutional departures from Georgia law by declaratory and injunctive relief. The challenged provisions do not refer to race; indeed, they impose on the jury commissioners the affirmative duty to supplement the jury lists by going out into the county and personally acquainting themselves with other citizens of the county whenever the jury lists in existence do not fairly represent a cross-section of the county's upright and intelligent citizens. [Footnote 13] Page 396 U. S. 356But the appellants contend that, even if the challenged provisions are not void on their face, they have been unconstitutionally applied. The District Court found that, prior to the commencement of suit, Negroes had been excluded in the administration of the grand jury system, and the appellees do not contest that finding here. [Footnote 14] The District Court also concluded that the newly composed grand jury list was constitutional, and the appellants challenge that ruling. Consideration of the issues thus presented requires a fuller statement of the event following the January hearing in the court below. Page 396 U. S. 357As noted above, after the District Court had held its first hearing, the state superior court judge discharged the grand jury then sitting and ordered the Jury commissioners to draw up a new jury list. The commissioners obtained the list of all persons registered to vote in the county in the last general election -- 2,152 names. To assist in the identification of all the people on the list, the commissioners consulted with "three Negroes that [they] brought in to work with [them] one afternoon. . . ." From the list, the commissioners eliminated 374 people for poor health and old age; 79 as under 21 years old; [Footnote 15] 93 as dead; 514 as away from the county most of the time but maintaining a permanent place of residence there; 48 who requested that they be removed from consideration; 225 about whom the commissioners could obtain no information; 33 as duplicated names, and 178"as not conforming to the statutory qualifications for juries either because of their being unintelligent or because of their not being upright citizens."The process of elimination left 608 names. The commissioners arranged the names in alphabetical order and placed every other one on the list of potential jurors. At this point, for the first time, the commissioners classified the remaining 304 people by race: 113 were Negro, 191 white people. From this list, the commissioners drew two-fifths of the names by lot for the grand jury list; a check revealed 44 Negroes and 77 white people. The state superior court judge drew from this group nine Negroes and 23 white people by lot. He excused nine, leaving a 23-member grand jury, of whom only six were Page 396 U. S. 358 Negroes. [Footnote 16] It was this grand jury that the District Court determined had been constitutionally impaneled.After the February hearing of the District Court, and at that court's request, the commissioners classified by race the persons eliminated from the voter list in arriving at the 608 persons eligible for jury service. The classification revealed that 171 of those rejected as unintelligent or not upright were Negroes -- 96% of the total removed for that reason. [Footnote 17] Although at the adjourned hearing the District Court recognized the potential for discrimination underlying the exclusion process, it did not reopen the matter following its receipt of the racial classification to consider the extraordinarily high percentage of Negroes eliminated as "unintelligent" or not "upright," or the large number of persons about whom the commissioners said they could obtain no information even though they were registered to vote in the county.The appellants insist the District Court has erred. They say that, since the grand jury selects the board of education, the situation must be viewed as one involving a distribution of voting power among the citizens of Taliaferro County in the manner of a voting apportionment case. A grand jury with only about 25% Negro membership, they say, constitutes the school board "electorate" in a county whose population is about 60% Negro. The State must offer a compelling justification, Page 396 U. S. 359 it is argued, in support of its "fencing out" such a substantial proportion of the potential Negro "electors" in the county.We do not find it necessary to consider the appellants' argument. Nor do we reach the premise upon which it rests -- that the choice of the county board of education by the grand jury, rather than delegates from local school boards turns the challenged procedure into an "election" for federal constitutional purposes. [Footnote 18] For we think that, even under long-established tests for racial discrimination in the composition of juries, the District Court erred in its determination that the new list before it had been properly compiled.The undisputed fact was that Negroes composed only 37% of the Taliaferro County citizens on the 304-member list from which the new grand jury was drawn. That figure contrasts sharply with the representation that their percentage (60) of the general Taliaferro County population would have led them to obtain in a random selection. In the absence of a countervailing explanation by the appellees, we cannot say that the underrepresentation reflected in these figures is so insubstantial as to warrant no corrective action by a federal court charged with the responsibility of enforcing constitutional guarantees.Specifically, we hold that the District Court should have responded to the elimination of 171 Negroes out of the 178 citizens disqualified for lack of "intelligence" or "uprightness." On the record as presently constituted, it is impossible to say that this purge of Negroes from the roster of potential jurors did not contribute in substantial measure to the ultimate underrepresentation. The retention of these 178 citizens might well have produced a jury list of at least an equal percentage of Page 396 U. S. 360 Negroes and white people, instead of the highly disproportionate list that actually materialized.A second factor should have called itself to the District Court's attention: the lack of information respecting the 225 citizens named on the county's voting list but unknown to the jury commissioners or their assistants. Entirely apart from the question whether the commissioners' failure to inquire into the eligibility of the 225 voters comported with their statutory duty to ensure that the jury list fairly represents a cross-section of the county's intelligent and upright citizens, [Footnote 19] the court should not have passed without response the commissioners' elimination from consideration for jury service of about 9% of the population of the entire county. In the face of the commissioners' unfamiliarity with Negroes in the community and the informality of the arrangement by which they sought to remedy the deficiency in their knowledge upon recompiling the jury list, we cannot assume that inquiry would not have led to the discovery of many qualified Negroes.In sum, the appellants demonstrated a substantial disparity between the percentages of Negro residents in the county as a whole and of Negroes on the newly constituted jury list. They further demonstrated that the disparity originated, at least in part, at the one point in the selection process where the jury commissioners invoked their subjective judgment, rather than objective criteria. The appellants thereby made out a prima facie case of jury discrimination, and the burden fell on the appellees to overcome it. [Footnote 20] Page 396 U. S. 361The testimony of the jury commissioner and the superior court judge that they included or excluded no one because of race did not suffice to overcome the appellants' prima facie case. [Footnote 21] So far, the appellees have offered no explanation for the overwhelming percentage of Negroes disqualified as not "upright" or "intelligent," or for the failure to determine the eligibility of a substantial segment of the county's already registered voters. No explanation for this state of affairs appears in the record. The evidentiary void deprives the District Court's holding of support in the record as presently constituted."If there is a 'vacuum,' it is one which the State must fill, by moving in with sufficient evidence to dispel the prima facie case of discrimination. [Footnote 22]"IIThe appellants also urge that the limitation of school board membership to freeholders violates the Equal Protection Clause of the Fourteenth Amendment. [Footnote 23] The Page 396 U. S. 362 District Court rejected this claim, finding no evidence before it"to indicate that such a qualification resulted in an invidious discrimination against any particular segment of the community, based on race or otherwise."290 F. Supp. at 652.Subsequent to the ruling of the District Court, this Court decided Kramer v. Union Free School District, 395 U. S. 621, and Cipriano v. City of Houma, 395 U. S. 701. The appellants urge that those decisions require Georgia to demonstrate a "compelling" interest in support of its freeholder requirement for school board membership. The appellees reply that Kramer and Cipriano are inapposite because they involved exclusions from voting, not from office-holding. We find it unnecessary to resolve the dispute, because the Georgia freeholder requirement must fall even when measured by the traditional test for a denial of equal protection: whether the challenged classification rests on grounds wholly irrelevant to the achievement of a valid state objective. [Footnote 24]We may assume that the appellants have no right to be appointed to the Taliaferro County board of education. [Footnote 25] But the appellants and the members of their class do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications. [Footnote 26] The State may not deny to some the privilege of holding public office that Page 396 U. S. 363 it extends to others on the basis of distinctions that violate federal constitutional guarantees. [Footnote 27]Georgia concedes that "the desirability and wisdom of freeholder' requirements for State or county political office may indeed be open to question. . . ." But apart from its contention that, prior decisions of this Court foreclose any challenge to the constitutionality of such "freeholder" requirements -- a contention we think ill-founded [Footnote 28] -- the sole argument Georgia advances in support of its statute is that nothing in its constitution or laws specifies any minimum quantity or value for the real property the freeholder must own. Thus, says Georgia, anyone who seriously aspires to county school board membership "would be able to obtain a conveyance of the single square inch of land he would require to become a `freeholder.'"If we take Georgia at its word, it is difficult to conceive of any rational state interest underlying its requirement. But even absent Georgia's own indication of the insubstantiality of its interest in preserving the freeholder requirement, it seems impossible to discern any interest the qualification can serve. It cannot be seriously urged that a citizen in all other respects qualified to sit on a school board must also own real property if he is to Page 396 U. S. 364 participate responsibly in educational decisions, without regard to whether he is a parent with children in the local schools, a lessee who effectively pays the property taxes of his lessor as part of his rent, or a state and federal taxpayer contributing to the approximately 85% of the Taliaferro County annual school budget derived from sources other than the board of education's own levy on real property.Nor does the lack of ownership of realty establish a lack of attachment to the community and its educational values. However reasonable the assumption that those who own realty do poses such an attachment, Georgia may not rationally presume that that quality is necessarily wanting in all citizens of the county whose estates are less than freehold. [Footnote 29] Whatever objectives Georgia seeks to obtain by its "freeholder" requirement must be secured, in this instance at least, by means more finely tailored to achieve the desired goal. [Footnote 30] Without excluding the possibility that other circumstances might present themselves in which a property qualification for office-holding could survive constitutional scrutiny, we cannot say, on the record before us, that the present freeholder requirement for membership on the county board of education amounts to anything more than invidious discrimination.The judgment below is vacated, and the cause is remanded to the District Court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtTurner v. Fouche, 396 U.S. 346 (1970)Turner v. FoucheNo. 23Argued October 20, 1966Decided January 19, 1970396 U.S. 346SyllabusAppellants, Negro residents of Taliaferro County, Georgia, brought this action to challenge the constitutionality of the statutory system used in Taliaferro and many other Georgia counties to select juries and school boards. The scheme provides for a county school board of five freeholders, which is selected by the grand jury, which in turn is drawn from a jury list selected by the six county jury commissioners, who are appointed by the state superior court judge for the circuit in which the county is located. Although the population of Taliaferro County is about 60% Negro, the school board members were white, selected by a predominantly white grand jury, which had been selected by white jury commissioners. The complaint attacked Georgia's constitutional and statutory provisions for school board selection as accounting for the exclusion of Negroes and nonfreeholders from the school board and for the merely token inclusion of Negroes on the grand juries. A three-judge District Court, after a hearing, voiced concern that only 11 Negroes were on the 130-member grand jury list and adjourned to enable the defendants to remedy the situation. It noted that there were two school board vacancies and suggested that Negroes might be selected. A new grand jury list was prepared containing the names of 44 Negroes and 77 whites, and one of the school board vacancies was filled by a Negro. From the grand jury list, the superior court judge drew names leading to the impaneling of a new grand jury, of whose 23 members six were Negroes. To obtain the new grand jury roll, the jury commissioners obtained the list of 2,152 names of registered voters, and, aided by three Negroes, eliminated many names for poor health and old age, underage, death, absence from the county, and duplication, plus 225 about whom the commissioners could obtain no information and 178 (of whom 171 were Negroes) as not meeting statutory qualifications either because they were "unintelligent" or not "upright citizens." The 608 names left were alphabetically listed, and every other one was placed on the list of potential jurors. Of these 304, 113 (37%) were Negroes. Page 396 U. S. 347 The District Court found that, prior to the commencement of the suit, Negroes had been systematically excluded from grand juries through token inclusion, but that the new grand jury list was constitutional, and it declined to invalidate on their face the provisions governing school board and grand jury selections or the freeholder requirement for school board membership. The court did enjoin the jury commissioners from systematically excluding Negroes from the grand jury system.Held:1. The constitutional and statutory scheme by which the Taliaferro County grand jury selects the school board is not unconstitutional on its face, as the scheme is not inherently unfair, or necessarily incapable of administration without regard to race. Carter v. Jur Commission, ante, p. 396 U. S. 320. Pp. 396 U. S. 353-355.2. The District Court erred in its determination that the new grand jury list had been properly compiled. Pp. 396 U. S. 359-361.(a) The underrepresentation of Negroes, as reflected by the fact that the 304-member list from which the new grand jury was drawn contained only 37% Negroes, compared with 60% Negroes in the county, should, absent a countervailing explanation by the appellees, warrant corrective action by a federal court charged with enforcing constitutional guarantees. P. 396 U. S. 359.(b) The District Court should have responded to the elimination of 171 Negroes out of the 178 citizens disqualified for lack of "intelligence" or "uprightness," as, on this record, it cannot be said that this purge of Negroes did not contribute substantially to the underrepresentation. Pp. 396 U. S. 359-360.(c) The District Court should have focused on the elimination of the 225 citizens for lack of information, as inquiry might have led to the discovery of many Negroes qualified for jury service. P. 396 U. S. 360.(d) Appellants made out a prima facie case of jury discrimination, and the burden which fell on the appellees to overcome it was not met. Pp. 396 U. S. 360-361.3. Appellants and members of their class have a constitutional right to be considered for public service without the burden of invidiously discriminatory qualifications, and, on this record, the limitation of school board membership to freeholders violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 396 U. S. 361-364.290 F. Supp. 648, vacated and remanded. Page 396 U. S. 348

1975_74-1151

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This case is a logical and anticipated corollary to Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973), for it raises issues secondary to those that were then before the Court. Indeed, some of the questions now presented were forecast and reserved in Roe and Doe. 410 U.S. at 410 U. S. 165 n. 67.IAfter the decisions in Roe and Doe, this Court remanded for reconsideration a pending Missouri federal case in which the State's then-existing abortion legislation, Page 428 U. S. 56 Mo.Rev.Stat. §§ 559.100, 542.380, and 563.300 (1969), was under constitutional challenge. Rodgers v. Danforth, 410 U.S. 949 (1973). A three-judge federal court for the Western District of Missouri, in an unreported decision, thereafter declared the challenged Missouri statutes unconstitutional and granted injunctive relief. On appeal here, that judgment was summarily affirmed. Danforth v. Rodgers, 414 U.S. 1035 (1973).In June, 1974, somewhat more than a year after Roe and Doe had been decided, Missouri's 77th General Assembly, in its Second Regular Session, enacted House Committee Substitute for House Bill No. 1211 (hereinafter Act). The legislation was approved by the Governor on June 14, 1974, and became effective immediately by reason of an emergency clause contained in § A of the statute. The Act is set forth in full as the 428 U.S. 52app|>Appendix to this opinion. It imposes a structure for the control and regulation of abortions in Missouri during all stages of pregnancy.IIThree days after the Act became effective, the present litigation was instituted in the United States District Court for the Eastern District of Missouri. The plaintiffs are Planned Parenthood of Central Missouri, a not-for-profit Missouri corporation which maintains a facility in Columbia, Mo., for the performance of abortions; David Hall, M.D.; and Michael Freiman, M.D. Doctor Hall is a resident of Columbia, is licensed as a physician in Missouri, is chairman of the Department and Professor of Obstetrics and Gynecology at the University of Missouri Medical School at Columbia, and supervises abortions at the Planned Parenthood facility. He was described by the three-judge court in the 1973 case as one of four plaintiffs who were "eminent, Missouri-licensed obstetricians and gynecologists." Jurisdictional Page 428 U. S. 57 Statement, App. 7, in Danforth v. Rodgers, No. 73-426, O.T. 1973. Doctor Freiman is a resident of St. Louis, is licensed as a physician in Missouri, is an instructor of Clinical Obstetrics and Gynecology at Washington University Medical School, and performs abortions at two St. Louis hospitals and at a clinic in that city.The named defendants are the Attorney General of Missouri and the Circuit Attorney of the city of St. Louis "in his representative capacity" and "as the representative of the class of all similar Prosecuting Attorneys of the various counties of the State of Missouri." Complaint 10.The plaintiffs brought the action on their own behalf and, purportedly,"on behalf of the entire class consisting of duly licensed physicians and surgeons presently performing or desiring to perform the termination of pregnancies and on behalf of the entire class consisting of their patients desiring the termination of pregnancy, all within the State of Missouri."Id. at 9. Plaintiffs sought declaratory relief and also sought to enjoin enforcement of the Act on the ground, among others, that certain of its provisions deprived them and their patients of various constitutional rights: "the right to privacy in the physician-patient relationship"; the physicians' "right to practice medicine according to the highest standards of medical practice"; the female patients' right to determine whether to bear children; the patients' "right to life due to the inherent risk involved in childbirth" or in medical procedures alternative to abortion; the physicians' "right to give and plaintiffs' patients' right to receive safe and adequate medical advice and treatment pertaining to the decision of whether to carry a given pregnancy to term and the method of termination"; the patients' right under the Eighth Amendment to be free from cruel and unusual punishment "by forcing Page 428 U. S. 58 and coercing them to bear each pregnancy they conceive"; and, by being placed "in the position of decision making beset with . . . inherent possibilities of bias and conflict of interest," the physician's right to due process of law guaranteed by the Fourteenth Amendment. Id. at 10-11.The particular provisions of the Act that remained under specific challenge at the end of trial were § 2(2), defining the term "viability"; § 3(2), requiring from the woman, prior to submitting to abortion during the first 12 weeks of pregnancy, a certification in writing that she consents to the procedure and "that her consent is informed and freely given and is not the result of coercion"; § 3(3), requiring, for the same period,"the written consent of the woman's spouse, unless the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother;"§ 3(4), requiring, for the same period,"the written consent of one parent or person in loco parentis of the woman if the woman is unmarried and under the age of eighteen years, unless the abortion is certified by a licensed physician as necessary in order to preserve the life of the mother;"§ 6(1), requiring the physician to exercise professional care "to preserve the life and health of the fetus" and, failing such, deeming him guilty of manslaughter and making him liable in an action for damages; § 7, declaring an infant who survives "an attempted abortion which was not performed to save the life or health of the mother" to be "an abandoned ward of the state under the jurisdiction of the juvenile court," and depriving the mother, and also the father if he consented to the abortion, of parental rights; § 9, the legislative finding that the method of abortion known as saline amniocentesis "is deleterious to maternal health," and prohibiting that method after the first 12 weeks of pregnancy; and §§ 10 Page 428 U. S. 59 and 11, imposing reporting and maintenance of record requirements for health facilities and for physicians who perform abortions.The case was presented to a three-judge District Court convened pursuant to the provisions of 28 U.S.C. §§ 2281 and 2284. 392 F. Supp. 1362 (1975). The court ruled that the two physician plaintiffs had standing, inasmuch as § 6(1) provides that the physician who fails to exercise the prescribed standard of professional care due the fetus in the abortion procedure shall be guilty of manslaughter, and § 14 provides that any person who performs or aids in the performance of an abortion contrary to the provisions of the Act shall be guilty of a misdemeanor. 392 F. Supp. at 1366-1367. Due to this "obvious standing" of the two physicians, id. at 1367, the court deemed it unnecessary to determine whether Planned Parenthood also had standing.On the issues as to the constitutionality of the several challenged sections of the Act, the District Court, largely by a divided vote, ruled that all except the first sentence of § 6(1) withstood the attack. That sentence was held to be constitutionally impermissible because it imposed upon the physician the duty to exercise at all stages of pregnancy "that degree of professional skill, care and diligence to preserve the life and health of the fetus" that "would be required . . . to preserve the life and health of any fetus intended to be born." Inasmuch as this failed to exclude the stage of pregnancy prior to viability, the provision was "unconstitutionally overbroad." 392 F. Supp. at 1371.One judge concurred in part and dissented in part. Id. at 1374. He agreed with the majority as to the constitutionality of §§ 2(2), 3(2), 10, and 11, respectively relating to the definition of "viability," the woman's prior written consent, maintenance of records, Page 428 U. S. 60 and retention af records. He also agreed with the majority that § 6(1) was unconstitutionally overbroad. He dissented from the majority opinion upholding the constitutionality of §§ 3(3), 3(4), 7, and 9, relating, respectively, to spousal consent, parental consent, the termination of parental rights, and the proscription of saline amniocentesis.In No. 74-1151, the plaintiffs appeal from that part of the District Court's judgment upholding sections of the Act as constitutional and denying injunctive relief against their application and enforcement. In No. 74-1419, the defendant Attorney General cross-appeals from that part of the judgment holding § 6(1) unconstitutional and enjoining enforcement thereof. We granted the plaintiffs' application for stay of enforcement of the Act pending appeal. 420 U.S. 918 (1975). Probable jurisdiction of both appeals thereafter was noted. 423 U.S. 819 (1975).For convenience, we shall usually refer to the plaintiffs as "appellants" and to both named defendants as "appellees."IIIIn Roe v. Wade, the Court concluded that the"right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."410 U.S. at 410 U. S. 153. It emphatically rejected, however, the proffered argument"that the woman's right is absolute, and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason, she alone chooses."Ibid. Instead, Page 428 U. S. 61 this right "must be considered against important state interests in regulation." Id. at 410 U. S. 154.The Court went on to say that the "pregnant woman cannot be isolated in her privacy," for she "carries an embryo and, later, a fetus." Id. at 410 U. S. 159. It was therefore"reasonable and appropriate for a State to decide that, at some point in time, another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole, and any right of privacy she possesses must be measured accordingly."Ibid. The Court stressed the measure of the State's interest in "the light of present medical knowledge." Id. at 410 U. S. 163. It concluded that the permissibility of state regulation was to be viewed in three stages:"For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician,"without interference from the State. Id. at 410 U. S. 164. The participation by the attending physician in the abortion decision, and his responsibility in that decision, thus, were emphasized. After the first stage, as so described, the State may, if it chooses, reasonably regulate the abortion procedure to preserve and protect maternal health. Ibid. Finally, for the stage subsequent to viability, a point purposefully left flexible for professional determination, and dependent upon developing medical skill and technical ability, [Footnote 1] the State may regulate an abortion to protect the life of the fetus and even may proscribe abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Id. at 410 U. S. 163-165. Page 428 U. S. 62IVWith the exception specified in n 2, infra, we agree with the District Court that the physician appellants clearly have standing. This was established in Doe v. Bolton, 410 U.S. at 410 U. S. 188. Like the Georgia statutes challenged in that case,"[t]he physician is the one against whom [the Missouri Act] directly operate[s] in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. [Footnote 2]"Ibid.Our primary task, then, is to consider each of the Page 428 U. S. 63 challenged provisions of the new Missouri abortion statute in the particular light of the opinions and decisions in Roe and in Doe. To this we now turn, with the assistance of helpful briefs from both sides and from some of the amici.AThe definition of viability. Section 2(2) of the Act defines "viability" as"that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life supportive systems."Appellants claim that this definition violates and conflicts with the discussion of viability in our opinion in Roe. 410 U.S. at 410 U. S. 160, 410 U. S. 163. In particular, appellants object to the failure of the definition to contain any reference to a gestational time period, to its failure to incorporate and reflect the three stages of pregnancy, to the presence of the word "indefinitely," and to the extra burden of regulation imposed. It is suggested that the definition expands the Court's definition of viability, as expressed in Roe, and amounts to a legislative determination of what is properly a matter for medical judgment. It is said that the "mere possibility of momentary survival is not the medical standard of viability." Brief for Appellants 67.In Roe, we used the term "viable," properly we thought, to signify the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid," and presumably capable of "meaningful life outside the mother's womb," 410 U.S. at 410 U. S. 160, 410 U. S. 163. We noted that this point "is usually placed" at about seven months or 28 weeks, but may occur earlier. Id. at 410 U. S. 160.We agree with the District Court, and conclude that the definition of viability in the Act does not conflict with what was said and held in Roe. In fact, we believe that, Page 428 U. S. 64 § 2(2), even when read in conjunction with § 5 (proscribing an abortion "not necessary to preserve the life or health of the mother . . . unless the attending physician first certifies with reasonable medical certainty that the fetus is not viable"), the constitutionality of which is not explicitly challenged here, reflects an attempt on the part of the Missouri General Assembly to comply with our observations and discussion in Roe relating to viability. Appellant Hall, in his deposition, had no particular difficulty with the statutory definition. [Footnote 3] As noted above, we recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility of the term. Section 2(2) does the same. Indeed, one might argue, as the appellees do, that the presence of the statute's words "continued indefinitely" favor, rather than disfavor, the appellants, for, arguably, the point when life can be "continued indefinitely outside the womb" may well occur later in pregnancy than the point where the fetus is "potentially able to live outside the mother's womb." Roe v. Wade, 410 U.S. at 410 U. S. 160.In any event, we agree with the District Court that it is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period. The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician. The definition of viability in § 2(2) merely reflects this fact. The appellees do not contend otherwise, for they insist Page 428 U. S. 65 that the determination of viability rests with the physician in the exercise of his professional judgment. [Footnote 4]We thus do not accept appellants' contention that a specified number of weeks in pregnancy must be fixed by statute as the point of viability. See Wolfe v. Schroering, 388 F. Supp. 631, 637 (WD Ky.1974); Hodgson v. Anderson, 378 F. Supp. 1008, 1016 (Minn.1974), dismissed for want of jurisdiction sub nom. Spannaus v. Hodgson, 420 U.S. 903 (1975). [Footnote 5]We conclude that the definition in § 2(2) of the Act does not circumvent the limitations on state regulation outlined in Roe. We therefore hold that the Act's definition of "viability" comports with Roe and withstands the constitutional attack made upon it in this litigation.BThe woman's consent. Under § 3(2) of the Act, a woman, prior to submitting to an abortion during the first 12 weeks of pregnancy, must certify in writing her consent to the procedure and "that her consent is informed and freely given, and is not the result of coercion." Appellants argue that this requirement is violative of Page 428 U. S. 66 Roe v. Wade,410 U.S. at 410 U. S. 164-165, by imposing an extra layer and burden of regulation on the abortion decision. See Doe v. Bolton, 410 U.S. at 410 U. S. 195-200. Appellants also claim that the provision is overbroad and vague.The District Court's majority relied on the propositions that the decision to terminate a pregnancy, of course, "is often a stressful one," and that the consent requirement of § 3(2) "insures that the pregnant woman retains control over the discretions of her consulting physician." 392 F. Supp. at 1368, 1369. The majority also felt that the consent requirement "does not single out the abortion procedure, but merely includes it within the category of medical operations for which consent is required." [Footnote 6] Id. at 1369. The third judge joined the majority in upholding § 3(2), but added that the written consent requirement was "not burdensome or chilling," and manifested "a legitimate interest of the state that this important decision has in fact been made by the person constitutionally empowered to do so." 392 F. Supp. at 1374. He went on to observe that the requirement "in no way interposes the state or third parties in the decisionmaking process." Id. at 1375.We do not disagree with the result reached by the District Court as to § 3(2). It is true that Doe and Roe clearly establish that the State may not restrict the decision of the patient and her physician regarding abortion during the first stage of pregnancy. Despite the fact that apparently no other Missouri statute, with the exceptions referred to in n 6, supra, requires a Page 428 U. S. 67 patient's prior written consent to a surgical procedure, [Footnote 7] the imposition by § 3(2) of such a requirement for termination of pregnancy even during the first stage, in our view, is not, in itself, an unconstitutional requirement. The decision to abort, indeed, is an important and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences. The woman is the one primarily concerned, and her awareness of the decision and its significance may be assured, constitutionally, by the State to the extent of requiring her prior written consent.We could not say that a requirement imposed by the State that a prior written consent for any surgery would be unconstitutional. As a consequence, we see no constitutional defect in requiring it only for some types of surgery as, for example, an intracardiac procedure, or where the surgical risk is elevated above a specified mortality level, or, for that matter, for abortions. [Footnote 8]CThe spouse's consent. Section 3(3) requires the prior written consent of the spouse of the woman seeking an abortion during the first 12 weeks of pregnancy, unless Page 428 U. S. 68 "the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother." [Footnote 9]The appellees defend § 3(3) on the ground that it was enacted in the light of the General Assembly's "perception of marriage as an institution," Brief for Appellee Danforth 34, and that any major change in family status is a decision to be made jointly by the marriage partners. Reference is made to an abortion's possible effect on the woman's childbearing potential. It is said that marriage always has entailed some legislatively imposed limitations: reference is made to adultery and bigamy as criminal offenses; to Missouri's general requirement, Mo.Rev.Stat. § 453.030.3 (1969), that, for an adoption of a child born in wedlock, the consent of both parents is necessary; to similar joint consent requirements imposed by a number of States with respect to artificial insemination and the legitimacy of children so conceived; to the laws of two States requiring spousal consent for voluntary sterilization; and to the long-established requirement of spousal consent for the effective disposition of an interest in real property. It is argued that"[r]ecognizing that the consent of both parties is generally necessary . . . to begin a family, the legislature has determined that a change in the family structure set in motion by mutual consent should be terminated only by mutual consent,"Brief for Appellee Danforth 38, and that what the legislature did was to exercise its inherent policymaking power "for what was believed to be in the best interests of all the people of Missouri." Id. at 40.The appellants, on the other hand, contend that § 3(3) obviously is designed to afford the husband the right unilaterally to prevent or veto an abortion, whether or Page 428 U. S. 69 not he is the father of the fetus, and that this not only violates Roe and Doe, but is also in conflict with other decided cases. See, e.g., Poe v. Gerstein, 517 F.2d 787, 794-796 (CA5 1975), appeal docketed, No. 75-713; Wolfe v. Schroering, 388 F.Supp. at 636-637; Doe v. Rampton, 366 F. Supp. 189, 193 (Utah 1973). They also refer to the situation where the husband's consent cannot be obtained because he cannot be located. And they assert that § 3(3) is vague and overbroad.In Roe and Doe, we specifically reserved decision on the question whether a requirement for consent by the father of the fetus, by the spouse, or by the parents, or a parent, of an unmarried minor, may be constitutionally imposed. 410 U.S. at 410 U. S. 165 n. 67. We now hold that the State may not constitutionally require the consent of the spouse, as is specified under § 3(3) of the Missouri Act, as a condition for abortion during the first 12 weeks of pregnancy. We thus agree with the dissenting judge in the present case, and with the courts whose decisions are cited above, that the State cannot"delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy."392 F. Supp. at 1375. Clearly, since the State cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period.We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying. Neither has this Court failed to appreciate the importance of the marital relationship in our society. See, e.g., Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 486 (1965); Maynard v. Hill, 125 U.S. Page 428 U. S. 70 190, 125 U. S. 211 (1888). [Footnote 10] Moreover, we recognize that the decision whether to undergo or to forgo an abortion may have profound effects on the future of ay marriage, effects that are both physical and mental, and possibly deleterious. Notwithstanding these factors, we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy when the State itself lacks that right. See Eisenstadt v. Baird, 405 U. S. 438, 405 U. S. 453 (1972). [Footnote 11] Page 428 U. S. 71It seems manifest that, ideally, the decision to terminate a pregnancy should be one concurred in by both the wife and her husband. No marriage my be viewed as harmonious or successful if the marriage partners are fundamentally divided on so important and vital an issue. But it is difficult to believe that the goal of fostering mutuality and trust in a marriage, and of strengthening the marital relationship and the marriage institution, will be achieved by giving the husband a veto power exercisable for any reason whatsoever or for no reason at all. Even if the State had the ability to delegate to the husband a power it itself could not exercise, it is not at all likely that such action would further, as the District Court majority phrased it, the "interest of the state in protecting the mutuality of decisions vital to the marriage relationship."392 F. Supp. at 1370.We recognize, of course, that, when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that, when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor. Cf. Roe v Wade, 410 U.S. at 410 U. S. 153.We conclude that § 3(3) of the Missouri Act is inconsistent with the standards enunciated in Roe v. Wade, 410 U.S. at 410 U. S. 164-165, and is unconstitutional. It is therefore unnecessary for us to consider the appellants' Page 428 U. S. 72 additional challenges to § 3(3) based on vagueness and overbreadth.DParental consent. Section 3(4) requires, with respect to the first 12 weeks of pregnancy, where the woman is unmarried and under the age of 18 years, the written consent of a parent or person in loco parentis unless, again, "the abortion is certified by a licensed physician as necessary in order to preserve the life of the mother." It is to be observed that only one parent need consent.The appellees defend the statute in several ways. They point out that the law properly may subject minors to more stringent limitations than are permissible with respect to adults, and they cite, among other cases, Prince v. Massachusetts, 321 U. S. 158 (1944), and McKeiver v. Pennsylvania, 403 U. S. 528 (1971). Missouri law, it is said, "is replete with provisions reflecting the interest of the state in assuring the welfare of minors," citing statutes relating to a guardian ad litem for a court proceeding, to the care of delinquent and neglected children, to child labor, and to compulsory education. Brief for Appellee Danforth 42. Certain decisions are considered by the State to be outside the scope of a minor's ability to act in his own best interest or in the interest of the public, citing statutes proscribing the sale of firearms and deadly weapons to minors without parental consent, and other statutes relating to minors' exposure to certain types of literature, the purchase by pawnbrokers of property from minors, and the sale of cigarettes and alcoholic beverages to minors. It is pointed out that the record contains testimony to the effect that children of tender years (even ages 10 and 11) have sought abortions. Thus, a State's permitting a child to obtain an abortion without the counsel of an adult"who has responsibility Page 428 U. S. 73 or concern for the child would constitute an irresponsible abdication of the State's duty to protect the welfare of minors."Id. at 44. Parental discretion, too, has been protected from unwarranted or unreasonable interference from the State, citing Meyer v. Nebraska, 262 U. S. 390 (1923); Pierce v. Society of Sisters, 268 U. S. 510 (1925); Wisconsin v. Yoder, 406 U. S. 205 (1972). Finally, it is said that § 3(4) imposes no additional burden on the physician, because, even prior to the passage of the Act, the physician would require parental consent before performing an abortion on a minor.The appellants, in their turn, emphasize that no other Missouri statute specifically requires the additional consent of a minor's parent for medical or surgical treatment, and that, in Missouri, a minor legally may consent to medical services for pregnancy (excluding abortion), venereal disease, and drug abuse. Mo.Rev.Stat. §§ 431.061-431.063 (Supp. 1975). The result of § 3(4), it is said, "is the ultimate supremacy of the parents' desires over those of the minor child, the pregnant patient." Brief for Appellants 93. It is noted that, in Missouri, a woman under the age of 18 who marries with parental consent does not require parental consent to abort, and yet her contemporary who has chosen not to marry must obtain parental approval.The District Court majority recognized that, in contrast to § 3(3), the State's interest in protecting the mutuality of a marriage relationship is not present with respect to § 3(4). It found "a compelling basis," however, in the State's interest "in safeguarding the authority of the family relationship." 392 F. Supp. at 1370. The dissenting judge observed that one could not seriously argue that a minor must submit to an abortion if her parents insist, and he could not see"why she would not be entitled to the same right of self-determination now Page 428 U. S. 74 explicitly accorded to adult women, provided she is sufficiently mature to understand the procedure and to make an intelligent assessment of her circumstances with the advice of her physician."Id. at 1376.Of course, much of what has been said above, with respect to § 3(3) applies with equal force to § 3(4). Other courts that have considered the parental consent issue in the light of Roe and Doe, have concluded that a statute like § 3(4) does not withstand constitutional scrutiny. See, e.g., Poe v. Gerstein, 517 F.2d at 792; Wolfe v. Schroering, 388 F.Supp. at 636-637; Doe v. Rampton, 366 F. Supp. at 193, 199; State v. Koome, 84 Wash. 2d 901, 530 P.2d 260 (1975).We agree with appellants and with the courts whose decisions have just been cited that the State may not impose a blanket provision, such as § 3(4), requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy. Just as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent.Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution, and possess constitutional rights. See, e.g., Breed v. Jones, 421 U. S. 519 (1975); Goss v. Lopez, 419 U. S. 565 (1975); Tinker v. Des Moines School Dist., 393 U. S. 503 (1969); In re Gault, 387 U. S. 1 (1967). The Court indeed, however, long has recognized that the State has somewhat broader authority to regulate the activities of children than of adults. Page 428 U. S. 75 Prince v. Massachusetts, 321 U.S. at 321 U. S. 170; Ginsberg v. New York, 390 U. S. 629 (1968). It remains, then, to examine whether there is any significant state interest in conditioning an abortion on the consent of a parent or person in loco parentis that is not present in the case of an adult.One suggested interest is the safeguarding of the family unit and of parental authority. 392 F. Supp. at 1370. It is difficult, however, to conclude that providing a parent with absolute power to overrule a determination, made by the physician and his minor patient, to terminate the patient's pregnancy will serve to strengthen the family unit. Neither is it likely that such veto power will enhance parental authority or control where the minor and the nonconsenting parent are so fundamentally in conflict and the very existence of the pregnancy already has fractured the family structure. Any independent interest the parent may have in the termination of the minor daughter's pregnancy is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant.We emphasize that our holding that § 3(4) is invalid does not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy. See Bellotti v. Baird, post, p. 428 U. S. 132. The fault with § 3(4) is that it imposes a special consent provision, exercisable by a person other than the woman and her physician, as a prerequisite to a minor's termination of her pregnancy, and does so without a sufficient justification for the restriction. It violates the strictures of Roe and Doe.ESaline amniocentesis. Section 9 of the statute prohibits the use of saline amniocentesis, as a method or technique of abortion, after the first 12 weeks of pregnancy. Page 428 U. S. 76 It describes the method as one whereby the amniotic fluid is withdrawn and "a saline or other fluid" is inserted into the amniotic sac. The statute imposes this proscription on the ground that the technique "is deleterious to maternal health," and places it in the form of a legislative finding. Appellants challenge this provision on the ground that it operates to preclude virtually all abortions after the first trimester. This is so, it is claimed, because a substantial percentage, in the neighborhood of 70% according to the testimony, of all abortions performed in the United States after the first trimester are effected through the procedure of saline amniocentesis. Appellants stress the fact that the alternative methods of hysterotomy and hysterectomy are significantly more dangerous and critical for the woman than the saline technique; they also point out that the mortality rate for normal childbirth exceeds that where saline amniocentesis is employed. Finally, appellants note that the perhaps safer alternative of prostaglandin instillation, suggested and strongly relied upon by the appellees, at least at the time of the trial, is not yet widely used in this country.We held in Roe that, after the first stage,"the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health."410 U.S. at 410 U. S. 164. The question with respect to § 9 therefore is whether the flat prohibition of saline amniocentesis is a restriction which "reasonably relates to the preservation and protection of maternal health." Id. at 410 U. S. 163. The appellees urge that what the Missouri General Assembly has done here is consistent with that guideline, and is buttressed by substantial supporting medical evidence in the record to which this Court should defer. Page 428 U. S. 77The District Court's majority determined, on the basis of the evidence before it, that the maternal mortality rate in childbirth does, indeed, exceed the morality rate where saline amniocentesis is used. Therefore, the majority acknowledged, § 9 could be upheld only if there were safe alternative methods of inducing abortion after the first 12 weeks. 392 F. Supp. at 1373. Referring to such methods as hysterotomy, hysterectomy, "mechanical means of inducing abortion," and prostaglandin injection, the majority said that at least the latter two techniques were safer than saline. Consequently, the majority concluded, the restriction in § 9 could be upheld as reasonably related to maternal health.We feel that the majority, in reaching its conclusion, failed to appreciate and to consider several significant facts. First, it did not recognize the prevalence, as the record conclusively demonstrates, of the use of saline amniocentesis as an accepted medical procedure in this country; the procedure, as noted above, is employed in a substantial majority (the testimony from both sides ranges from 68% to 80%) of all post-first-trimester abortions. Second, it failed to recognize that, at the time of trial, there were severe limitations on the availability of the prostaglandin technique, which, although promising, was used only on an experimental basis until less than two years before. See Wolfe v. Schroerin, 388 F. Supp. at 637, where it was said that at that time (1974), there were "no physicians in Kentucky competent in the technique of prostaglandin amnio infusion." And appellees offered no evidence that prostaglandin abortions were available in Missouri. [Footnote 12] Third, the statute's Page 428 U. S. 78 reference to the insertion of "a saline or other fluid" appears to include within its proscription the intra-amniotic injection of prostaglandin itself, and other methods that may be developed in the future and that may prove highly effective and completely safe. Finally, the majority did not consider the anomaly inherent in § 9 when it proscribes the use of saline, but does not prohibit techniques that are many times more likely to result in maternal death. See 392 F. Supp. at 1378 n. 8 (dissenting opinion).These unappreciated or overlooked factors place the State's decision to bar use of the saline method in a completely different light. The State, through § 9, would prohibit the use of a method which the record shows is the one most commonly used nationally by physicians after the first trimester, and which is safer, with respect to maternal mortality, than even continuation of the pregnancy until normal childbirth. Moreover, Page 428 U. S. 79 as a practical matter, it forces a woman and her physician to terminate her pregnancy by methods more dangerous to her health than the method outlawed.As so viewed, particularly in the light of the present unavailability -- as demonstrated by the record -- of the prostaglandin technique, the outright legislative proscription of saline fails as a reasonable regulation for the protection of maternal health. It comes into focus, instead, as an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority of abortions after the first 12 weeks. As such, it does not withstand constitutional challenge. See Wolfe v. Schroering, 388 F. Supp. at 637.FRecordkeeping. Sections 10 and 11 of the Act impose recordkeeping requirements for health facilities and physicians concerned with abortions irrespective of the pregnancy stage. Under § 10, each such facility and physician is to be supplied with forms"the purpose and function of which shall be the preservation of maternal health and life by adding to the sum of medical knowledge through the compilation of relevant maternal health and life data and to monitor all abortions performed to assure that they are done only under and in accordance with the provisions of the law."The statute states that the information on the forms "shall be confidential and shall be used only for statistical purposes." The "records, however, may be inspected and health data acquired by local, state, or national public health officers." Under § 11, the records are to be kept for seven years in the permanent files of the health facility where the abortion was performed.Appellants object to these reporting and recordkeeping provisions on the ground that they, too, impose an extra Page 428 U. S. 80 layer and burden of regulation, and that they apply throughout all stages of pregnancy. All the judges of the District Court panel, however, viewed these provisions as statistical requirements "essential to the advancement of medical knowledge," and as nothing that would "restrict either the abortion decision itself or the exercise of medical judgment in performing an abortion." 392 F. Supp. at 1374.One may concede that there are important and perhaps conflicting interests affected by recordkeeping requirements. On the one hand, maintenance of records indeed may be helpful in developing information pertinent to the preservation of maternal health. On the other hand, as we stated in Roe, during the first stage of pregnancy, the State may impose no restrictions or regulations governing the medical judgment of the pregnant woman's attending physician with respect to the termination of her pregnancy. 410 U.S. at 410 U. S. 163, 410 U. S. 164. Furthermore, it is readily apparent that one reason for the recordkeeping requirement, namely, to assure that all abortions in Missouri are performed in accordance with the Act, fades somewhat into insignificance in view of our holding above as to spousal and parental consent requirements.Recordkeeping and reporting requirements that are reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy are permissible. This surely is so for the period after the first stage of pregnancy, for then the State may enact substantive as well as recordkeeping regulations that are reasonable means of protecting maternal health. As to the first stage, one may argue forcefully, as the appellants do, that the State should not be able to impose any recordkeeping requirements that significantly differ from those imposed with respect to other, Page 428 U. S. 81 and comparable, medical or surgical procedures. We conclude, however, that the provisions of §§ 10 and 11, while perhaps approaching impermissible limits, are not constitutionally offensive in themselves. Recordkeeping of this kind, if not abused or overdone, can be useful to the State's interest in protecting the health of its female citizens, and may be a resource that is relevant to decisions involving medical experience and judgment. [Footnote 13] The added requirements for confidentiality, with the sole exception for public health officers, and for retention for seven years, a period not unreasonable in length, assist and persuade us in our determination of the constitutional limits. As so regarded, we see no legally significant impact or consequence on the abortion decision or on the physician-patient relationship. We naturally assume, furthermore, that these recordkeeping and record-maintaining provisions will be interpreted and enforced by Missouri's Division of Health in the light of our decision with respect to the Act's other provisions, and that, of course, they will not be utilized in such a way as to accomplish, through the sheer burden of recordkeeping detail, what we have held to be an otherwise unconstitutional restriction. Obviously, the State may not require execution of spousal and parental consent forms that have been invalidated today.GStandard of care. Appellee Danforth in No. 74-1419 appeals from the unanimous decision of the District Page 428 U. S. 82 Court that § (1) of the Act is unconstitutional. That section provides:"No person who performs or induces an abortion shall fail to exercise that degree of professional skill, care and diligence to preserve the life and health of the fetus which such person would be required to exercise in order to preserve the life and health of any fetus intended to be born and not aborted. Any physician or person assisting in the abortion who shall fail to take such measures to encourage or to sustain the life of the child, and the death of the child results, shall be deemed guilty of manslaughter. . . . Further, such physician or other person shall be liable in an action for damages."The District Court held that the first sentence was unconstitutionally overbroad because it failed to exclude from its reach the stage of pregnancy prior to viability. 392 F. Supp. at 1371.The Attorney General argues that the District Court's interpretation is erroneous and unnecessary. He claims that the first sentence of § 6(1) establishes only the general standard of care that applies to the person who performs the abortion, and that the second sentence describes the circumstances when that standard of care applies, namely, when a live child results from the procedure. Thus, the first sentence, it is said, despite its reference to the fetus, has no application until a live birth results.The appellants, of course, agree with the District Court. They take the position that § 6(1) imposes its standard of care upon the person performing the abortion even though the procedure takes place before viability. They argue that the statute, on its face, effectively precludes abortion, and was meant to do just that. Page 428 U. S. 83We see nothing that requires federal court abstention on this issue. Wisconsin v. Constantineau, 400 U. S. 433, 400 U. S. 437-439 (1971); Kusper v. Pontikes, 414 U. S. 51,5 414 U. S. 4-55 (1973). And, like the three judges of the District Court, we are unable to accept the appellee's sophisticated interpretation of the statute. Section 6(1) requires the physician to exercise the prescribed skill, care, and diligence to preserve the life and health of the fetus. It does not specify that such care need be taken only after the stage of viability has been reached. As the provision now reads, it impermissibly requires the physician to preserve the life and health of the fetus, whatever the stage of pregnancy. The fact that the second sentence of § 6(1) refers to a criminal penalty where the physician fails "to take such measures to encourage or to sustain the life of the child, and the death of the child results" (emphasis supplied), simply does not modify the duty imposed by the previous sentence or limit that duty to pregnancies that have reached the stage of viability.The appellees finally argue that, if the first sentence of § 6(1) does not survive constitutional attack, the second sentence does, and, under the Act's severability provision, § B, is severable from the first. The District Court's ruling of unconstitutionality, 392 F. Supp. at 1371, made specific reference to the first sentence, but its conclusion of law and its judgment invalidated all of § 6(1). Id. at 1374; Jurisdictional Statement A-34 in No. 74-1419. Appellee Danforth's motion to alter or amend the judgment, so far as the second sentence of § 6(1) was concerned, was denied by the District Court. Id. at A-39.We conclude, as did the District Court, that § 6(1) must stand or fall as a unit. Its provisions are inextricably bound together. And a physician's or other person's criminal failure to protect a live-born infant surely Page 428 U. S. 84 will be subject to prosecution in Missouri under the State's criminal statutes.The judgment of the District Court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtPlanned Parenthood v. Danforth, 428 U.S. 52 (1976)Planned Parenthood of Central Missouri v. DanforthNo. 74-1151Argued March 23, 1976Decided July 1, 1976*428 U.S. 52SyllabusTwo Missouri-licensed physicians, one of whom performs abortions at hospitals and the other of whom supervises abortions at Planned Parenthood, a not-for-profit corporation, brought suit, along with that organization, for injunctive and declaratory relief challenging the constitutionality of the Missouri abortion statute. The provisions under attack are: § 2(2), defining "viability" as"that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life supportive systems;"§ 3(2), requiring that, before submitting to an abortion during the first 12 weeks of pregnancy, a woman must consent in writing to the procedure and certify that "her consent is informed and freely given, and is not the result of coercion"; § 3(3), requiring, for the same period, the written consent of the spouse of a woman seeking an abortion unless a licensed physician certifies that the abortion is necessary to preserve the mother's life; § 3(4), requiring, for the same period, and with the same proviso, the written consent of a parent or person in loco parentis to the abortion of an unmarried woman under age 18; § 6(1), requiring the physician to exercise professional care to preserve the fetus' life and health, failing which he is deemed guilty of manslaughter and is liable in an action for damages; § 7, declaring an infant who survives an attempted abortion not performed to save the mother's life or health an abandoned ward of the State, and depriving the mother and a consenting father of parental rights; § 9, prohibiting, after the first 12 weeks of pregnancy, the abortion procedure of saline amniocentesis as "deleterious to maternal health"; and §§ 10 and 11, prescribing reporting and recordkeeping Page 428 U. S. 53 requirements for health facilities and physicians performing abortions. The District Court ruled that the two physicians had "obvious standing" to maintain the suit, and that it was therefore unnecessary to determine if Planned Parenthood also had standing. On the merits, the court upheld the foregoing provisions with the exception of § 6(1)'s professional skill requirement, which was held to be "unconstitutionally overbroad" because it failed to exclude the pregnancy stage prior to viability.Held:1. The physician appellants have standing to challenge the foregoing provisions of the Act with the exception of § 7, the constitutionality of which the Court declines to decide. Doe v. Bolton, 410 U. S. 179. P. 428 U. S. 62, and n. 2.2. The definition of viability in § 2(2) does not conflict with the definition in Roe v. Wade, 410 U. S. 113, 410 U. S. 160, 410 U. S. 163, as the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid," and is presumably capable of "meaningful life outside the mother's womb." Section 2(2) maintains the flexibility of the term "viability" recognized in Roe. It is not a proper legislative or judicial function to fix viability, which is essentially for the judgment of the responsible attending physician, at a specific point in the gestation period. Pp. 428 U. S. 63-65.3. The consent provision in § 3(2) is not unconstitutional. The decision to abort is important and often stressful, and the awareness of the decision and its significance may be constitutionally assured by the State to the extent of requiring the woman's prior written consent. Pp. 428 U. S. 65-67.4. The spousal consent provision in § 3(3), which does not comport with the standards enunciated in Roe v. Wade, supra, at 410 U. S. 164-165, is unconstitutional, since the State cannot"'delegate to a spouse a veto power which the [S]tate itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.'"Pp. 428 U. S. 67-72.5. The State may not constitutionally impose a blanket parental consent requirement, such as § 3(4), as a condition for an unmarried minor's abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision, there being no significant state interests, whether to safeguard the family unit and parental authority or other vise, in conditioning an abortion on the consent of a parent with respect to the under-18-year-old pregnant minor. As stressed in Roe, "the abortion decision and its effectuation must Page 428 U. S. 54 be left to the medical judgment of the pregnant woman's attending physician." 410 U.S. at 410 U. S. 164. Pp. 428 U. S. 72-75.6. Through § 9, the State would prohibit the most commonly used abortion procedure in the country and one that is safer, with respect to maternal mortality, than even the continuation of pregnancy until normal childbirth, and would force pregnancy terminations by methods more dangerous to the woman's health than the method outlawed. As so viewed (particularly since another safe technique, prostaglandin, is not yet available) the outright legislative proscription of saline amniocentesis fails as a reasonable protection of maternal health. As an arbitrary regulation designed to prevent the vast majority of abortions after the first 12 weeks, it is plainly unconstitutional. Pp. 428 U. S. 75-79.7. The reporting and recordkeeping requirements, which can be useful to the State's interest in protecting the health of its female citizens and which may be of medical value, are not constitutionally offensive in themselves, particularly in view of reasonable confidentiality and retention provisions. They thus do not interfere with the abortion decision or the physician-patient relationship. It is assumed that the provisions will not be administered in an unduly burdensome way, and that patients will not be required to execute spousal or parental consent forms in accordance with invalid provisions of the Act. Pp. 428 U. S. 79-81.8. The first sentence of § 6(1) impermissibly requires a physician to preserve the fetus' life and health, whatever the stage of pregnancy. The second sentence, which provides for criminal and civil liability where a physician fails "to take such measures to encourage or to sustain the life of the child, and the death of the child results," does not alter the duty imposed by the first sentence or limit that duty to pregnancies that have reached the stage of viability, and since it is inseparably tied to the first provision, the whole section is invalid. Pp. 428 U. S. 81-84.392 F. Supp. 1362, affirmed in part, reversed in part, and remanded.BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined, in all but Parts IV-D and IV-E of which STEVENS, J., joined, and in all but Parts IV-C, IV-D, IV-E, and IV-G of which BURGER, C.J., and WHITE and REHNQUIST, JJ., joined. STEWART, J., filed a concurring opinion, in which POWELL, J., joined, post, p. 428 U. S. 89. WHITE, J., filed an opinion concurring in part and dissenting in part, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 428 U. S. 92. STEVENS, J., Page 428 U. S. 55 filed an opinion concurring in part and dissenting in part, post, p. 428 U. S. 101.

1996_96-552

sess whether the government has impermissibly advanced religion by inculcating religious beliefs. First, the Court has abandoned Ball's presumption that public employees placed on parochial school grounds will inevitably inculcate religion or that their presence constitutes a symbolic union between government and religion. Zobrest v. Catalina Foothills School Dist., 509 U. S. 1, 12-13. No evidence has ever shown that any New York City instructor teaching on parochial school premises attempted to inculcate religion in students. Second, the Court has departed from Ball's rule that all government aid that directly aids the educational function of religious schools is invalid. Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481, 487; Zobrest, supra, at 10, 12. In all relevant respects, the provision of the instructional services here at issue is indistinguishable from the provision of a sign-language interpreter in Zobrest. Zobrest and Witters make clear that, under current law, the Shared Time program in Ball and New York City's Title I program will not, as a matter of law, be deemed to have the effect of advancing religion through indoctrination. Thus, both this Court's precedent and its experience require rejection of the premises upon which Ball relied. Pp. 222-230.(d) New York City's Title I program does not give aid recipients any incentive to modify their religious beliefs or practices in order to obtain program services. Although Ball and Aguilar completely ignored this consideration, other Establishment Clause cases before and since have examined the criteria by which an aid program identifies its beneficiaries to determine whether the criteria themselves have the effect of advancing religion by creating a financial incentive to undertake religious indoctrination. Cf., e. g., Witters, supra, at 488; Zobrest, supra, at 10. Such an incentive is not present where, as here, the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. Under such circumstances, the aid is less likely to have the effect of advancing religion. See Widmar v. Vincent, 454 U. S. 263, 274. New York City's Title I services are available to all children who meet the eligibility requirements, no matter what their religious beliefs or where they go to school. Pp.230-232.(e) The Aguilar Court erred in concluding that New York City's Title I program resulted in an excessive entanglement between church and state. Regardless of whether entanglement is considered in the course of assessing if a program has an impermissible effect of advancing religion, Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 674, or as a factor separate and apart from "effect," Lemon v. Kurtzman, 403 U. S., at 612-613, the considerations used to assess its exces-206Syllabussiveness are similar: The Court looks to the character and purposes of the benefited institutions, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority. Id., at 615. It is simplest to recognize why entanglement is significant and treat it-as the Court did in Walz-as an aspect of the inquiry into a statute's effect. The Aguilar Court's finding of "excessive" entanglement rested on three grounds: (i) the program would require "pervasive monitoring by public authorities" to ensure that Title I employees did not inculcate religion; (ii) the program required "administrative cooperation" between the government and parochial schools; and (iii) the program might increase the dangers of "political divisiveness." 473 U. S., at 413-414. Under the Court's current Establishment Clause understanding, the last two considerations are insufficient to create an "excessive entanglement" because they are present no matter where Title I services are offered, but no court has held that Title I services cannot be offered off campus. E. g., Aguilar, supra. Further, the first consideration has been undermined by Zobrest. Because the Court in Zobrest abandoned the presumption that public employees will inculcate religion simply because they happen to be in a sectarian environment, there is no longer any need to assume that pervasive monitoring of Title I teachers is required. There is no suggestion in the record that the system New York City has in place to monitor Title I employees is insufficient to prevent or to detect inculcation. Moreover, the Court has failed to find excessive entanglement in cases involving far more onerous burdens on religious institutions. See Bowen v. Kendrick, 487 U. S. 589, 615-617. Pp. 232-235.(f) Thus, New York City's Title I program does not run afoul of any of three primary criteria the Court currently uses to evaluate whether government aid has the effect of advancing religion: It does not result in governmental indoctrination, define its recipients by reference to religion, or create an excessive entanglement. Nor can this carefully constrained program reasonably be viewed as an endorsement of religion. pp. 234-235.(g) The stare decisis doctrine does not preclude this Court from recognizing the change in its law and overruling Aguilar and those portions of Ball that are inconsistent with its more recent decisions. E. g., United States v. Gaudin, 515 U. S. 506, 521. Moreover, in light of the Court's conclusion that Aguilar would be decided differently under current Establishment Clause law, adherence to that decision would undoubtedly work a "manifest injustice," such that the law of the case doctrine does not apply. Accord, Davis v. United States, 417 U. S. 333, 342. Pp. 235-236.2072. The significant change in this Court's post-Aguilar Establishment Clause law entitles petitioners to relief under Rule 60(b)(5). The Court's general practice is to apply the rule of law it is announcing to the parties before it, Rodriguez de Quijas v. Shears on/American Express, Inc., 490 U. S. 477, 485, even when it is overruling a case, e. g., Adarand Constructors, Inc. v. Pena, 515 U. S. 200, 237-238. The Court neither acknowledges nor holds that other courts should ever conclude that its more recent cases have, by implication, overruled an earlier precedent. Rather, lower courts should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions. Rodriguez de Quijas, supra, at 484. Respondents' various arguments as to why relief should not be granted in this litigation-that a different analysis is required because the Court is here reviewing for abuse of discretion the District Court's denial of relief; that petitioners' unprecedented use of Rule 60(b)(5) as a vehicle for effecting changes in the law, rather than as a means of recognizing them, will encourage litigants to burden the federal courts with a deluge of Rule 60(b)(5) motions; that petitioners' use of Rule 60(b) in this context will erode the Court's institutional integrity; and that the Court should wait for a "better vehicle" in which to evaluate Aguilar's continuing vitality-are not persuasive. Pp.237-240.101 F.3d 1394, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined, and in which BREYER, J., joined as to Part II, post, p. 240. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined, post, p. 255.Acting Solicitor General Dellinger argued the cause for the Secretary of Education, respondent under this Court's Rule 12.6, in support of petitioners. With him on the briefs were Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Deputy Assistant Attorney General Preston, Paul R. Q. Wolfson, Michael Jay Singer, and HowardPaul A. Crotty argued the cause for petitioners in both cases. With him on the briefs for petitioners in No. 96-553 were Leonard Koerner and Stephen J. McGrath. Kevin T.208Baine and Emmet T. Flood filed a brief for petitioners in No. 96-552.Stanley Geller argued the cause and filed a brief for respondents Felton et al. tJUSTICE O'CONNOR delivered the opinion of the Court.In Aguilar v. Felton, 473 U. S. 402 (1985), this Court held that the Establishment Clause of the First Amendment barred the city of New York from sending public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to a congressionally mandated program. On remand, the District Court for the Eastern District of New York entered a permanent injunction reflecting our ruling. Twelve years later, petitionersthe parties bound by that injunction-seek relief from its operation. Petitioners maintain that Aguilar cannot betBriefs of amici curiae urging reversal were filed for the Becket Fund for Religious Liberty by Kevin J. Hasson; for the Christian Legal Society et al. by Michael W McConnell, Thomas C. Berg, Steven T. McFarland, Kimberlee Wood Colby, and Samuel B. Casey; for the Knights of Columbus by James W Shannon, Jr.; for the National Jewish Commission on Law and Public Mfairs by Nathan Lewin and Dennis Rapps; for Senator Robert F. Bennett by Ronald D. Maines; and for Sarah Peter et al. by Michael Joseph Woodruff and Scott J. Ward.Briefs of amici curiae urging affirmance were filed for the American Jewish Congress et al. by Norman Redlich, Marc D. Stern, Marvin E. Frankel, David J. Strom, Richard T. Foltin, J. Brent Walker, Melissa Rogers, Robert Chanin, John West, Elliot M. Mincberg, and Judith E. Schaeffer; and for Americans United for Separation of Church and State et al. by Steven K. Green, Julie A. Segal, Steven R. Shapiro, and ArthurBriefs of amici curiae were filed for the Council on Religious Freedom et al. by Lee Boothby, Walter E. Carson, and Robert W Nixon; for the Institute for Justice et al. by Mark Snyderman, William H. Mellor III, and Clint Bolick; for the New York County Lawyers Association Committee on Supreme Court of the United States by H. Elliot Wales; for the Pacific Legal Foundation by Sharon L. Browne; and for the United States Catholic Conference by Mark E. Chopko, John A. Liekweg, and Jeffrey Hunter Moon.209squared with our intervening Establishment Clause jurisprudence and ask that we explicitly recognize what our more recent cases already dictate: Aguilar is no longer good law. We agree with petitioners that Aguilar is not consistent with our subsequent Establishment Clause decisions and further conclude that, on the facts presented here, petitioners are entitled under Federal Rule of Civil Procedure 60(b)(5) to relief from the operation of the District Court's prospective injunction.IIn 1965, Congress enacted Title I of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, as modified, 20 U. S. C. § 6301 et seq., to "provid[e] full educational opportunity to every child regardless of economic background." S. Rep. No. 146, 89th Cong., 1st Sess., 5 (1965) (hereinafter Title I). Toward that end, Title I channels federal funds, through the States, to "local educational agencies" (LEA's). 20 U. S. C. §§ 6311, 6312.* The LEA's spend these funds to provide remedial education, guidance, and job counseling to eligible students. §§ 6315(c)(1)(A) (LEA's must use funds to "help participating children meet ... State student performance standards"), 6315(c)(1)(E) (LEA's may use funds to provide "counseling, mentoring, and other pupil services"); see also §§ 6314(b)(1)(B)(i), (iv). An eligible student is one (i) who resides within the attendance boundaries of a public school located in a low-income area, § 6313(a)(2)(B); and (ii) who is failing, or is at risk of failing, the State's student performance standards, § 6315(b)(1)(B). Title I funds must be made available to all eligible children, regardless of whether they attend public schools, § 6312(c)(1)(F), and the services provided to children attending private schools must*Title I has been reenacted, in varying forms, over the years, most recently in the Improving America's Schools Act of 1994, 108 Stat. 3518. We will refer to the current Title I provisions, which do not differ meaningfully for our purposes from the Title I program referred to in our previous decision in this litigation.210be "equitable in comparison to services and other benefits for public school children," § 6321(a)(3); see § 6321(a)(1); 34 CFR §§ 200.10(a), 200.11(b) (1996).An LEA providing services to children enrolled in private schools is subject to a number of constraints that are not imposed when it provides aid to public schools. Title I services may be provided only to those private school students eligible for aid, and cannot be used to provide services on a "school-wide" basis. Compare 34 CFR § 200.12(b) (1996) with 20 U. S. C. § 6314 (allowing "school-wide" programs at public schools). In addition, the LEA must retain complete control over Title I funds; retain title to all materials used to provide Title I services; and provide those services through public employees or other persons independent of the private school and any religious institution. §§ 6321(c)(1), (2). The Title I services themselves must be "secular, neutral, and nonideological," § 6321(a)(2), and must "supplement, and in no case supplant, the level of services" already provided by the private school, 34 CFR § 200.12(a) (1996).Petitioner Board of Education of the City of New York (hereinafter Board), an LEA, first applied for Title I funds in 1966 and has grappled ever since with how to provide Title I services to the private school students within its jurisdiction. Approximately 10% of the total number of students eligible for Title I services are private school students. See App. 38, 620. Recognizing that more than 90% of the private schools within the Board's jurisdiction are sectarian, Felton v. Secretary, United States Dept. of Ed., 739 F.2d 48, 51 (CA2 1984), the Board initially arranged to transport children to public schools for after-school Title I instruction. But this enterprise was largely unsuccessful. Attendance was poor, teachers and children were tired, and parents were concerned for the safety of their children. Ibid. The Board then moved the after-school instruction onto private school211campuses, as Congress had contemplated when it enacted Title 1. See Wheeler v. Barrera, 417 U. S. 402, 422 (1974). After this program also yielded mixed results, the Board implemented the plan we evaluated in Aguilar v. Felton, 473 U. S. 402 (1985).That plan called for the provision of Title I services on private school premises during school hours. Under the plan, only public employees could serve as Title I instructors and counselors. Id., at 406. Assignments to private schools were made on a voluntary basis and without regard to the religious affiliation of the employee or the wishes of the private school. Ibid.; 739 F. 2d, at 53. As the Court of Appeals in Aguilar observed, a large majority of Title I teachers worked in nonpublic schools with religious affiliations different from their own. 473 U. S., at 406. The vast majority of Title I teachers also moved among the private schools, spending fewer than five days a week at the same school. Ibid.Before any public employee could provide Title I instruction at a private school, she would be given a detailed set of written and oral instructions emphasizing the secular purpose of Title I and setting out the rules to be followed to ensure that this purpose was not compromised. Specifically, employees would be told that (i) they were employees of the Board and accountable only to their public school supervisors; (ii) they had exclusive responsibility for selecting students for the Title I program and could teach only those children who met the eligibility criteria for Title I; (iii) their materials and equipment would be used only in the Title I program; (iv) they could not engage in team teaching or other cooperative instructional activities with private school teachers; and (v) they could not introduce any religious matter into their teaching or become involved in any way with the religious activities of the private schools. Ibid. All religious symbols were to be removed from classrooms used212for Title I services. Id., at 407. The rules acknowledged that it might be necessary for Title I teachers to consult with a student's regular classroom teacher to assess the student's particular needs and progress, but admonished instructors to limit those consultations to mutual professional concerns regarding the student's education. 739 F. 2d, at 53. To ensure compliance with these rules, a publicly employed field supervisor was to attempt to make at least one unannounced visit to each teacher's classroom every month. 473 U. S., at 407.In 1978, six federal taxpayers-respondents here-sued the Board in the District Court for the Eastern District of New York. Respondents sought declaratory and injunctive relief, claiming that the Board's Title I program violated the Establishment Clause. The District Court permitted the parents of a number of parochial school students who were receiving Title I services to intervene as codefendants. The District Court granted summary judgment for the Board, but the Court of Appeals for the Second Circuit reversed. While noting that the Board's Title I program had "done so much good and little, if any, detectable harm," 739 F. 2d, at 72, the Court of Appeals nevertheless held that Meek v. Pittenger, 421 U. S. 349 (1975), and Wolman v. Walter, 433 U. S. 229 (1977), compelled it to declare the program unconstitutional. In a 5-to-4 decision, this Court affirmed on the ground that the Board's Title I program necessitated an "excessive entanglement of church and state in the administration of [Title 1] benefits." 473 U. S., at 414. On remand, the District Court permanently enjoined the Board"from using public funds for any plan or program under [Title I] to the extent that it requires, authorizes or permits public school teachers and guidance counselors to provide teaching and counseling services on the premises of sectarian schools within New York City." App. to Pet. for Cert. in No. 96-553, pp. A25-A26.213The Board, like other LEA's across the United States, modified its Title I program so it could continue serving those students who attended private religious schools. Rather than offer Title I instruction to parochial school students at their schools, the Board reverted to its prior practice of providing instruction at public school sites, at leased sites, and in mobile instructional units (essentially vans converted into classrooms) parked near the sectarian school. The Board also offered computer-aided instruction, which could be provided "on premises" because it did not require public employees to be physically present on the premises of a religious school. App. 315.It is not disputed that the additional costs of complying with Aguilar's mandate are significant. Since the 19861987 school year, the Board has spent over $100 million providing computer-aided instruction, leasing sites and mobile instructional units, and transporting students to those sites. App. 333 ($93.2 million spent between 1986-1987 and 1993-1994 school years); id., at 336 (annual additional costs average around $15 million). Under the Secretary of Education's regulations, those costs "incurred as a result of implementing alternative delivery systems to comply with the requirements of Aguilar v. Felton" and not paid for with other state or federal funds are to be deducted from the federal grant before the Title I funds are distributed to any student. 34 CFR § 200.27(c) (1996). These "Aguilar costs" thus reduce the amount of Title I money an LEA has available for remedial education, and LEA's have had to cut back on the number of students who receive Title I benefits. From Title I funds available for New York City children between the 1986-1987 and the 1993-1994 school years, the Board had to deduct $7.9 million "off-the-top" for compliance with Aguilar. App. 333. When Aguilar was handed down, it was estimated that some 20,000 economically disadvantaged children in the city of New York, see 473 U. S., at 431214(O'CONNOR, J., dissenting), and some 183,000 children nationwide, see L. Levy, The Establishment Clause 176 (1986), would experience a decline in Title I services. See also S. Rep. No. 100-222, p. 14 (1987) (estimating that Aguilar costs have "resulted in a decline of about 35 percent in the number of private school children who are served").In October and December of 1995, petitioners-the Board and a new group of parents of parochial school students entitled to Title I services-filed motions in the District Court seeking relief under Federal Rule of Civil Procedure 60(b) from the permanent injunction entered by the District Court on remand from our decision in Aguilar. Petitioners argued that relief was proper under Rule 60(b)(5) and our decision in Rufo v. Inmates of Suffolk County Jail, 502 U. S. 367, 388 (1992), because the "decisional law [had] changed to make legal what the [injunction] was designed to prevent." Specifically, petitioners pointed to the statements of five Justices in Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687 (1994), calling for the overruling of Aguilar. The District Court denied the motion. The District Court recognized that petitioners, "at bottom," sought "a procedurally sound vehicle to get the [propriety of the injunction] back before the Supreme Court," App. to Pet. for Cert. in No. 96-553, p. A12, and concluded that "the Board ha[d] properly proceeded under Rule 60(b) to seek relief from the injunction." Id., at A19. Despite its observations that "the landscape of Establishment Clause decisions has changed," id., at A10, and that "[t]here may be good reason to conclude that Aguilar's demise is imminent," id., at A20, the District Court denied the Rule 60(b) motion on the merits because Aguilar's demise had "not yet occurred." The Court of Appeals for the Second Circuit "affirmed substantially for the reasons stated in" the District Court's opinion. App. to Pet. for Cert. in No. 96-553, p. A5; judgt. order reported at 101 F.3d 1394 (1996). We granted certiorari, 519 U. S. 1086 (1997), and now reverse.215IIThe question we must answer is a simple one: Are petitioners entitled to relief from the District Court's permanent injunction under Rule 60(b)? Rule 60(b)(5), the subsection under which petitioners proceeded below, states:"On motion and upon such terms as are just, the court may relieve a party ... from a final judgment [or] order ... [when] it is no longer equitable that the judgment should have prospective application."In Rufo v. Inmates of Suffolk County Jail, supra, at 384, we held that it is appropriate to grant a Rule 60(b)(5) motion when the party seeking relief from an injunction or consent decree can show "a significant change either in factual conditions or in law." A court may recognize subsequent changes in either statutory or decisional law. See Railway Employees v. Wright, 364 U. S. 642, 652-653 (1961) (consent decree should be vacated under Rule 60(b) in light of amendments to the Railway Labor Act); Rufo, supra, at 393 (vacating denial of Rule 60(b)(5) motion and remanding so District Court could consider whether consent decree should be modified in light of Bell v. Wolfish, 441 U. S. 520 (1979)); Pasadena City Bd. of Ed. v. Spangler, 427 U. S. 424, 437-438 (1976) (injunction should have been vacated in light of Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 (1971)). A court errs when it refuses to modify an injunction or consent decree in light of such changes. See Wright, supra, at 647 ("[T]he court cannot be required to disregard significant changes in law or facts if it is satisfied that what it has been doing has been turned through changed circumstances into an instrument of wrong" (internal quotation marks omitted)).Petitioners point to three changes in the factual and legal landscape that they believe justify their claim for relief under Rule 60(b)(5). They first contend that the exorbitant costs of complying with the District Court's injunction con-216stitute a significant factual development warranting modification of the injunction. See Brief for Petitioner Agostini et al. 38-40. Petitioners also argue that there have been two significant legal developments since Aguilar was decided: a majority of Justices have expressed their views that Aguilar should be reconsidered or overruled, see supra, at 214; and Aguilar has in any event been undermined by subsequent Establishment Clause decisions, including Witters v. Washington Dept. of Servs. for Blind, 474 U. S. 481 (1986), Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993), and Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995).Respondents counter that, because the costs of providing Title I services off site were known at the time Aguilar was decided, and because the relevant case law has not changed, the District Court did not err in denying petitioners' motions. Obviously, if neither the law supporting our original decision in this litigation nor the facts have changed, there would be no need to decide the propriety of a Rule 60(b)(5) motion. Accordingly, we turn to the threshold issue whether the factual or legal landscape has changed since we decided Aguilar.We agree with respondents that petitioners have failed to establish the significant change in factual conditions required by Rufo. Both petitioners and this Court were, at the time Aguilar was decided, aware that additional costs would be incurred if Title I services could not be provided in parochial school classrooms. See App. 66-68 (Defendants' Joint Statement of Material Facts Not In Dispute, filed in 1982, detailing costs of providing off-premises services); Aguilar, 473 U. S., at 430-431 (O'CONNOR, J., dissenting) (observing that costs of complying with Aguilar decision would likely cause a decline in Title I services for 20,000 New York City students). That these predictions of additional costs turned out to be accurate does not constitute a change in factual conditions warranting relief under Rule 60(b)(5). Accord, Rufo,217supra, at 385 ("Ordinarily ... modification should not be granted where a party relies upon events that actually were anticipated at the time [the order was entered]").We also agree with respondents that the statements made by five Justices in Kiryas Joel do not, in themselves, furnish a basis for concluding that our Establishment Clause jurisprudence has changed. In Kiryas Joel, we considered the constitutionality of a New York law that carved out a public school district to coincide with the boundaries of the village of Kiryas Joel, which was an enclave of the Satmar Hasidic sect. Before the new district was created, Satmar children wishing to receive special educational services under the Individuals with Disabilities Education Act (IDEA), 20 U. S. C. § 1400 et seq., could receive those services at public schools located outside the village. Because Satmar parents rarely permitted their children to attend those schools, New York created a new public school district within the boundaries of the village so that Satmar children could stay within the village but receive IDEA services on public school premises from publicly employed instructors. In the course of our opinion, we observed that New York had created the special school district in response to our decision in Aguilar, which had required New York to cease providing IDEA services to Satmar children on the premises of their private religious schools. 512 U. S., at 692. Five Justices joined opinions calling for reconsideration of Aguilar. See 512 U. S., at 718 (O'CONNOR, J., concurring in part and concurring in judgment); id., at 731 (KENNEDY, J., concurring in judgment); id., at 750 (SCALIA, J., joined by REHNQUIST, C. J., and THOMAS, J., dissenting). But the question of Aguilar's propriety was not before us. The views of five Justices that the case should be reconsidered or overruled cannot be said to have effected a change in Establishment Clause law.In light of these conclusions, petitioners' ability to satisfy the prerequisites of Rule 60(b)(5) hinges on whether our later Establishment Clause cases have so undermined218Aguilar that it is no longer good law. We now turn to that inquiry.III AIn order to evaluate whether Aguilar has been eroded by our subsequent Establishment Clause cases, it is necessary to understand the rationale upon which Aguilar, as well as its companion case, School Dist. of Grand Rapids v. Ball, 473 U. S. 373 (1985), rested.In Ball, the Court evaluated two programs implemented by the School District of Grand Rapids, Michigan. The district's Shared Time program, the one most analogous to Title I, provided remedial and "enrichment" classes, at public expense, to students attending nonpublic schools. The classes were taught during regular school hours by publicly employed teachers, using materials purchased with public funds, on the premises of nonpublic schools. The Shared Time courses were in subjects designed to supplement the "core curriculum" of the nonpublic schools. Id., at 375-376. Of the 41 nonpublic schools eligible for the program, 40 were "'pervasively sectarian'" in character-that is, "'the purpos[e] of [those] schools [was] to advance their particular religions.'" Id., at 379.The Court conducted its analysis by applying the threepart test set forth in Lemon v. Kurtzman, 403 U. S. 602 (1971):"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." 473 U. S., at 382-383 (quoting Lemon, supra, at 612-613) (citations and internal quotation marks omitted).The Court acknowledged that the Shared Time program served a purely secular purpose, thereby satisfying the first219part of the so-called Lemon test. 473 U. S., at 383. Nevertheless, it ultimately concluded that the program had the impermissible effect of advancing religion. Id., at 385.The Court found that the program violated the Establishment Clause's prohibition against "government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith" in at least three ways. Ibid. First, drawing upon the analysis in Meek v. Pittenger, 421 U. S. 349 (1975), the Court observed that "the teachers participating in the programs may become involved in intentionally or inadvertently inculcating particular religious tenets or beliefs." 473 U. S., at 385. Meek invalidated a Pennsylvania program in which full-time public employees provided supplemental "auxiliary services"-remedial and accelerated instruction, guidance counseling and testing, and speech and hearing services-to nonpublic school children at their schools. 473 U. S., at 367-373. Although the auxiliary services themselves were secular, they were mostly dispensed on the premises of parochial schools, where "an atmosphere dedicated to the advancement of religious belief [was] constantly maintained." Meek, 421 U. S., at 371. Instruction in that atmosphere was sufficient to create "[t]he potential for impermissible fostering of religion." Id., at 372. Cf. Wolman v. Walter, 433 U. S., at 248 (upholding programs employing public employees to provide remedial instruction and guidance counseling to nonpublic school children at sites away from the nonpublic school).The Court concluded that Grand Rapids' program shared these defects. 473 U. S., at 386. As in Meek, classes were conducted on the premises of religious schools. Accordingly, a majority found a "'substantial risk'" that teachers-even those who were not employed by the private schools-might "subtly (or overtly) conform their instruction to the [pervasively sectarian] environment in which they [taught]." 473 U. S., at 388. The danger of "state-sponsored indoctrination" was only exacerbated by the school district's failure to220monitor the courses for religious content. Id., at 387. Notably, the Court disregarded the lack of evidence of any specific incidents of religious indoctrination as largely irrelevant, reasoning that potential witnesses to any indoctrination-the parochial school students, their parents, or parochial school officials-might be unable to detect or have little incentive to report the incidents. Id., at 388-389.The presence of public teachers on parochial school grounds had a second, related impermissible effect: It created a "graphic symbol of the 'concert or union or dependency' of church and state," id., at 391 (quoting Zorach v. Clauson, 343 U. S. 306, 312 (1952)), especially when perceived by "children in their formative years," 473 U. S., at 390. The Court feared that this perception of a symbolic union between church and state would "conve[y] a message of government endorsement ... of religion" and thereby violate a "core purpose" of the Establishment Clause. Id., at 389.Third, the Court found that the Shared Time program impermissibly financed religious indoctrination by subsidizing "the primary religious mission of the institutions affected." Id., at 385. The Court separated its prior decisions evaluating programs that aided the secular activities of religious institutions into two categories: those in which it concluded that the aid resulted in an effect that was "indirect, remote, or incidental" (and upheld the aid); and those in which it concluded that the aid resulted in "a direct and substantial advancement of the sectarian enterprise" (and invalidated the aid). Id., at 393 (internal quotation marks omitted). In light of Meek and Wolman, Grand Rapids' program fell into the latter category. In those cases, the Court ruled that a state loan of instructional equipment and materials to parochial schools was an impermissible form of "direct aid" because it "advanced the primary, religion-oriented educational function of the sectarian school," 473 U. S., at 395 (citations and internal quotation marks omitted), by providing "in-221kind" aid (e. g., instructional materials) that could be used to teach religion and by freeing up money for religious indoctrination that the school would otherwise have devoted to secular education. Given the holdings in Meek and Wolman, the Shared Time program-which provided teachers as well as instructional equipment and materials-was surely invalid. 473 U. S., at 395. The Ball Court likewise placed no weight on the fact that the program was provided to the student rather than to the school. Nor was the impermissible effect mitigated by the fact that the program only supplemented the courses offered by the parochial schools. Id., at 395397.The New York City Title I program challenged in Aguilar closely resembled the Shared Time program struck down in Ball, but the Court found fault with an aspect of the Title I program not present in Ball: The Board had "adopted a system for monitoring the religious content of publicly funded Title I classes in the religious schools." 473 U. S., at 409. Even though this monitoring system might prevent the Title I program from being used to inculcate religion, the Court concluded, as it had in Lemon and Meek, that the level of monitoring necessary to be "certain" that the program had an exclusively secular effect would "inevitably resul[t] in the excessive entanglement of church and state," thereby running afoul of Lemon's third prong. 473 U. S., at 409; see Lemon, 403 U. S., at 619 (invalidating Rhode Island program on entanglement grounds because "[a] comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that thee] restrictions [against indoctrination] are obeyed"); Meek, supra, at 370 (invalidating Pennsylvania program on entanglement grounds because excessive monitoring would be required for the State to be certain that public school officials do not inculcate religion). In the majority's view, New York City's Title I program suffered from the "same critical elements of entanglement" present in Lemon and Meek: the aid was provided "in a per-222vasively sectarian environment ... in the form of teachers," requiring "ongoing inspection ... to ensure the absence of a religious message." 473 U. S., at 412. Such "pervasive monitoring by public authorities in the sectarian schools infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement." Id., at 413. The Court noted two further forms of entanglement inherent in New York City's Title I program: the "administrative cooperation" required to implement Title I services and the "dangers of political divisiveness" that might grow out of the day-to-day decisions public officials would have to make in order to provide Title I services. Id., at 413-414.Distilled to essentials, the Court's conclusion that the Shared Time program in Ball had the impermissible effect of advancing religion rested on three assumptions: (i) any public employee who works on the premises of a religious school is presumed to inculcate religion in her work; (ii) the presence of public employees on private school premises creates a symbolic union between church and state; and (iii) any and all public aid that directly aids the educational function of religious schools impermissibly finances religious indoctrination, even if the aid reaches such schools as a consequence of private decisionmaking. Additionally, in Aguilar there was a fourth assumption: that New York City's Title I program necessitated an excessive government entanglement with religion because public employees who teach on the premises of religious schools must be closely monitored to ensure that they do not inculcate religion.BOur more recent cases have undermined the assumptions upon which Ball and Aguilar relied. To be sure, the general principles we use to evaluate whether government aid violates the Establishment Clause have not changed since Aguilar was decided. For example, we continue to ask whether the government acted with the purpose of advanc-223ing or inhibiting religion, and the nature of that inquiry has remained largely unchanged. See Witters, 474 U. S., at 485486; Bowen v. Kendrick, 487 U. S. 589, 602-604 (1988) (concluding that Adolescent Family Life Act had a secular purpose); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 248-249 (1990) (concluding that Equal Access Act has a secular purpose); cf. Edwards v. Aguillard, 482 U. S. 578 (1987) (striking down Louisiana law that required creationism to be discussed with evolution in public schools because the law lacked a legitimate secular purpose). Likewise, we continue to explore whether the aid has the "effect" of advancing or inhibiting religion. What has changed since we decided Ball and Aguilar is our understanding of the criteria used to assess whether aid to religion has an impermissible effect.1As we have repeatedly recognized, government inculcation of religious beliefs has the impermissible effect of advancing religion. Our cases subsequent to Aguilar have, however, modified in two significant respects the approach we use to assess indoctrination. First, we have abandoned the presumption erected in Meek and Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion. In Zobrest v. Catalina Foothills School Dist., 509 U. S. 1 (1993), we examined whether the IDEA, 20 U. S. C. § 1400 et seq., was constitutional as applied to a deaf student who sought to bring his state-employed signlanguage interpreter with him to his Roman Catholic high school. We held that this was permissible, expressly disavowing the notion that "the Establishment Clause [laid] down [an] absolute bar to the placing of a public employee in a sectarian school." 509 U. S., at 13. "Such a fiat rule, smacking of antiquated notions of 'taint,' would indeed exalt224form over substance." Ibid. We refused to presume that a publicly employed interpreter would be pressured by the pervasively sectarian surroundings to inculcate religion by "add[ing] to [or] subtract[ing] from" the lectures translated. Ibid. In the absence of evidence to the contrary, we assumed instead that the interpreter would dutifully discharge her responsibilities as a full-time public employee and comply with the ethical guidelines of her profession by accurately translating what was said. Id., at 12. Because the only government aid in Zobrest was the interpreter, who was herself not inculcating any religious messages, no government indoctrination took place and we were able to conclude that "the provision of such assistance [was] not barred by the Establishment Clause." Id, at 13. Zobrest therefore expressly rejected the notion-relied on in Ball and Aguilarthat, solely because of her presence on private school property, a public employee will be presumed to inculcate religion in the students. Zobrest also implicitly repudiated another assumption on which Ball and Aguilar turned: that the presence of a public employee on private school property creates an impermissible "symbolic link" between government and religion.JUSTICE SOUTER contends that Zobrest did not undermine the "presumption of inculcation" erected in Ball and Aguilar, and that our conclusion to the contrary rests on a "mistaken reading" of Zobrest. Post, at 248 (dissenting opinion). In his view, Zobrest held that the Establishment Clause tolerates the presence of public employees in sectarian schools "only ... in ... limited circumstances"-i. e., when the employee "simply translates for one student the material presented to the class for the benefit of all students." Post, at 249. The sign-language interpreter in Zobrest is unlike the remedial instructors in Ball and Aguilar because signing, JUSTICE SOUTER explains, "[cannot] be understood as an opportunity to inject religious content in what [is] supposed to be secular instruction." Post, at 248-249. He is thus able to conclude that Zobrest is distinguishable225from-and therefore perfectly consistent with-Ball and Aguilar.In Zobrest, however, we did not expressly or implicitly rely upon the basis JUSTICE SOUTER now advances for distinguishing Ball and Aguilar. If we had thought that signers had no "opportunity to inject religious content" into their translations, we would have had no reason to consult the record for evidence of inaccurate translations. 509 U. S., at 13. The signer in Zobrest had the same opportunity to inculcate religion in the performance of her duties as do Title I employees, and there is no genuine basis upon which to confine Zobrest's underlying rationale-that public employees will not be presumed to inculcate religion-to signlanguage interpreters. Indeed, even the Zobrest dissenters acknowledged the shift Zobrest effected in our Establishment Clause law when they criticized the majority for "stray[ing] ... from the course set by nearly five decades of Establishment Clause jurisprudence." Id., at 24 (Blackmun, J., dissenting). Thus, it was Zobrest-and not this litigation-that created "fresh law." Post, at 249. Our refusal to limit Zobrest to its facts despite its rationale does not, in our view, amount to a "misreading" of precedent.Second, we have departed from the rule relied on in Ball that all government aid that directly assists the educational function of religious schools is invalid. In Witters v. Washington Dept. of Servs.for Blind, 474 U. S. 481 (1986), we held that the Establishment Clause did not bar a State from issuing a vocational tuition grant to a blind person who wished to use the grant to attend a Christian college and become a pastor, missionary, or youth director. Even though the grant recipient clearly would use the money to obtain religious education, we observed that the tuition grants were "'made available generally without regard to the sectariannonsectarian, or public-nonpublic nature of the institution benefited.''' Id., at 487 (quoting Committee for Public Ed. & Religious Liberty v. Nyquist, 413 U. S. 756, 782-783,226n. 38 (1973)). The grants were disbursed directly to students, who then used the money to pay for tuition at the educational institution of their choice. In our view, this transaction was no different from a State's issuing a paycheck to one of its employees, knowing that the employee would donate part or all of the check to a religious institution. In both situations, any money that ultimately went to religious institutions did so "only as a result of the genuinely independent and private choices of" individuals. 474 U. S., at 487. The same logic applied in Zobrest, where we allowed the State to provide an interpreter, even though she would be a mouthpiece for religious instruction, because the IDEA's neutral eligibility criteria ensured that the interpreter's presence in a sectarian school was a "result of the private decision of individual parents" and "[could not] be attributed to state decisionmaking." 509 U. S., at 10 (emphasis added). Because the private school would not have provided an interpreter on its own, we also concluded that the aid in Zobrest did not indirectly finance religious education by "reliev[ing] [the] sectarian schoo[l] of costs [it] otherwise would have borne in educating [its] students." Id., at 12.Zobrest and Witters make clear that, under current law, the Shared Time program in Ball and New York City's Title I program in Aguilar will not, as a matter of law, be deemed to have the effect of advancing religion through indoctrination. Indeed, each of the premises upon which we relied in Ball to reach a contrary conclusion is no longer valid. First, there is no reason to presume that, simply because she enters a parochial school classroom, a full-time public employee such as a Title I teacher will depart from her assigned duties and instructions and embark on religious indoctrination, any more than there was a reason in Zobrest to think an interpreter would inculcate religion by altering her translation of classroom lectures. Certainly, no evidence has ever shown that any New York City Title I instructor teaching on parochial school premises attempted to inculcate religion in stu-227dents. National Coalition for Public Ed. & Religious Liberty v. Harris, 489 F. Supp. 1248, 1262, 1267 (SDNY 1980); Felton v. Secretary, United States Dept. of Ed., 739 F. 2d, at 53, aff'd sub nom. Aguilar v. Felton, 473 U. S. 402 (1985). Thus, both our precedent and our experience require us to reject respondents' remarkable argument that we must presume Title I instructors to be "uncontrollable and sometimes very unprofessional." Tr. of Oral Arg. 39.As discussed above, Zobrest also repudiates Ball's assumption that the presence of Title I teachers in parochial school classrooms will, without more, create the impression of a "symbolic union" between church and state. JUSTICE SOUTER maintains that Zobrest is not dispositive on this point because Aguilar's implicit conclusion that New York City's Title I program created a "symbolic union" rested on more than the presence of Title I employees on parochial school grounds. Post, at 250. To him, Title I continues to foster a "symbolic union" between the Board and sectarian schools because it mandates "the involvement of public teachers in the instruction provided within sectarian schools," ibid., and "fus[es] public and private faculties," post, at 254. JUSTICE SOUTER does not disavow the notion, uniformly adopted by lower courts, that Title I services may be provided to sectarian school students in off-campus locations, post, at 246-247, even though that notion necessarily presupposes that the danger of "symbolic union" evaporates once the services are provided off campus. Taking this view, the only difference between a constitutional program and an unconstitutional one is the location of the classroom, since the degree of cooperation between Title I instructors and parochial school faculty is the same no matter where the services are provided. We do not see any perceptible (let alone dispositive) difference in the degree of symbolic union between a student receiving remedial instruction in a classroom on his sectarian school's campus and one receiving instruction in a van parked just at the school's curbside. To draw this line based solely on228the location of the public employee is neither "sensible" nor "sound," post, at 247, and the Court in Zobrest rejected it.Nor under current law can we conclude that a program placing full-time public employees on parochial campuses to provide Title I instruction would impermissibly finance religious indoctrination. In all relevant respects, the provision of instructional services under Title I is indistinguishable from the provision of sign-language interpreters under the IDEA. Both programs make aid available only to eligible recipients. That aid is provided to students at whatever school they choose to attend. Although Title I instruction is provided to several students at once, whereas an interpreter provides translation to a single student, this distinction is not constitutionally significant. Moreover, as in Zobrest, Title I services are by law supplemental to the regular curricula. 34 CFR § 200. 12(a) (1996). These services do not, therefore, "reliev[e] sectarian schools of costs they otherwise would have borne in educating their students." 509 U. S., at 12.JUSTICE SOUTER finds our conclusion that the IDEA and Title I programs are similar to be "puzzling," and points to three differences he perceives between the programs: (i) Title I services are distributed by LEA's "directly to the religious schools" instead of to individual students pursuant to a formal application process; (ii) Title I services "necessarily reliev[e] a religious school of 'an expense that it otherwise would have assumed'''; and (iii) Title I provides services to more students than did the programs in Witters and Zobrest. Post, at 251-252. None of these distinctions is meaningful. While it is true that individual students may not directly apply for Title I services, it does not follow from this premise that those services are distributed "directly to the religious schools," post, at 252. In fact, they are not. No Title I funds ever reach the coffers of religious schools, cf. Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646, 657-659 (1980) (involving a program giving "direct cash229reimbursement" to religious schoo ls for performing certain state-mandated tasks), and Title I services may not be provided to religious schools on a schoolwide basis, 34 CFR § 200. 12(b) (1996). Title I funds are instead distributed to a public agency (an LEA) that dispenses services directly to the eligible students within its boundaries, no matter where they choose to attend school. 20 U. S. C. §§ 6311, 6312. Moreover, we fail to see how providing Title I services directly to eligible students results in a greater financing of religious indoctrination simply because those students are not first required to submit a formal application.We are also not persuaded that Title I services supplant the remedial instruction and guidance counseling already provided in New York City's sectarian schools. Although JUSTICE SOUTER maintains that the sectarian schools provide such services and that those schools reduce those services once their students begin to receive Title I instruction, see post, at 244,246,251-252,254, his claims rest on speculation about the impossibility of drawing any line between supplemental and general education, see post, at 246, and not on any evidence in the record that the Board is in fact violating Title I regulations by providing services that supplant those offered in the sectarian schools. See 34 CFR § 200.12(a) (1996). We are unwilling to speculate that all sectarian schools provide remedial instruction and guidance counseling to their students, and are unwilling to presume that the Board would violate Title I regulations by continuing to provide Title I services to students who attend a sectarian school that has curtailed its remedial instruction program in response to Title 1. Nor are we willing to conclude that the constitutionality of an aid program depends on the number of sectarian school students who happen to receive the otherwise neutral aid. Zobrest did not turn on the fact that James Zobrest had, at the time of litigation, been the only child using a publicly funded sign-language interpreter to attend a parochial school. Accord, Mueller v. Allen, 463230u. S. 388, 401 (1983) ("We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law").What is most fatal to the argument that New York City's Title I program directly subsidizes religion is that it applies with equal force when those services are provided off campus, and Aguilar implied that providing the services off campus is entirely consistent with the Establishment Clause. JUSTICE SOUTER resists the impulse to upset this implication, contending that it can be justified on the ground that Title I services are "less likely to supplant some of what would otherwise go on inside [the sectarian schools] and to subsidize what remains" when those services are offered off campus. Post, at 247. But JUSTICE SOUTER does not explain why a sectarian school would not have the same incentive to "make patently significant cutbacks" in its curriculum no matter where Title I services are offered, since the school would ostensibly be excused from having to provide the Title I-type services itself. See ibid. Because the incentive is the same either way, we find no logical basis upon which to conclude that Title I services are an impermissible subsidy of religion when offered on campus, but not when offered off campus. Accordingly, contrary to our conclusion in Aguilar, placing full-time employees on parochial school campuses does not as a matter of law have the impermissible effect of advancing religion through indoctrination.2Although we examined in Witters and Zobrest the criteria by which an aid program identifies its beneficiaries, we did so solely to assess whether any use of that aid to indoctrinate religion could be attributed to the State. A number of our Establishment Clause cases have found that the criteria used for identifying beneficiaries are relevant in a second respect, apart from enabling a court to evaluate whether the program231subsidizes religion. Specifically, the criteria might themselves have the effect of advancing religion by creating a financial incentive to undertake religious indoctrination. Cf. Witters, 474 U. S., at 488 (upholding neutrally available program because it did not "creat[e a] financial incentive for students to undertake sectarian education"); Zobrest, supra, at 10 (upholding neutrally available IDEA aid because it "creates no financial incentive for parents to choose a sectarian school"); accord, post, at 253 (SOUTER, J., dissenting) ("[E]venhandedness is a necessary but not a sufficient condition for an aid program to satisfy constitutional scrutiny"). This incentive is not present, however, where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis. Under such circumstances, the aid is less likely to have the effect of advancing religion. See Widmar v. Vincent, 454 U. S. 263, 274 (1981) ("The provision of benefits to so broad a spectrum of groups is an important index of secular effect").In Ball and Aguilar, the Court gave this consideration no weight. Before and since those decisions, we have sustained programs that provided aid to all eligible children regardless of where they attended school. See, e. g., Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16-18 (1947) (sustaining local ordinance authorizing all parents to deduct from their state tax returns the costs of transporting their children to school on public buses); Board of Ed. of Central School Dist. No.1 v. Allen, 392 U. S. 236, 243-244 (1968) (sustaining New York law loaning secular textbooks to all children); Mueller v. Allen, supra, at 398-399 (sustaining Minnesota statute allowing all parents to deduct actual costs of tuition, textbooks, and transportation from state tax returns); Witters, supra, at 487-488 (sustaining Washington law granting all eligible blind persons vocational assistance); Zobrest, 509 U. S., at 10 (sustaining section of IDEA providing all "disabled" children with necessary aid).232Applying this reasoning to New York City's Title I program, it is clear that Title I services are allocated on the basis of criteria that neither favor nor disfavor religion. 34 CFR § 200.10(b) (1996); see supra, at 209-210. The services are available to all children who meet the Act's eligibility requirements, no matter what their religious beliefs or where they go to school, 20 U. S. C. § 6312(c)(1)(F). The Board's program does not, therefore, give aid recipients any incentive to modify their religious beliefs or practices in order to obtain those services.3We turn now to Aguilar's conclusion that New York City's Title I program resulted in an excessive entanglement between church and state. Whether a government aid program results in such an entanglement has consistently been an aspect of our Establishment Clause analysis. We have considered entanglement both in the course of assessing whether an aid program has an impermissible effect of advancing religion, Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 674 (1970), and as a factor separate and apart from "effect," Lemon v. Kurtzman, 403 U. S., at 612-613. Regardless of how we have characterized the issue, however, the factors we use to assess whether an entanglement is "excessive" are similar to the factors we use to examine "effect." That is, to assess entanglement, we have looked to "the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority." Id., at 615. Similarly, we have assessed a law's "effect" by examining the character of the institutions benefited (e. g., whether the religious institutions were "predominantly religious"), see Meek, 421 U. S., at 363-364; cf. Hunt v. McNair, 413 U. S. 734, 743-744 (1973), and the nature of the aid that the State provided (e. g., whether it was neutral and nonideological), see Everson, supra, at 18; Wolman, 433233u. S., at 244. Indeed, in Lemon itself, the entanglement that the Court found "independently" to necessitate the program's invalidation also was found to have the effect of inhibiting religion. See, e. g., 403 U. S., at 620 ("[WJe cannot ignore here the danger that pervasive modern governmental power will ultimately intrude on religion ... "). Thus, it is simplest to recognize why entanglement is significant and treat it-as we did in Walz-as an aspect of the inquiry into a statute's effect.Not all entanglements, of course, have the effect of advancing or inhibiting religion. Interaction between church and state is inevitable, see 403 U. S., at 614, and we have always tolerated some level of involvement between the two. Entanglement must be "excessive" before it runs afoul of the Establishment Clause. See, e. g., Bowen v. Kendrick, 487 U. S., at 615-617 (no excessive entanglement where government reviews the adolescent counseling program set up by the religious institutions that are grantees, reviews the materials used by such grantees, and monitors the program by periodic visits); Roemer v. Board of Public Works of Md., 426 U. S. 736, 764-765 (1976) (no excessive entanglement where State conducts annual audits to ensure that categorical state grants to religious colleges are not used to teach religion).The pre-Aguilar Title I program does not result in an "excessive" entanglement that advances or inhibits religion. As discussed previously, the Court's finding of "excessive" entanglement in Aguilar rested on three grounds: (i) the program would require "pervasive monitoring by public authorities" to ensure that Title I employees did not inculcate religion; (ii) the program required "administrative cooperation" between the Board and parochial schools; and (iii) the program might increase the dangers of "political divisiveness." 473 U. S., at 413-414. Under our current understanding of the Establishment Clause, the last two considerations are insufficient by themselves to create an "excessive"234entanglement. They are present no matter where Title I services are offered, and no court has held that Title I services cannot be offered off campus. Aguilar, supra (limiting holding to on-premises services); Walker v. San Francisco Unified School Dist., 46 F.3d 1449 (CA91995) (same); Pulido v. Cavazos, 934 F.2d 912, 919-920 (CA8 1991); Committee for Public Ed. & Religious Liberty v. Secretary, United States Dept. of Ed., 942 F. Supp. 842 (EDNY 1996) (same). Further, the assumption underlying the first consideration has been undermined. In Aguilar, the Court presumed that full-time public employees on parochial school grounds would be tempted to inculcate religion, despite the ethical standards they were required to uphold. Because of this risk pervasive monitoring would be required. But after Zobrest we no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment. Since we have abandoned the assumption that properly instructed public employees will fail to discharge their duties faithfully, we must also discard the assumption that pervasive monitoring of Title I teachers is required. There is no suggestion in the record before us that unannounced monthly visits of public supervisors are insufficient to prevent or to detect inculcation of religion by public employees. Moreover, we have not found excessive entanglement in cases in which States imposed far more onerous burdens on religious institutions than the monitoring system at issue here. See Bowen, supra, at 615-617.To summarize, New York City's Title I program does not run afoul of any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: It does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement. We therefore hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruc-235tion is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards such as those present here. The same considerations that justify this holding require us to conclude that this carefully constrained program also cannot reasonably be viewed as an endorsement of religion. Accord, Witters, 474 U. S., at 488-489 ("[T]he mere circumstance that [an aid recipient] has chosen to use neutrally available state aid to help pay for [a] religious education [does not] confer any message of state endorsement of religion"); Bowen, supra, at 613-614 (finding no "'symbolic link'" when Congress made federal funds neutrally available for adolescent counseling). Accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids' Shared Time program, are no longer good law.CThe doctrine of stare decisis does not preclude us from recognizing the change in our law and overruling Aguilar and those portions of Ball inconsistent with our more recent decisions. As we have often noted, "[s]tare decisis is not an inexorable command," Payne v. Tennessee, 501 U. S. 808, 828 (1991), but instead reflects a policy judgment that "in most matters it is more important that the applicable rule of law be settled than that it be settled right," Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting). That policy is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions. Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 63 (1996); Payne, supra, at 828; St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 94 (1936) (Stone and Cardozo, JJ., concurring in result) ("The doctrine of stare decisis ... has only a limited application in the field of constitutional law"). Thus, we have held in several cases that stare decisis does not prevent us from overruling a previous decision where236there has been a significant change in, or subsequent development of, our constitutional law. United States v. Gaudin, 515 U. S. 506, 521 (1995) (stare decisis may yield where a prior decision's "underpinnings [have been] eroded, by subsequent decisions of this Court"); Alabama v. Smith, 490 U. S. 794, 803 (1989) (noting that a "later development of ... constitutionallaw" is a basis for overruling a decision); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 857 (1992) (observing that a decision is properly overruled where "development of constitutional law since the case was decided has implicitly or explicitly left [it] behind as a mere survivor of obsolete constitutional thinking"). As discussed above, our Establishment Clause jurisprudence has changed significantly since we decided Ball and Aguilar, so our decision to overturn those cases rests on far more than "a present doctrinal disposition to come out differently from the Court of [1985]." Casey, supra, at 864. We therefore overrule Ball and Aguilar to the extent those decisions are inconsistent with our current understanding of the Establishment Clause.Nor does the "law of the case" doctrine place any additional constraints on our ability to overturn Aguilar. Under this doctrine, a court should not reopen issues decided in earlier stages of the same litigation. Messenger v. Anderson, 225 U. S. 436, 444 (1912). The doctrine does not apply if the court is "convinced that [its prior decision] is clearly erroneous and would work a manifest injustice." Arizona v. California, 460 U. S. 605, 618, n. 8 (1983). In light of our conclusion that Aguilar would be decided differently under our current Establishment Clause law, we think adherence to that decision would undoubtedly work a "manifest injustice," such that the law of the case doctrine does not apply. Accord, Davis v. United States, 417 U. S. 333, 342 (1974) (Court of Appeals erred in adhering to law of the case doctrine despite intervening Supreme Court precedent).237IVWe therefore conclude that our Establishment Clause law has "significant[ly] change[d]" since we decided Aguilar. See Rufo, 502 U. S., at 384. We are only left to decide whether this change in law entitles petitioners to relief under Rule 60(b)(5). We conclude that it does. Our general practice is to apply the rule of law we announce in a case to the parties before us. Rodriguez de Quijas v. Shearson/ American Express, Inc., 490 U. S. 477, 485 (1989) ("The general rule of long standing is that the law announced in the Court's decision controls the case at bar"). We adhere to this practice even when we overrule a case. In Adarand Constructors, Inc. v. Pena, 515 U. S. 200 (1995), for example, the District Court and Court of Appeals rejected the argument that racial classifications in federal programs should be evaluated under strict scrutiny, relying upon our decision in Metro Broadcasting, Inc. v. FCC, 497 U. S. 547 (1990). When we granted certiorari and overruled Metro Broadcasting, we did not hesitate to vacate the judgments of the lower courts. In doing so, we necessarily concluded that those courts relied on a legal principle that had not withstood the test of time. 515 U. S., at 237-238. See also Hubbard v. United States, 514 U. S. 695, 715 (1995) (overruling decision relied upon by Court of Appeals and reversing the lower court's judgment that relied upon the overruled case).We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. We reaffirm that "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas, supra, at 484. Adherence to this teaching by the District Court and Court of Appeals in this litigation does not insulate a legal principle on which they relied from our review to deter-238mine its continued vitality. The trial court acted within its discretion in entertaining the motion with supporting allegations, but it was also correct to recognize that the motion had to be denied unless and until this Court reinterpreted the binding precedent.Respondents and JUSTICE GINSBURG urge us to adopt a different analysis because we are reviewing the District Court's denial of petitioners' Rule 60(b)(5) motion for an abuse of discretion. See Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257, 263, n. 7 (1978). It is true that the trial court has discretion, but the exercise of discretion cannot be permitted to stand if we find it rests upon a legal principle that can no longer be sustained. See Cooter & Gell v. Hartmarx Corp., 496 U. S. 384,405 (1990). The standard of review we employ in this litigation does not therefore require us to depart from our general practice. See Adarand, supra; Hubbard, supra.Respondents nevertheless contend that we should not grant Rule 60(b)(5) relief here, in spite of its propriety in other contexts. They contend that petitioners have used Rule 60(b)(5) in an unprecedented way-not as a means of recognizing changes in the law, but as a vehicle for effecting them. If we were to sanction this use of Rule 60(b)(5), respondents argue, we would encourage litigants to burden the federal courts with a deluge of Rule 60(b)(5) motions premised on nothing more than the claim that various judges or Justices have stated that the law has changed. See also post, at 260 (GINSBURG, J., dissenting) (contending that granting Rule 60(b)(5) relief in this litigation will encourage "invitations to reconsider old cases based on 'speculat[ions] on chances from changes in [the Court's membership]"). We think their fears are overstated. As we noted above, a judge's stated belief that a case should be overruled does not make it so. See supra, at 217.Most importantly, our decision today is intimately tied to the context in which it arose. This litigation involves a239party's request under Rule 60(b)(5) to vacate a continuing injunction entered some years ago in light of a bona fide, significant change in subsequent law. The clause of Rule 60(b)(5) that petitioners invoke applies by its terms only to "judgment[s] hav[ing] prospective application." Intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6), the only remaining avenue for relief on this basis from judgments lacking any prospective component. See 12 J. Moore et aI., Moore's Federal Practice § 60.48[5][b], p. 60-181 (3d ed. 1997) (collecting cases). Our decision will have no effect outside the context of ordinary civil litigation where the propriety of continuing prospective relief is at issue. Cf. Teague v. Lane, 489 U. S. 288 (1989) (applying a more stringent standard for recognizing changes in the law and "new rules" in light of the "interests of comity" present in federal habeas corpus proceedings). Given that Rule 60(b)(5) specifically contemplates the grant of relief in the circumstances presented here, it can hardly be said that we have somehow warped the Rule into a means of "allowing an 'anytime' rehearing." See post, at 259 (GINSBURG, J., dissenting).Respondents further contend that "[p]etitioners' [p]roposed [u]se of Rule 60(b) [w]ill [e]rode the [i]nstitutional [i]ntegrity of the Court." Brief for Respondents 26. Respondents do not explain how a proper application of Rule 60(b)(5) undermines our legitimacy. Instead, respondents focus on the harm occasioned if we were to overrule Aguilar. But as discussed above, we do no violence to the doctrine of stare decisis when we recognize bona fide changes in our decisional law. And in those circumstances, we do no violence to the legitimacy we derive from reliance on that doctrine. Casey, 505 U. S., at 865-866.As a final matter, we see no reason to wait for a "better vehicle" in which to evaluate the impact of subsequent cases on Aguilar's continued vitality. To evaluate the Rule24060(b)(5) motion properly before us today in no way undermines "integrity in the interpretation of procedural rules" or signals any departure from "the responsive, non-agendasetting character of this Court." Post, at 260 (GINSBURG, J., dissenting). Indeed, under these circumstances, it would be particularly inequitable for us to bide our time waiting for another case to arise while the city of New York labors under a continuing injunction forcing it to spend millions of dollars on mobile instructional units and leased sites when it could instead be spending that money to give economically disadvantaged children a better chance at success in life by means of a program that is perfectly consistent with the Establishment Clause.For these reasons, we reverse the judgment of the Court of Appeals and remand the cases to the District Court with instructions to vacate its September 26, 1985, order.It is so ordered

OCTOBER TERM, 1996SyllabusAGOSTINI ET AL. v. FELTON ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITNo. 96-552. Argued April 15, 1997-Decided June 23,1997*In Aguilar v. Felton, 473 U. S. 402, 413, this Court held that New York City's program that sent public school teachers into parochial schools to provide remedial education to disadvantaged children pursuant to Title I of the Elementary and Secondary Education Act of 1965 necessitated an excessive entanglement of church and state and violated the First Amendment's Establishment Clause. On remand, the District Court entered a permanent injunction reflecting that ruling. Some 10 years later, petitioners-the parties bound by the injunction-filed motions in the same court seeking relief from the injunction's operation under Federal Rule of Civil Procedure 60(b)(5). They emphasized the significant costs of complying with Aguilar and the assertions of five Justices in Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, that Aguilar should be reconsidered, and argued that relief was proper under Rule 60(b)(5) and Rufo v. Inmates of Suffolk County Jail, 502 U. S. 367, 388, because Aguilar cannot be squared with this Court's intervening Establishment Clause jurisprudence and is no longer good law. The District Court denied the motion on the merits, declaring that Aguilar's demise has "not yet occurred." The Second Circuit agreed and affirmed.Held:1. A federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees under a program containing safeguards such as those present in New York City's Title I program. Accordingly, Aguilar, as well as that portion of its companion case, School Dist. of Grand Rapids v. Ball, 473 U. S. 373, addressing a "Shared Time" program, are no longer good law. Pp. 215-236.(a) Under Rufo, supra, at 384, Rule 60(b)(5)-which states that, "upon such terms as are just, the court may relieve a party ... from a final judgment ... [when] it is no longer equitable that the judgment*Together with No. 96-553, Chancellor, Board of Education of the City of New York, et al. v. Felton et al., also on certiorari to the same court.204Syllabusshould have prospective application"-authorizes relief from an injunction if the moving party shows a significant change either in factual conditions or in law. Since the exorbitant costs of complying with the injunction were known at the time Aguilar was decided, see, e. g., 473 U. S., at 430-431 (O'CONNOR, J., dissenting), they do not constitute a change in factual conditions sufficient to warrant relief, accord, Rufo, supra, at 385. Also unavailing is the fact that five Justices in Kiryas Joel expressed the view that Aguilar should be reconsidered or overruled. Because the question of Aguilar's propriety was not before the Court in that case, those Justices' views cannot be said to have effected a change in Establishment Clause law. Thus, petitioners' ability to satisfy Rule 60(b)(5)'s prerequisites hinges on whether the Court's later Establishment Clause cases have so undermined Aguilar that it is no longer good law. Pp. 215-218.(b) To answer that question, it is necessary to understand the rationale upon which Aguilar and Ball rested. One of the programs evaluated in Ball was the Grand Rapids, Michigan, Shared Time program, which is analogous to New York City's Title I program. Applying the three-part Lemon v. Kurtzman, 403 U. S. 602, 612-613, test, the Ball Court acknowledged that the Shared Time program satisfied the test's first element in that it served a purely secular purpose, 473 U. S., at 383, but ultimately concluded that it had the impermissible effect of advancing religion, in violation of the test's second element, id., at 385. That conclusion rested on three assumptions: (i) any public employee who works on a religious school's premises is presumed to inculcate religion in her work, see id., at 385-389; (ii) the presence of public employees on private school premises creates an impermissible symbolic union between church and state, see id., at 389, 391; and (iii) any public aid that directly aids the educational function of religious schools impermissibly finances religious indoctrination, even if the aid reaches such schools as a consequence of private decisionmaking, see id., at 385, 393, 395-397. Additionally, Aguilar set forth a fourth assumption: that New York City's Title I program necessitates an excessive government entanglement with religion, in violation of the Lemon test's third element, because public employees who teach on religious school premises must be closely monitored to ensure that they do not inculcate religion. See 473 U. S., at 409, 412-414. Pp. 218-222.(c) The Court's more recent cases have undermined the assumptions upon which Ball and Aguilar relied. Contrary to Aguilar's conclusion, placing full-time government employees on parochial school campuses does not as a matter of law have the impermissible effect of advancing religion through indoctrination. Subsequent cases have modified in two significant respects the approach the Court uses to as-205Full Text of Opinion

1963_58

MR. JUSTICE CLARK delivered the opinion of the Court.This direct appeal from a final judgment of a three-judge District Court is but another episode in the long and continued struggle between the railroads and competing barge lines. In 1960, the Interstate Commerce Commission issued an order permitting a departure from the long- and short-haul provision of § 4 of the Interstate Page 376 U. S. 377 Commerce Act. [Footnote 1] 310 I.C.C. 437. This order permitted the New York Central and connecting carriers to inaugurate a rate structure on its Belt Line west of Kankakee, Illinois, to eastern destinations under which lower rates were charged for some long hauls than for shorter ones on the same route. The District Court approved this action by dismissing a complaint to set aside the order. 209 F. Supp. 744. We noted probable jurisdiction, 374 U.S. 823, and now reverse the judgment with directions that the District Court vacate the order of the Commission and remand for further consideration in light of this opinion.IThe New York Central operates the Kankakee Belt Line, which extends from South Bend, Indiana, through Kankakee, Illinois, and westward to Zearing, Illinois. That portion of the line west of Kankakee to Moronts, Illinois, roughly parallels the Illinois River in Northern Illinois, and is used in large part to transport corn toward eastern markets. In the mid-1930's, the Illinois River was developed for barge movement, and almost all of the corn Page 376 U. S. 378 traffic was drawn away from the rails to the river, corn being moved to Chicago by barge and then shipped to the East by rail. [Footnote 2] Prior to 1957, barge rates from ports along the Illinois River to Chicago averaged 4.625� per hundred pounds of corn. [Footnote 3] From Chicago to eastern destinations, rail rates were 49� per hundred pounds of corn and 49.5� for corn products, so that the total shipping cost from ports on the Illinois River to the East was 53.625� for corn and 54.125� for corn products. At the same time, rates for shipping corn via all-rail routes from origins on the Belt Line to eastern markets averaged 72� for corn and 72.5� for corn products, computed either as through rates or as a combination of a 23� rail rate to Chicago and the 49� or 49.5� rate from Chicago to the East.The railroads chose to meet the barge competition by establishing a new rate structure on December 15, 1956, with a proportional rate [Footnote 4] for rail shipments of corn to Kankakee which was competitive with the barge rate to Chicago. The railroads continued the regular rates for transportation of corn to Kankakee from points on the Belt Line, but allowed credit on reshipment from Kankakee to eastern points which resulted in a net rate of 6� [Footnote 5] for transportation from Belt Line points to Kankakee. The 6� proportional rate applies only if the corn is milled in transit, and only if it is reshipped to the East. Because of the credit, the resulting rate system favors eastbound shipments of corn from Belt Line points west of Kankakee over similar shipments via the same route starting Page 376 U. S. 379 at Kankakee. For this reason, the rate structure violates the long- and short-haul prohibition of § 4 of the Act, and the railroads had to apply for authority for fourth section departures. In 1957, a temporary fourth section order was entered authorizing the filing and immediate application of the rates, but not approving them, "all such rates being subject to complaint, investigation and correction if in conflict with any provision of the Interstate Commerce Act." The application was set down for hearing, but the Commission did not exercise its power to enter into a general investigation of the lawfulness of the rates under § 15(1) or § 15(7) of the Act, 41 Stat. 484-487, as amended, 49 U.S.C. §§ 15(1), 15(7). Nor did the appellants file a formal complaint under § 13 of the Act, 24 Stat. 383-384, as amended, 49 U.S.C. § 13, assailing the lawfulness of the rates.Subsequently, the Examiner denied § 4 relief because Belt Line rates to Kankakee were less than the out-of-pocket cost, and were "lower than necessary to meet the barge competition." [Footnote 6] The Commission reversed, holding that the proportional rate from origins along the Kankakee Belt Line to Kankakee "has no independent existence, but is an integral part of the rate which applies on the through transportation from Belt origin" [Footnote 7] to the East. The Commission found that the through combination rate was compensatory, and that, since the barges attracted the corn grown adjacent to the river and the rails attracted that along the Belt Line, the rates were not lower than necessary to meet the barge rates, and did not constitute destructive competition.The Chicago Board of Trade, which had intervened in the proceeding, charged that the rates violated § 3(1) of Page 376 U. S. 380 the Act [Footnote 8] (as well as § 4) because they discriminated against Chicago grain merchants and processors. The Commission refused to pass upon the question as not being relevant to a § 4 proceeding. Nor did the Commission consider Mechling's contention that the rates violated § 3(4) of the Act [Footnote 9] because they discriminated between connecting carriers. Other objections that the rates violated § 1(5) of the Act [Footnote 10] as not being just and Page 376 U. S. 381 reasonable were likewise refused consideration. While the Commission found that the railroad's action was not a competitively destructive practice, it made no direct finding that the action did not violate the National Transportation Policy, [Footnote 11] despite the appellants' insistence that it did.The District Court approved the Commission's action in all respects and dismissed the complaint, holding"that the order in question was within the statutory power of the Commission, that it is supported by findings and conclusions based on substantial evidence, and that no prejudicial error occurred in the hearings before the Examiner and Commission."209 F. Supp. at 749.We have concluded that there is error in the holding in two respects: (1) The Commission should have passed upon the questions raised and evidence offered that the rates violated other sections of the Act; (2) the Commission Page 376 U. S. 382 erred in failing to specifically consider and pass upon the question of whether the rates violated the National Transportation Policy.IIContentions were made and proof was offered by the Chicago Board of Trade of discriminatory violations of § 3(1) of the Act, especially discrimination against whole corn by the "milling in transit" limitation. Under the conclusion of the Examiner that the fourth section application should be denied, it was not necessary to pass upon the § 3(1) contention. However, when the Commission took the opposite view on the § 4 application, the claim under § 3(1) was ripe for decision. The Commission found that,"[a]lthough the New York Central intends to remove the 'milling in transit' limitation, these issues do not directly deal with the fourth section principles here involved, but are properly matters which may be raised in investigation or complaint proceedings."310 I.C.C. 437, 451.Likewise, appellant Mechling claims discrimination against the barge lines at Chicago in violation of § 3(4) of the Act, which prohibits carriers from practicing rate discrimination between connecting lines, including common carriers by water. The gist of the grievance is the assertion that the New York Central rate structure results in lower reshipping rates for ex-rail corn eastbound from Chicago than for ex-barge corn. Mechling urges that the Commission should have allowed full inquiry into this contention and should have determined whether § 3(4) is being violated.In defense of its position, the Commission says that it does not grant relief under § 4 when the rates proposed result in violations of other sections of the Act. However, the Commission does not believe that this policy requires it to consider and decide, in a fourth section proceeding, Page 376 U. S. 383 every allegation of rate unlawfulness, no matter how remote. Continuing, the Commission argues that, since the attack on the rates was on a proportional factor, the 6�, and not on the through charge, these other claims of unlawfulness were beyond the immediate § 4 issues. We cannot agree that the mechanism of the rate under attack permits of such easy dismemberment. Indeed, there is a definite tie-in that prevents the compartmentalization of the elements going into the combination. The 6� is not a separate charge, but is the result of the railroad's combination rate. The shipper is charged 23� for the transportation of corn from points west to Kankakee, with "milling in transit," and is allowed a 17� credit on the rate from Kankakee to the East, either direct or via Chicago, on the transportation of the resulting corn products. This combination rate has a real impact on the freight originating along the Belt Line. Further, the rate is not "remote," as is shown by the undisputed statement of counsel at argument that the barges have lost 53% of their carriage since it was made effective in 1957.If the proceeding is splintered, contestants will be obliged to await the conclusion of § 4 proceedings before raising claims of violations under other sections of the Act. Not only would this be poor administration, but it would result in manifest inequities, and allow potential windfalls to some carriers.Moreover, such splintering appears to be contrary to the consistent policy of the Commission in fourth section proceedings. Over 50 years ago, the Commission said:"[T]he proviso authorizing this Commission to permit exceptions to the general prohibition of . . . [Section 4] is not a grant of arbitrary or absolute power, but its exercise must be limited and conditioned upon the presence in special cases of conditions and circumstances which would make such exceptions Page 376 U. S. 384 legal and proper, and in no wise antagonistic to other provisions of the act."Railroad Comm'n of Nevada v. Southern Pac. Co., 21 I.C.C. 329, 341 (1911). In at least 10 subsequent cases, [Footnote 12] as well as in its annual reports, the Commission has reemphasized the same principle. See 34 I.C.C.Ann.Rep. 47. Furthermore, the application of all of the Act's prohibitions against discrimination "as a whole" furthers the purpose of the Congress in its enactment. The Senate Committee on Interstate Commerce once stated it this way:"The provisions of the . . . [Interstate Commerce Act] are based upon the theory that the paramount evil chargeable against the operation of the transportation system of the United States, as now conducted, is unjust discrimination between persons, places, commodities, or particular descriptions of traffic. The underlying purpose and aim of the measure is the prevention of these discriminations, both by declaring them unlawful and adding to the remedies now available for securing redress and enforcing punishment. . . ."S.Rep.No. 46, 49th Cong., 1st Sess., 215-216 (1886). Page 376 U. S. 385 In accordance with this policy, this Court declared in New York v. United States, 331 U. S. 284, 331 U. S. 296 (1947), that "[t]he principal evil at which the Interstate Commerce Act . . . was aimed was discrimination in its various manifestations." In the Intermountain Rate Cases, 234 U. S. 476, 234 U. S. 485-486 (1914), the Court held that the Commission's power to relieve carriers from the requirements of § 4 depends upon"the facts established and the judgment of that body, in the exercise of a sound legal discretion, as to whether the request should be granted compatibly with a due consideration of the private and public interest concerned, and in view of the preference and discrimination clauses of the 2d and 3d sections."(Emphasis added.) The fact that the long- and short-haul prohibition of § 4 is particularized does not require any different interpretation. The Congress might well have concluded that such a practice was so pernicious that it required specific condemnation. [Footnote 13]Finally, by hearing and determining, in a single proceeding, all charges of discrimination bearing upon the formal § 4 application, the Commission would further the legislative purpose as declared by the National Transportation Policy. It directed that the Interstate Commerce Act "shall be administered and enforced with a view to carrying out" its purpose"to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices. . . ."54 Stat. 899, 49 U.S.C., note preceding § 1. Page 376 U. S. 386We do not say that such a rule of consolidation is an absolute. Many of these applications are filed each year, and the Commission summarily disposes of the majority of them. Certainly, where issues are not raised or brought to adversary position, there is no need to consolidate. Likewise, where consolidation would inordinately delay the § 4 proceeding, good administration would require its denial. However, in the instant case, we see no practical reason why the merits of the several contentions should not have been reached. [Footnote 14] To require the parties to begin anew, and thus spawn several cases, all of which might have been easily disposed of in the § 4 proceeding, needlessly subjects appellants' claims to the rigors of circumlocution so deadly to effective administrative and judicial processes. This proceeding is now in its seventh year -- during all of which period, the rate under attack has been in force -- and, still, basic questions as to the validity of the rate have not been considered by the Commission.IIIThe Examiner entered a finding, which is uncontested, that the proportional rate here under attack did not cover the out-of-pocket costs of the railroad. In spite of this finding, the Commission gave little, if any, consideration to any resulting violation of the National Transportation Policy. There is no economic analysis, no expert testimony, no supporting data. Instead, the Commission found that the through rate, which it Page 376 U. S. 387 thought compensatory, rather than the Belt Line proportional rate, was controlling. Viewed in this manner, the Commission determined that the rate was not a destructively competitive practice. However, it supported this conclusion only with passing references to the first-year experience under the rate of two Illinois elevators and 10 Illinois River ports. One of the elevators had experienced no adverse effects from the rate while the other had lost some grain grown closer to the Belt Line. The 10 ports experienced about a 23% larger corn shipment to Chicago, but the proportion of this increase to the whole grain movement is not shown. Nevertheless, the Commission concluded from this"that, while corn grown adjacent to the Belt was attracted to the rails, that grown adjacent to the river remained with the barges. Thus, it is evident that the proposed rates are not lower than necessary to meet the barge competition."310 I.C.C. 437, 452. In contradiction to this, we have the undenied statement of counsel at argument, quoting statistics of the Chicago Board of Trade, that much corn traffic has been diverted from barge to rail since the rate went into effect, so that the barge lines carried 53% less corn to Chicago in 1963 than they did in 1957. The finding that the through rate was compensatory does not answer the question of whether the direct effect of the below-cost proportional rate on the Belt Line traffic is wholly at odds with the National Transportation Policy. Prior to the establishment of the rate, the barge lines enjoyed practically all of the traffic. However, the combination rate appears to have diverted appreciable traffic from the barge lines without any apparent profit to the railroad. Indeed, the Commission has not indicated whether any additional traffic resulted on the rail haul between Chicago or Kankakee and New York. We, therefore, do not believe it sufficient for the Commission to approve such a rate simply on a finding that the through Page 376 U. S. 388 rate is reasonably compensatory, and no lower than necessary to meet competition. In light of the facts present here, the claim of violation of the National Transportation Policy, raised and insisted upon by the appellants at all stages of the proceedings, must be specifically considered.The judgment is, therefore, reversed, and the cases are remanded to the District Court with directions to vacate the order of the Commission and remand for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtA. L. Mechling Barge Lines, Inc. v. United States, 376 U.S. 375 (1964)A. L. Mechling Barge Lines, Inc. v. United StatesNo. 58Argued February 18, 1964Decided March 23, 1964*376 U.S. 375SyllabusThe Interstate Commerce Commission (ICC), after a hearing, issued an order permitting appellee railroad to depart from the long- and short-haul restrictions of § 4 of the Interstate Commerce Act. The ICC refused to pass on: the contention of the appellant Board of Trade that the proposed rail rates discriminated against Chicago grain merchants and processors (§ 3(1) of the Act); appellant barge line's contention that the rates discriminated between connecting carriers (§ 3(4) of the Act); and the claim that the rates were not just and reasonable (§ 1(5) of the Act). Nor did the ICC make a direct finding, despite appellants' insistence, that the railroad's new rate structure did not violate the National Transportation Policy. The District Court approved the action of the Commission.Held: Appellants' claims that the proposed rail rates violated other sections of the Act and were contrary to the National Transportation Policy were ripe for adjudication, and should have been considered in the § 4 proceeding; the ICC's failure to consolidate the issues and reach the merits of the several contentions could only result in manifest inequities, potential windfalls to some carriers, and contravention of the National Transportation Policy. Pp. 376 U. S. 376-388.209 F. Supp. 744 reversed and remanded. Page 376 U. S. 376

2002_02-306

Seth P. Waxman argued the cause for petitioners. With him on the briefs were Dennis G. Lyons, Howard N. Cayne, Mary Gabrielle Sprague, Brian C. Duffy, Christopher R. Lipsett, Russell J. Bruemmer, Paul R. Q. Wolfson, AlanMatthew D. Roberts argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Clement, Mark B. Stern, Julie L. Williams, Daniel P. Stipano,Brian M. Clark argued the cause for respondents. With him on the brief was Dennis G. Pantazis. *JUSTICE STEVENS delivered the opinion of the Court.The question in this case is whether an action filed in a state court to recover damages from a national bank for allegedly charging excessive interest in violation of both "the common law usury doctrine" and an Alabama usury statute* Drew S. Days III, Beth S. Brinkmann, and Seth M. Galanter filed a brief for the American Bankers Association et al. as amici curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the State of Arizona et al. by Terry Goddard, Attorney General of Arizona, Mary O'Grady, Solicitor General, Joseph A. Kanefield, Assistant Attorney General, and Dan Schweitzer, and by the Attorneys General for their respective States as follows: Gregg Renkes of Alaska, Richard Blumenthal of Connecticut, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, J. Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Jeremiah W (Jay) Nixon of Missouri, Peter Heed of New Hampshire, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Jim Petro of Ohio, Hardy Myers of Oregon, Henry McMaster of South Carolina, Larry Long of South Dakota, Greg Abbott of Texas, and Christine O. Gregoire of Washington; for AARP et al. by Deborah M. Zuckerman, Stacy J. Canan, and Michael R. Schuster; and for Consumer Attorneys of California by James C. Sturdevant.4may be removed to a federal court because it actually arises under federal law. We hold that it may.IRespondents are 26 individual taxpayers who made pledges of their anticipated tax refunds to secure short-term loans obtained from petitioner Beneficial National Bank, a national bank chartered under the National Bank Act. Respondents brought suit in an Alabama court against the bank and the two other petitioners that arranged the loans, seeking compensatory and punitive damages on the theory, among others, that the bank's interest rates were usurious. App. 18-30. Their complaint did not refer to any federal law.Petitioners removed the case to the United States District Court for the Middle District of Alabama. In their notice of removal they asserted that the National Bank Act, Rev. Stat. § 5197, as amended, 12 U. S. C. § 85,1 is the exclusive provi-1 Title 12 U. S. C. § 85 provides:"Rate of interest on loans, discounts and purchases"Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be the greater, and no more, except that where by the laws of any State a different rate is limited for banks organized under state laws, the rate so limited shall be allowed for associations organized or existing in any such State under title 62 of the Revised Statutes. When no rate is fixed by the laws of the State, or Territory, or District, the bank may take, receive, reserve, or charge a rate not exceeding 7 per centum, or 1 per centum in excess of the discount rate on ninety day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be the greater, and such interest may be taken in advance, reckoning the days for which the note, bill, or other evidence of debt has to run. The maximum amount of interest or discount to be charged at a branch of an association located outside of the States of the United States and the District of Columbia5sion governing the rate of interest that a national bank may lawfully charge, that the rates charged to respondents complied with that provision, that Rev. Stat. § 5198, 12 U. S. C. § 86, provides the exclusive remedies available against a national bank charging excessive interest,2 and that the removal statute, 28 U. S. C. § 1441, therefore applied. App. 31-35. The District Court denied respondents' motion to remand the case to state court but certified the question whether it had jurisdiction to proceed with the case to the Court of Appeals pursuant to 28 U. S. C. § 1292(b).A divided panel of the Eleventh Circuit reversed. Anderson v. H&R Block, Inc., 287 F.3d 1038 (2002). The majority held that under our "well-pleaded complaint" rule, removal is generally not permitted unless the complaint expressly alleges a federal claim and that the narrow exception from that rule known as the "complete preemption doctrine" did not apply because it could "find no clear congressional intent to permit removal under §§ 85 and 86." Id., at 1048. Because this holding conflicted with an Eighth Circuit decision, Kris-shall be at the rate allowed by the laws of the country, territory, dependency, province, dominion, insular possession, or other political subdivision where the branch is located. And the purchase, discount, or sale of a bona fide bill of exchange, payable at another place than the place of such purchase, discount, or sale, at not more than the current rate of exchange for sight drafts in addition to the interest, shall not be considered as taking or receiving a greater rate of interest."2 Section 86 provides:"U surious interest; penalty for taking; limitations"The taking, receiving, reserving, or charging a rate of interest greater than is allowed by section 85 of this title, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same: Provided, That such action is commenced within two years from the time the usurious transaction occurred."6pin v. May Dept. Stores Co., 218 F.3d 919 (2000), we granted certiorari. 537 U. S. 1169 (2003).IIA civil action filed in a state court may be removed to federal court if the claim is one "arising under" federal law. § 1441(b). To determine whether the claim arises under federal law, we examine the "well pleaded" allegations of the complaint and ignore potential defenses: "[A] suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action and asserts that the defense is invalidated by some provision of the Constitution of the United States." Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152 (1908); see Taylor v. Anderson, 234 U. S. 74 (1914). Thus, a defense that relies on the preclusive effect of a prior federal judgment, Rivet v. Regions Bank of La., 522 U. S. 470 (1998), or the pre-emptive effect of a federal statute, Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 (1983), will not provide a basis for removal. As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.Congress has, however, created certain exceptions to that rule. For example, the Price-Anderson Act contains an unusual pre-emption provision, 42 U. S. C. § 2014(hh), that not only gives federal courts jurisdiction over tort actions arising out of nuclear accidents but also expressly provides for removal of such actions brought in state court even when they assert only state-law claims. See El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473, 484-485 (1999).We have also construed § 301 of the Labor Management Relations Act, 1947 (LMRA), 29 U. S. C. § 185, as not only pre-empting state law but also authorizing removal of ac-7tions that sought relief only under state law. Avco Corp. v. Machinists, 390 U. S. 557 (1968). We later explained that holding as resting on the unusually "powerful" pre-emptive force of § 301:"The Court of Appeals held, 376 F. 2d, at 340, and we affirmed, 390 U. S., at 560, that the petitioner's action 'arose under' § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law. The necessary ground of decision was that the pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action 'for violation of contracts between an employer and a labor organization.' Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301. Avco stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily 'arises under' federal law." Franchise Tax Bd., 463 U. S., at 23-24 (footnote omitted).Similarly, in Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58 (1987), we considered whether the "complete preemption" approach adopted in Avco also supported the removal of state common-law causes of action asserting improper processing of benefit claims under a plan regulated by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U. S. C. § 1001 et seq. For two reasons, we held that removal was proper even though the complaint purported to raise only state-law claims. First, the statutory text in § 502(a), 29 U. S. C. § 1132, not only provided an express federal remedy for the plaintiffs' claims, but also in its jurisdiction subsection, § 502(f), used language similar to the statutory language construed in Avco, thereby indicating8that the two statutes should be construed in the same way. 481 U. S., at 65. Second, the legislative history of ERISA unambiguously described an intent to treat such actions "as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations Act of 1947." Id., at 65-66 (internal quotation marks and emphasis omitted).Thus, a state claim may be removed to federal court in only two circumstances-when Congress expressly so provides, such as in the Price-Anderson Act, supra, at 6, or when a federal statute wholly displaces the state-law cause of action through complete pre-emption.3 When the federal statute completely pre-empts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. This claim is then removable under 28 U. S. C. § 1441(b), which authorizes any claim that "arises under" federallaw to be removed to federal court. In the two categories of cases 4 where this Court has found complete preemption-certain causes of action under the LMRA and ERISA-the federal statutes at issue provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action. See 29 U. S. C. § 1132 (setting forth procedures and remedies for civil claims under ERISA); § 185 (describing procedures and remedies for suits under the LMRA).3 Of course, a state claim can also be removed through the use of the supplemental jurisdiction statute, 28 U. S. C. § 1367(a), provided that another claim in the complaint is removable.4 This Court has also held that federal courts have subject-matter jurisdiction to hear posessory land claims under state law brought by Indian tribes because of the uniquely federal "nature and source of the possessory rights of Indian tribes." Oneida Indian Nation of N Y. v. County of Oneida, 414 U. S. 661, 667 (1974). Because that case turned on the special historical relationship between Indian tribes and the Federal Government, it does not assist the present analysis.9IIICount IV of respondents' complaint sought relief for "usury violations" and claimed that petitioners "charged ... excessive interest in violation of the common law usury doctrine" and violated "Alabama Code § 8-8-1, et seq. by charging excessive interest." App. 28. Respondents' complaint thus expressly charged petitioners with usury. Metropolitan Life, Avco, and Franchise Tax Board provide the framework for answering the dispositive question in this case:Does the National Bank Act provide the exclusive cause of action for usury claims against national banks? If so, then the cause of action necessarily arises under federal law and the case is removable. If not, then the complaint does not arise under federal law and is not removable.Sections 85 and 86 serve distinct purposes. The former sets forth the substantive limits on the rates of interest that national banks may charge. The latter sets forth the elements of a usury claim against a national bank, provides for a 2-year statute of limitations for such a claim, and prescribes the remedies available to borrowers who are charged higher rates and the procedures governing such a claim. If, as petitioners asserted in their notice of removal, the interest that the bank charged to respondents did not violate § 85 limits, the statute unquestionably pre-empts any commonlaw or Alabama statutory rule that would treat those rates as usurious. The section would therefore provide the petitioners with a complete federal defense. Such a federal defense, however, would not justify removal. Caterpillar Inc. v. Williams, 482 U. S. 386, 393 (1987). Only if Congress intended § 86 to provide the exclusive cause of action for usury claims against national banks would the statute be comparable to the provisions that we construed in the Avco and Metropolitan Life cases.55 Because the proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive rather than on whether Congress intended that the cause of action be removable, the fact that these sections10In a series of cases decided shortly after the Act was passed, we endorsed that approach. In Farmers' and Mechanics' Nat. Bank v. Dearing, 91 U. S. 29, 32-33 (1875), we rejected the borrower's attempt to have an entire debt forfeited, as authorized by New York law, stating that the various provisions of §§ 85 and 86 "form a system of regulations ... [a]ll the parts [of which] are in harmony with each other and cover the entire subject," so that "the State law would have no bearing whatever upon the case." We also observed that "[i]n any view that can be taken of [§ 86], the power to supplement it by State legislation is conferred neither expressly nor by implication." Id., at 35. In Evans v. National Bank of Savannah, 251 U. S. 108, 114 (1919), we stated that "federal law ... completely defines what constitutes the taking of usury by a national bank, referring to the state law only to determine the maximum permitted rate." See also Barnet v. National Bank, 98 U. S. 555, 558 (1879) (The "statutes of Ohio and Indiana upon the subject of usury ... cannot affect the case" because the Act "creates a new right" that is "exclusive"); Haseltine v. Central Bank of Springfield, 183 U. S. 132, 134 (1901) ("[T]he definition of usury and the penalties affixed thereto must be determined by the National Banking Act and not by the law of the State").In addition to this Court's longstanding and consistent construction of the National Bank Act as providing an exclusive federal cause of action for usury against national banks, this Court has also recognized the special nature of federally chartered banks. Uniform rules limiting the liability of national banks and prescribing exclusive remedies for their overcharges are an integral part of a banking system that needed protection from "possible unfriendly State legislation." Tiffany v. National Bank of Mo., 18 Wall. 409, 412of the National Bank Act were passed in 1864, 11 years prior to the passage of the statute authorizing removal, is irrelevant, contrary to respondents' assertions.11(1874). The same federal interest that protected national banks from the state taxation that Chief Justice Marshall characterized as the "power to destroy," McCulloch v. Maryland, 4 Wheat. 316, 431 (1819), supports the established interpretation of §§ 85 and 86 that gives those provisions the requisite pre-emptive force to provide removal jurisdiction. In actions against national banks for usury, these provisions supersede both the substantive and the remedial provisions of state usury laws and create a federal remedy for overcharges that is exclusive, even when a state complainant, as here, relies entirely on state law. Because §§ 85 and 86 provide the exclusive cause of action for such claims, there is, in short, no such thing as a state-law claim of usury against a national bank. Even though the complaint makes no mention of federal law, it unquestionably and unambiguously claims that petitioners violated usury laws. This cause of action against national banks only arises under federal law and could, therefore, be removed under § 1441.The judgment of the Court of Appeals is reversed.It is so ordered

CASES ADJUDGEDIN THESUPREME COURT OF THE UNITED STATESATOCTOBER TERM, 2002SyllabusBENEFICIAL NATIONAL BANK ET AL. v. ANDERSON ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 02-306. Argued April 30, 2003-Decided June 2, 2003Respondents, who secured loans from petitioner national bank, filed a state-court suit against the bank and two other petitioners, seeking damages on the theory, among others, that the bank's interest rates violated "the common law usury doctrine" and an Alabama usury statute. The complaint did not refer to any federal law. Petitioners removed the case to Federal District Court, asserting that the National Bank Act governs the interest rate that a national bank may charge, see 12 U. S. C. § 85, that the rates charged to respondents complied with § 85, that § 86 provides the exclusive remedies available against a national bank charging excessive interest, and that respondents' action was therefore one "arising under" federal law that could be removed under 28 U. S. C. § 1441. The District Court denied respondents' motion to remand the case to state court, but certified the question whether it had jurisdiction to the Eleventh Circuit. In reversing, the latter court held that under the ''well-pleaded complaint" rule, removal is not permitted unless the complaint expressly alleges a federal claim, and that the narrow exception known as the complete pre-emption doctrine did not apply because there was no evidence of clear congressional intent to permit removal under §§85 and 86.Held: Respondents' cause of action arose only under federal law and could, therefore, be removed under § 1441. Pp. 6-11.2Syllabus(a) As a general rule, absent diversity jurisdiction, a case is not removable if the complaint does not affirmatively allege a federal claim. Potential defenses, including a federal statute's pre-emptive effect, Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, do not provide a basis for removal. One exception to the general rule occurs when a federal statute completely pre-empts a cause of action. Where this Court has found such preemption, the federal statutes at issue-the Labor Management Relations Act, 1947, see Avco Corp. v. Machinists, 390 U. S. 557, and the Employee Retirement Income Security Act of 1974, see Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58-provided the exclusive cause of action for the claim asserted and also set forth procedures and remedies governing that cause of action. Pp. 6-8.(b) Because respondents' complaint expressly charged petitioners with usury, Metropolitan Life, Avco, and Franchise Tax Bd. provide the framework for answering the question whether the National Bank Act provides the exclusive cause of action for usury claims against national banks. Section 85 sets substantive limits on the interest rates that national banks may charge, while § 86 prescribes the remedies available to borrowers who are charged higher rates and the procedures governing such claims. If the interest charged here did not violate § 85 limits, the statute pre-empts any common-law or Alabama statutory rule that would treat those rates as usurious and would, thus, provide a federal defense. That defense would not justify removal. Only if Congress intended § 86 to provide the exclusive cause of action for usury claims against national banks would the statute be comparable to the provisions construed in Avco and Metropolitan Life. This Court has long construed the National Bank Act as providing the exclusive federal cause of action for usury against national banks. See, e. g., Farmers' and Mechanics' Nat. Bank v. Dearing, 91 U. S. 29. The Court has also recognized the special nature of federally chartered banks. Uniform rules limiting their liability and prescribing exclusive remedies for their overcharges are an integral part of a banking system that needed protection from possible unfriendly state legislation. The same federal interest supports the established interpretation of § § 85 and 86 that gives those provisions the requisite pre-emptive force to provide removal jurisdiction. Pp.9-11.287 F.3d 1038, reversed.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p. 11.3Full Text of Opinion

1966_352

MR. JUSTICE CLARK delivered the opinion of the Court.The ultimate issue in these cases is whether the holders of the Class B stock of the Missouri Pacific Railroad Company (MoPac) are entitled to vote separately, as a class, on the proposed plan of consolidation of MoPac and Texas and Pacific Railway Company (T & P) into the newly formed Texas and Missouri Pacific Railroad Company (T & M). An application has been filed with the Interstate Commerce Commission requesting permission to effect a plan of consolidation under § § 5(2) and 5(11) of the Interstate Commerce Act, as amended, 54 Stat. 905, 908 (1940), 49 U.S.C. § 5(2) and 5(11). MoPac's Board of Directors has announced that its Class B shareholders are not entitled to vote on the plan separately and apart from its Class A shareholders, and that it intends to submit the plan only to the collective vote of the Class A and Class B shareholders.Three separate declaratory judgment actions were filed by different Class B shareholders seeking a declaration Page 386 U. S. 164 that the plan requires the separate approval of the holders of the Class B shares by majority vote. Upon a limited consolidation of the cases, the District Court held that MoPac's Articles of Association prohibited the consolidation unless class voting was observed, and that § 5(11) [Footnote 1] of the Interstate Commerce Act, by adopting state law, required the separate approval of each class of shareholders. 233 F. Supp. 747. The Court of Appeals reversed on the ground that, despite Missouri law, the "plenary character of § 5(11) . . . with its consequent preemptive nature" compelled a contrary result. 359 F.2d 106, at 119. We granted certiorari. 385 U.S. 814. We have concluded that Missouri law, as provided by § 5(11), is controlling on the point and that the judgment must, therefore, be reversed.IBackground of the Parties and the LitigationMoPac, a Missouri corporation, is an interstate common carrier railroad. It had been in reorganization proceedings under 77 of the Bankruptcy Act, as amended, Page 386 U. S. 165 11 U.S.C. § 205, until January 1, 1955. [Footnote 2] After those proceedings terminated, the corporation's preferred and common stock was replaced by two classes of $100 stated capital no par voting shares: Class A, which is preferentially entitled to noncumulative dividends not to exceed $5 per share annually, and Class B, which is entitled to all the earnings and the equity in excess of the Class A preferences. MoPac's Articles of Association, Art. VII, § D(3), provide that class voting shall not be required save as to four types of corporate change, none of which shall be effected without the separate consent of the record holders of a majority of the Class A and the Class B shares. The four specified changes are: (1) the issuance of additional shares; (2) the creation or issuance of any MoPac obligation or security convertible into or exchangeable for MoPac shares; (3) an alteration or change in "the preferences, qualifications, limitations, restrictions and special or relative rights of the Class A Stock or of the Class B Stock"; and, finally, (4) the amendment or elimination of any of the foregoing requirements.MoPac has 1,849,576 shares of Class A stock and 39,731 shares of Class B stock outstanding. T & P was incorporated by an Act of Congress in 1871, and is also an interstate railroad of which MoPac owns 82.86% of the outstanding shares of stock. Mississippi River Fuel Corporation (Mississippi) is a Delaware corporation and owns a majority (57.95%) of the Class A shares of the stock of MoPac. Alleghany Corporation (Alleghany) is a Maryland corporation and owns a majority (51%) of the Class B stock of MoPac, subject to a voting trust. T & M is a Delaware corporation organized for the Page 386 U. S. 166 purpose of being the consolidated company upon the merger of MoPac and T & P.The agreement and plan of consolidation were approved by the Board of Directors of MoPac and T & P in December of 1963. The plan provided for an exchange of each MoPac share (without regard to class) for four shares of the new corporation and for an exchange of the T & P stock (other than that owned by MoPac) on a basis of one share of T & P for 4.8 shares of the new company. In January of 1964, the three companies filed a joint application with the Interstate Commerce Commission for an order under § 5(2) of the Act authorizing the consolidation and the issuance of securities by T & M under § 20a. In this application, MoPac advised that it would submit the proposed plan to its stockholders, for approval, by May of 1964 on the basis of a collective, rather than class, vote.There are a total of six individual petitioners, each of whom owns only a nominal number of Class B shares, and Alleghany, which owns, as aforesaid, a majority of those shares. The respondents are MoPac, T & P, Mississippi, and some of their directors or officers, only one of whom owns any Class B stock of MoPac. The first of the three suits which this cause involves was filed prior to the submission of the plan to the Commission; the second and third subsequent thereto. Each of the suits attacks the plans of consolidation, alleging, among other things, that the Class B stock has a much greater value than that of the Class A, and that the exchange is unfair; that the collective voting plan would violate the Articles of Association, the law of Missouri (and, therefore, § 5(11) of the Act), and would result in irreparable injury to the Class B shareholders. Each complaint prays for a declaration that the plan of consolidation requires the separate vote of each class of stock. At trial the parties agreed that the court should Page 386 U. S. 167 first pass upon the voting rights question. The District Court held that class voting was required and certified the issue to the Court of Appeals which permitted an interlocutory appeal under 28 U.S.C. § 1292(b). Further proceedings in the District Court were stayed.As we have indicated, the Court of Appeals held that, even though MoPac's Articles of Association required a class vote on consolidation and Missouri law, therefore, demanded such a vote, it nevertheless was"impressed with the significance of the national transportation policy and its emphasis on railroad consolidation, with the stated exclusive and plenary character of § 5(11), and with its consequent preemptive nature."359 F.2d at 119. The Court felt that, by virtue of the federal statute, it was compelled to conclude that it should apply the general standard as to voting rights, i.e., the majority of all voting shares, rather than honor the exception, i.e., class voting, as provided under Missouri law.IIConclusionWe believe the Court of Appeals erred in so construing § 5(11) of the Act. That section specifically provides that voluntary consolidations of railroads must have the assent"of a majority [vote of all shares], unless a different vote is required under applicable State law, in which case the number so required shall assent, of the votes of the holders of the shares entitled to vote. . . ."As the Court of Appeals held, this section "bows in the direction of state law." 359 F.2d at 114. Both the District Court and the Court of Appeals decided that Mo.Rev.Stat. c. 351 was "the applicable state law." As both courts found, § 351.055(3) authorizes the issuance of classes of shares of stock and § 351.270 provides that, where"the articles of incorporation require the vote or concurrence of the holders of a greater portion of the shares, or of any Page 386 U. S. 168 class or series thereof, than required by this chapter with respect to such action, the provisions of the articles of incorporation shall control this section."But the Court of Appeals concluded that, since § 351.425 [Footnote 3] permitted the plan to be approved by the vote of at least two-thirds of all the outstanding shares, § 5(11) required that it control, rather than § 351.270. We think not. In using the language "required under applicable State law," § 5(11) embraced all state law, as the Court of Appeals held. This included the exception of § 351.270 as to those corporations whose articles of incorporation required class voting. The national transportation policy and the provisions of § 5(11), rather than permitting the result the Court of Appeals reached, require that "the articles of incorporation shall control. . . ." It follows that, if a consolidation comes within the requirements of § D(3) of the articles of association, the approval by the separate vote of each class of stock is required. The District Court found that the plan of consolidation did come within § D(3). It is clear that the Court of Appeals did not disturb this finding, although it is not precisely clear what the court found on the question. At one point, it appears to say that "the articles seem to require" separate class voting, while it later assumes that they do so. Subsequently, the opinion notes that the court is "not persuaded . . . that MoPac's Articles call for a class vote on a consolidation. . . ." 359 F.2d at 119. In any event, we agree with the trial court that the articles do require a separate class vote on the plan. We believe that the provision that the company"shall not . . . (c) alter or change the preferences, qualifications, limitations, Page 386 U. S. 169 restrictions and special or relative rights of the Class A Stock or of the Class B Stock"would clearly include the plan of consolidation here. MoPac, by consolidating the two railroads that it already controls, will change its Class A stock from voting shares preferentially entitled to noncumulative dividends of not to exceed $5 per share annually to shares that participate equally in all of the earnings of the company. The Class B stock which now enjoys all of the earnings and the equity in excess of the present Class A preferences would lose those special features. As the Court of Appeals found, the effectuation of the plan would "result in the present Class B holdings being engulfed by the larger number of Class A holdings." 359 F.2d at 110. It is a propos to note here that, while the equity of each Class A share remains limited to $100, the value of the equity of the Class B shares is approximately $6,500 per share. The plan proposes to exchange four shares of stock of T & M for one share of MoPac Class B, which, under such values, is like exchanging four rabbits for one horse. Moreover, the final proviso of § D(3) requires a separate class vote where any amendment or elimination of any of the provisions of the section itself is proposed. Under the plan, this section would be entirely eliminated on the basis of a collective vote, rather than a separate class one. But MoPac argues that this would not be "company action." We cannot agree. The boards of directors of MoPac and T & P, which it controls, drew up the plan, and now request its approval by the Interstate Commerce Commission. This certainly is "company action" within the terms of the Articles. [Footnote 4] Indeed, Page 386 U. S. 170 this point is so clear that we see no occasion for remanding the issue to the Court of Appeals for its consideration of the point, even though it be assumed that its opinion does not decide it. Effective judicial administration requires that we dispose of the matter here.We do not, of course, reach the merits of the proposed plan, which is the concern of the Commission in the first instance. Any reference to the effect of the plan is not to be construed as in any way passing upon its merits. With reference to voting rights, we hold only that, in a consolidation as proposed here, Missouri law must be applied, and that § 351.270 of that law requires the application of the Articles of Association of MoPac, which in turn, require the assent of the majority of the shareholders on a separate class-vote basis.The judgment is therefore reversed, and the cause remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtLevin v. Mississippi River Fuel Corp., 386 U.S. 162 (1967)Levin v. Mississippi River Fuel Corp.No. 352Argued January 19, 1967Decided February 27, 1967*386 U.S. 162SyllabusThe capital stock of the Missouri Pacific Railroad Company (MoPac), a Missouri corporation, consists of two classes, A and B. Class A, with 1,849,576 shares outstanding, is preferentially entitled to noncumulative dividends not to exceed $5 a share annually, and its equity is limited to $100 a share. Class B, with 39,731 shares outstanding, is entitled to the earnings and equity in excess of the Class A preferences, and its equity is currently valued at about $6,500 a share. MoPac's corporate charter provides that each share of each class is entitled to one vote, with the proviso that a separate vote of each class is required on any proposal affecting the preferences or relative rights of either class. Section 5(11) of the Interstate Commerce Act requires for ICC approval of a voluntary railroad merger the assent of the majority of the shares entitled to vote "unless a different vote is required under applicable State law." Missouri law applicable to mergers provides for approval by at least a two-thirds vote of all outstanding shares (Mo.Rev.Stat. § 351.425). Another section of state law provides for class voting where a corporation's charter so requires (§ 351.270). A plan to consolidate MoPac and a subsidiary railroad was approved by their boards of directors and submitted for ICC approval, including provision for an exchange of each MoPac share, without regard to class, for four shares of the new corporation. The proposed plan was to be passed on by the stockholders voting collectively, rather than by class. Charging that the proposed exchange was unfair in view of the far greater value of the Class B stock than that of the Class A stock, appellants, Class B stockholders, brought this suit for declaratory relief. The District Court upheld appellants' contention that the collective voting plan would violate MoPac's corporate charter and both state and federal law. The Court of Appeals reversed on the ground that, despite Missouri law, the "plenary character of § 5(11) . . . , with its consequent preemptive nature" compelled a contrary result.Held: In a consolidation such as that proposed here, Missouri law Page 386 U. S. 163 applies, and § 351.270 of that law requires application of the corporate charter provision, which, in turn, requires a majority assent of the stockholders on a separate class-vote basis. Pp. 386 U. S. 167-170.359 F.2d 106, reversed and remanded.

1986_85-1513

JUSTICE BRENNAN delivered the opinion of the Court.tThe question for decision is whether Louisiana's "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction" Act (Creationism Act), La.Rev.Stat.Ann. §§ 17:286.1-17:286.7 (West 1982), is facially invalid Page 482 U. S. 581 as violative of the Establishment Clause of the First Amendment.IThe Creationism Act forbids the teaching of the theory of evolution in public schools unless accompanied by instruction in "creation science." § 17:286.4A. No school is required to teach evolution or creation science. If either is taught, however, the other must also be taught. Ibid. The theories of evolution and creation science are statutorily defined as "the scientific evidences for [creation or evolution] and inferences from those scientific evidences." §§ 17.286.3(2) and (3).Appellees, who include parents of children attending Louisiana public schools, Louisiana teachers, and religious leaders, challenged the constitutionality of the Act in District Court, seeking an injunction and declaratory relief. [Footnote 1] Appellants, Louisiana officials charged with implementing the Act, defended on the ground that the purpose of the Act is to protect a legitimate secular interest, namely, academic freedom. [Footnote 2] Appellees attacked the Act as facially invalid because Page 482 U. S. 582 it violated the Establishment Clause and made a motion for summary judgment. The District Court granted the motion. Aguillard v. Treen, 634 F. Supp. 426 (ED La.1985). The court held that there can be no valid secular reason for prohibiting the teaching of evolution, a theory historically opposed by some religious denominations. The court further concluded that"the teaching of 'creation-science' and 'creationism,' as contemplated by the statute, involves teaching 'tailored to the principles' of a particular religious sect or group of sects."Id. at 427 (citing Epperson v. Arkansas, 393 U. S. 97, 393 U. S. 106 (1968)). The District Court therefore held that the Creationism Act violated the Establishment Clause either because it prohibited the teaching of evolution or because it required the teaching of creation science with the purpose of advancing a particular religious doctrine.The Court of Appeals affirmed. 765 F.2d 1251 (CA5 1985). The court observed that the statute's avowed purpose of protecting academic freedom was inconsistent with requiring, upon risk of sanction, the teaching of creation science whenever evolution is taught. Id. at 1257. The court found that the Louisiana Legislature's actual intent was "to discredit evolution by counterbalancing its teaching at every turn with the teaching of creationism, a religious belief." Ibid. Because the Creationism Act was thus a law furthering a particular religious belief, the Court of Appeals held that the Act violated the Establishment Clause. A suggestion for rehearing en banc was denied over a dissent. 778 F.2d 225 (CA5 1985). We noted probable jurisdiction, 476 U.S. 1103 (1986), and now affirm.IIThe Establishment Clause forbids the enactment of any law "respecting an establishment of religion." [Footnote 3] The Court Page 482 U. S. 583 has applied a three-pronged test to determine whether legislation comports with the Establishment Clause. First, the legislature must have adopted the law with a secular purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion. Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 612-613 (1971). [Footnote 4] State action violates the Establishment Clause if it fails to satisfy any of these prongs.In this case, the Court must determine whether the Establishment Clause was violated in the special context of the public elementary and secondary school system. States and local school boards are generally afforded considerable discretion in operating public schools. See Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 478 U. S. 683 (1986); id. at 478 U. S. 687 (BRENNAN, J., concurring in judgment); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 393 U. S. 507 (1969)."At the same time . . . we have necessarily recognized that the discretion of the States and local school boards in matters of education must be exercised in a manner that comports with the transcendent imperatives of the First Amendment."Board of Education, Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853, 457 U. S. 864 (1982).The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and Page 482 U. S. 584 secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable, and their attendance is involuntary. See, e.g., Grand Rapids School Dist. v. Ball, 473 U. S. 373, 473 U. S. 383 (1985); Wallace v. Jaffree, 472 U. S. 38, 472 U. S. 60, n. 51 (1985); Meek v. Pittenger, 421 U. S. 349, 421 U. S. 369 (1975); Abington School Dist. v. Schempp, 374 U. S. 203, 374 U. S. 252-253 (1963) (BRENNAN, J., concurring). The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure. [Footnote 5] See Bethel School Dist. No. 403 v. Fraser, supra, at 478 U. S. 683; Wallace v. Jaffree, supra, at 472 U. S. 81 (O'CONNOR, J., concurring in judgment). Furthermore,"[t]he public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools. . . ."Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203, 333 U. S. 231 (1948) (opinion of Frankfurter, J.).Consequently, the Court has been required often to invalidate statutes which advance religion in public elementary and secondary schools. See, e.g., Grand Rapids School Dist. v. Ball, supra, (school district's use of religious school teachers in public schools); Wallace v. Jaffree, supra, (Alabama statute authorizing moment of silence for school prayer); Stone v. Page 482 U. S. 585 Graham, 449 U. S. 39 (1980) (posting copy of Ten Commandments on public classroom wall); Epperson v. Arkansas, 393 U. S. 97 (1968) (statute forbidding teaching of evolution); Abington School Dist. v. Schempp, supra, (daily reading of Bible); Engel v. Vitale, 370 U. S. 421, 370 U. S. 430 (1962) (recitation of "denominationally neutral" prayer).Therefore, in employing the three-pronged Lemon test, we must do so mindful of the particular concerns that arise in the context of public elementary and secondary schools. We now turn to the evaluation of the Act under the Lemon test.IIILemon's first prong focuses on the purpose that animated adoption of the Act. "The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion." Lynch v. Donnelly, 465 U. S. 668, 465 U. S. 690 (1984) (O'CONNOR, J., concurring). A governmental intention to promote religion is clear when the State enacts a law to serve a religious purpose. This intention may be evidenced by promotion of religion in general, see Wallace v. Jaffree, supra, at 472 U. S. 52-53 (Establishment Clause protects individual freedom of conscience "to select any religious faith or none at all"), or by advancement of a particular religious belief, e.g., Stone v. Graham, supra, at 449 U. S. 41 (invalidating requirement to post Ten Commandments, which are "undeniably a sacred text in the Jewish and Christian faiths") (footnote omitted); Epperson v. Arkansas, supra, at 393 U. S. 106 (holding that banning the teaching of evolution in public schools violates the First Amendment, since "teaching and learning" must not "be tailored to the principles or prohibitions of any religious sect or dogma"). If the law was enacted for the purpose of endorsing religion, "no consideration of the second or third criteria [of Lemon] is necessary." Wallace v. Jaffree, supra, at 472 U. S. 56. In this case, appellants have identified no clear secular purpose for the Louisiana Act. Page 482 U. S. 586True, the Act's stated purpose is to protect academic freedom. La.Rev.Stat.Ann. § 17:286.2 (West 1982). This phrase might, in common parlance, be understood as referring to enhancing the freedom of teachers to teach what they will. The Court of Appeals, however, correctly concluded that the Act was not designed to further that goal. [Footnote 6] We find no merit in the State's argument that the"legislature may not [have] use[d] the terms 'academic freedom' in the correct legal sense. They might have [had] in mind, instead, a basic concept of fairness; teaching all of the evidence."Tr. of Oral Arg. 60. Even if "academic freedom" is read to mean "teaching all of the evidence" with respect to the origin of human beings, the Act does not further this purpose. The goal of providing a more comprehensive science curriculum is not furthered either by outlawing the teaching of evolution or by requiring the teaching of creation science.AWhile the Court is normally deferential to a State's articulation of a secular purpose, it is required that the statement Page 482 U. S. 587 of such purpose be sincere, and not a sham. See Wallace v. Jaffree, 472 U.S. at 472 U. S. 64 (POWELL, J., concurring); id. at 472 U. S. 75 (O'CONNOR, J., concurring in judgment); Stone v. Graham, supra, at 449 U. S. 41; Abington School Dist. v. Schempp, 374 U.S. at 374 U. S. 223-224. As JUSTICE O'CONNOR stated in Wallace:"It is not a trivial matter, however, to require that the legislature manifest a secular purpose and omit all sectarian endorsements from its laws. That requirement is precisely tailored to the Establishment Clause's purpose of assuring that Government not intentionally endorse religion or a religious practice."472 U.S. at 472 U. S. 75 (concurring in judgment).It is clear from the legislative history that the purpose of the legislative sponsor, Senator Bill Keith, was to narrow the science curriculum. During the legislative hearings, Senator Keith stated: "My preference would be that neither [creationism nor evolution] be taught." 2 App. E-621. Such a ban on teaching does not promote -- indeed, it undermines -- the provision of a comprehensive scientific education.It is equally clear that requiring schools to teach creation science with evolution does not advance academic freedom. The Act does not grant teachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Indeed, the Court of Appeals found that no law prohibited Louisiana public school teachers from teaching any scientific theory. 765 F.2d at 1257. As the president of the Louisiana Science Teachers Association testified,"[a]ny scientific concept that's based on established fact can be included in our curriculum already, and no legislation allowing this is necessary."2 App. E-616. The Act provides Louisiana schoolteachers with no new authority. Thus, the stated purpose is not furthered by it.The Alabama statute held unconstitutional in Wallace v. Jaffree, supra, is analogous. In Wallace, the State characterized its new law as one designed to provide a 1-minute period for meditation. We rejected that stated purpose as insufficient, Page 482 U. S. 588 because a previously adopted Alabama law already provided for such a 1-minute period. Thus, in this case, as in Wallace, "[a]ppellants have not identified any secular purpose that was not fully served by [existing state law] before the enactment of [the statute in question]." 472 U.S. at 472 U. S. 59.Furthermore, the goal of basic "fairness" is hardly furthered by the Act's discriminatory preference for the teaching of creation science and against the teaching of evolution. [Footnote 7] While requiring that curriculum guides be developed for creation science, the Act says nothing of comparable guides for evolution. La.Rev.Stat.Ann. § 17:286.7A (West 1982). Similarly, resource services are supplied for creation science, but not for evolution. § 17:286.7B. Only "creation scientists" can serve on the panel that supplies the resource services. Ibid. The Act forbids school boards to discriminate against anyone who "chooses to be a creation scientist" or to teach "creationism," but fails to protect those who choose to teach evolution or any other non-creation-science theory, or who refuse to teach creation science. § 17:286.4C.If the Louisiana Legislature's purpose was solely to maximize the comprehensiveness and effectiveness of science instruction, it would have encouraged the teaching of all scientific theories about the origins of humankind. [Footnote 8] But under Page 482 U. S. 589 the Act's requirements, teachers who were once free to teach any and all facets of this subject are now unable to do so. Moreover, the Act fails even to ensure that creation science will be taught, but instead requires the teaching of this theory only when the theory of evolution is taught. Thus we agree with the Court of Appeals' conclusion that the Act does not serve to protect academic freedom, but has the distinctly different purpose of discrediting "evolution by counterbalancing its teaching at every turn with the teaching of creationism. . . ." 765 F.2d at 1257.BStone v. Graham invalidated the State's requirement that the Ten Commandments be posted in public classrooms."The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact"449 U.S. at 449 U. S. 41 (footnote omitted). As a result, the contention that the law was designed to provide instruction on a "fundamental legal code" was "not sufficient to avoid conflict with the First Amendment." Ibid. Similarly, Abington School Dist. v. Schempp held unconstitutional a statute"requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord's Prayer by the students in unison,"despite the proffer of such secular purposes as thepromotion of moral values, the contradiction Page 482 U. S. 590 to the materialistic trends of our times, the perpetuation of our institutions, and the teaching of literature.374 U.S. at 374 U. S. 223.As in Stone and Abington, we need not be blind in this case to the legislature's preeminent religious purpose in enacting this statute. There is a historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution. [Footnote 9] It was this link that concerned the Court in Epperson v. Arkansas, 393 U. S. 97 (1968), which also involved a facial challenge to a statute regulating the teaching of evolution. In that case, the Court reviewed an Arkansas statute that made it unlawful for an instructor to teach evolution or to use a textbook that referred to this scientific theory. Although the Arkansas anti-evolution law did not explicitly state its predominate religious purpose, the Court could not ignore that "[t]he statute was a product of the upsurge of fundamentalist' religious fervor" that has long viewed this particular scientific theory as contradicting the literal interpretation of the Bible. Id. at 393 U. S. 98, 393 U. S. 106-107. [Footnote 10] After reviewing the history of anti-evolution statutes, the Court determined that"there can be no doubt that the motivation for the [Arkansas] law was the same [as other anti-evolution statutes]: to suppress the teaching of a theory which, it was thought, 'denied' the divine creation of man."Id. at 393 U. S. 109. The Court found that there can be no legitimate Page 482 U. S. 591 state interest in protecting particular religions from scientific views "distasteful to them," id. at 393 U. S. 107 (citation omitted), and concluded"that the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma, . . ."id. at 393 U. S. 106.These same historic and contemporaneous antagonisms between the teachings of certain religious denominations and the teaching of evolution are present in this case. The preeminent purpose of the Louisiana Legislature was clearly to advance the religious viewpoint that a supernatural being created humankind. [Footnote 11] The term "creation science" was defined as embracing this particular religious doctrine by those responsible for the passage of the Creationism Act. Senator Keith's leading expert on creation science, Edward Boudreaux, testified at the legislative hearings that the theory of creation science included belief in the existence of a supernatural creator. See 1 App. E-421 - E-422 (noting that "creation scientists" point to high probability that life was "created by an intelligent mind"). [Footnote 12] Senator Keith also cited testimony from other experts to support the creation science view that "a creator [was] responsible for the universe and everything in it." [Footnote 13] 2 App. E-497. The legislative history Page 482 U. S. 592 therefore reveals that the term "creation science," as contemplated by the legislature that adopted this Act, embodies the religious belief that a supernatural creator was responsible for the creation of humankind.Furthermore, it is not happenstance that the legislature required the teaching of a theory that coincided with this religious view. The legislative history documents that the Act's primary purpose was to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. The sponsor of the Creationism Act, Senator Keith, explained during the legislative hearings that his disdain for the theory of evolution resulted from the support that evolution supplied to views contrary to his own religious beliefs. According to Senator Keith, the theory of evolution was consonant with the "cardinal principle[s] of religious humanism, secular humanism, theological liberalism, aetheistism [sic]." 1 App. E-312 - E-313; see also 2 App. E-499 - E-500. The state senator repeatedly stated that scientific evidence supporting his religious views should be included in the public school curriculum to redress the fact that the theory of evolution incidentally coincided with what he characterized as religious beliefs antithetical to his own. [Footnote 14] Page 482 U. S. 593 The legislation therefore sought to alter the science curriculum to reflect endorsement of a religious view that is antagonistic to the theory of evolution.In this case, the purpose of the Creationism Act was to restructure the science curriculum to conform with a particular religious viewpoint. Out of many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects. As in Epperson, the legislature passed the Act to give preference to those religious groups which have as one of their tenets the creation of humankind by a divine creator. The "overriding fact" that confronted the Court in Epperson was"that Arkansas' law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with . . . a particular interpretation of the Book of Genesis by a particular religious group."393 U.S. at 393 U. S. 103. Similarly, the Creationism Act is designed either to promote the theory of creation science which embodies a particular religious tenet by requiring that creation science be taught whenever evolution is taught or to prohibit the teaching of a scientific theory disfavored by certain religious sects by forbidding the teaching of evolution when creation science is not also taught. The Establishment Clause, however, "forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma." Id. at 393 U. S. 106-107 (emphasis added). Because the primary purpose of the Creationism Act is to advance a particular religious belief, the Act endorses religion in violation of the First Amendment.We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught. Indeed, the Court acknowledged in Stone that its decision Page 482 U. S. 594 forbidding the posting of the Ten Commandments did not mean that no use could ever be made of the Ten Commandments, or that the Ten Commandments played an exclusively religious role in the history of Western Civilization. 449 U.S. at 449 U. S. 42. In a similar way, teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction. But because the primary purpose of the Creationism Act is to endorse a particular religious doctrine, the Act furthers religion in violation of the Establishment Clause. [Footnote 15]IVAppellants contend that genuine issues of material fact remain in dispute, and therefore the District Court erred in granting summary judgment. Federal Rule of Civil Procedure 56(c) provides that summary judgment"shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."A court's finding of improper purpose behind a statute is appropriately determined by the statute on its face, its legislative history, or its interpretation by a responsible administrative agency. See, e.g., Wallace v. Jaffree, 472 U.S. at 472 U. S. 56-61; Stone v. Graham, 449 U.S. at 449 U. S. 41-42; Epperson v. Arkansas, 393 U.S. at 393 U. S. 103-109. The plain meaning of the statute's words, enlightened by their context and the contemporaneous legislative history, can control the determination of legislative purpose. See Wallace v. Jaffree, supra, at 472 U. S. 74 (O'CONNOR, J., concurring in judgment); Richards v. United States, 369 U. S. 1, 369 U. S. 9 (1962); Jay Page 482 U. S. 595 v. Boyd, 351 U. S. 345, 351 U. S. 357 (1956). Moreover, in determining the legislative purpose of a statute, the Court has also considered the historical context of the statute, e.g., Epperson v. Arkansas, supra, and the specific sequence of events leading to passage of the statute, e.g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977).In this case, appellees' motion for summary judgment rested on the plain language of the Creationism Act, the legislative history and historical context of the Act, the specific sequence of events leading to the passage of the Act, the State Board's report on a survey of school superintendents, and the correspondence between the Act's legislative sponsor and its key witnesses. Appellants contend that affidavits made by two scientists, two theologians, and an education administrator raise a genuine issue of material fact, and that summary judgment was therefore barred. The affidavits define creation science as "origin through abrupt appearance in complex form," and allege that such a viewpoint constitutes a true scientific theory. See App. to Brief for Appellants A-7 to A-40.We agree with the lower courts that these affidavits do not raise a genuine issue of material fact. The existence of "uncontroverted affidavits" does not bar summary judgment. [Footnote 16] Moreover, the postenactment testimony of outside experts is of little use in determining the Louisiana Legislature's purpose in enacting this statute. The Louisiana Legislature did hear and rely on scientific experts in passing the bill, [Footnote 17] but none of the persons making the affidavits produced by the appellants Page 482 U. S. 596 participated in or contributed to the enactment of the law or its implementation. [Footnote 18] The District Court, in its discretion, properly concluded that a Monday morning "battle of the experts" over possible technical meanings of terms in the statute would not illuminate the contemporaneous purpose of the Louisiana Legislature when it made the law. [Footnote 19] We therefore conclude that the District Court did not err in finding that appellants failed to raise a genuine issue of material fact, and in granting summary judgment. [Footnote 20]VThe Louisiana Creationism Act advances a religious doctrine by requiring either the banishment of the theory of evolution from public school classrooms or the presentation of a religious viewpoint that rejects evolution in its entirety. Page 482 U. S. 597 The Act violates the Establishment Clause of the First Amendment because it seeks to employ the symbolic and financial support of government to achieve a religious purpose. The judgment of the Court of Appeals therefore isAffirmed

U.S. Supreme CourtEdwards v. Aguillard, 482 U.S. 578 (1987)Edwards v. AguillardNo. 85-1513Argued December 10, 1986Decided June 19, 1987482 U.S. 578SyllabusLouisiana's "Creationism Act" forbids the teaching of the theory of evolution in public elementary and secondary schools unless accompanied by instruction in the theory of "creation science." The Act does not require the teaching of either theory unless the other is taught. It defines the theories as "the scientific evidences for [creation or evolution] and inferences from those scientific evidences." Appellees, who include Louisiana parents, teachers, and religious leaders, challenged the Act's constitutionality in Federal District Court, seeking an injunction and declaratory relief. The District Court granted summary judgment to appellees, holding that the Act violated the Establishment Clause of the First Amendment. The Court of Appeals affirmed.Held:1. The Act is facially invalid as violative of the Establishment Clause of the First Amendment, because it lacks a clear secular purpose. Pp. 482 U.S. 585-594.(a) The Act does not further its stated secular purpose of "protecting academic freedom." It does not enhance the freedom of teachers to teach what they choose, and fails to further the goal of "teaching all of the evidence." Forbidding the teaching of evolution when creation science is not also taught undermines the provision of a comprehensive scientific education. Moreover, requiring the teaching of creation science with evolution does not give schoolteachers a flexibility that they did not already possess to supplant the present science curriculum with the presentation of theories, besides evolution, about the origin of life. Furthermore, the contention that the Act furthers a "basic concept of fairness" by requiring the teaching of all of the evidence on the subject is without merit. Indeed, the Act evinces a discriminatory preference for the teaching of creation science and against the teaching of evolution by requiring that curriculum guides be developed and resource services supplied for teaching creationism, but not for teaching evolution, by limiting membership on the resource services panel to "creation scientists," and by forbidding school boards to discriminate against anyone who "chooses to be a creation scientist" or to teach creation science, while failing to protect those who choose to teach other theories or who refuse Page 482 U. S. 579 to teach creation science. A law intended to maximize the comprehensiveness and effectiveness of science instruction would encourage the teaching of all scientific theories about human origins. Instead, this Act has the distinctly different purpose of discrediting evolution by counterbalancing its teaching at every turn with the teaching of creationism. Pp. 482 U. S. 586-589.(b) The Act impermissibly endorses religion by advancing the religious belief that a supernatural being created humankind. The legislative history demonstrates that the term "creation science," as contemplated by the state legislature, embraces this religious teaching. The Act's primary purpose was to change the public school science curriculum to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety. Thus, the Act is designed either to promote the theory of creation science that embodies a particular religious tenet or to prohibit the teaching of a scientific theory disfavored by certain religious sects. In either case, the Act violates the First Amendment. Pp. 482 U. S. 589-594.2. The District Court did not err in granting summary judgment upon a finding that appellants had failed to raise a genuine issue of material fact. Appellants relied on the "uncontroverted" affidavits of scientists, theologians, and an education administrator defining creation science as "origin through abrupt appearance in complex form" and alleging that such a viewpoint constitutes a true scientific theory. The District Court, in its discretion, properly concluded that the postenactment testimony of these experts concerning the possible technical meanings of the Act's terms would not illuminate the contemporaneous purpose of the state legislature when it passed the Act. None of the persons making the affidavits produced by appellants participated in or contributed to the enactment of the law. Pp. 482 U. S. 594-596.765 F.2d 1251, affirmed.BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined, and in all but Part II of which O'CONNOR, J., joined. POWELL, J., filed a concurring opinion, in which O'CONNOR, J., joined, post, p. 482 U. S. 597. WHITE, J., filed an opinion concurring in the judgment, post, p. 482 U. S. 608. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, post, p. 482 U. S. 610. Page 482 U. S. 580

1987_86-772

JUSTICE O'CONNOR announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA join.This case calls upon us to define the proper legal standard for determining when isolated decisions by municipal officials or employees may expose the municipality itself to liability under 42 U.S.C. § 1983.IThe principal facts are not in dispute. Respondent James H. Praprotnik is an architect who began working for petitioner city of St. Louis in 1968. For several years, respondent consistently received favorable evaluations of his job performance, uncommonly quick promotions, and significant increases in salary. By 1980, he was serving in a management-level city planning position at petitioner's Community Development Agency (CDA).The Director of CDA, Donald Spaid, had instituted a requirement that the agency's professional employees, including architects, obtain advance approval before taking on private clients. Respondent and other CDA employees objected Page 485 U. S. 115 to the requirement. In April, 1980, respondent was suspended for 15 days by CDA's Director of Urban Design, Charles Kindleberger, for having accepted outside employment without prior approval. Respondent appealed to the city's Civil Service Commission, a body charged with reviewing employee grievances. Finding the penalty too harsh, the Commission reversed the suspension, awarded respondent backpay, and directed that he be reprimanded for having failed to secure a clear understanding of the rule.The Commission's decision was not well received by respondent's supervisors at CDA. Kindleberger later testified that he believed respondent had lied to the Commission, and that Spaid was angry with respondent.Respondent's next two annual job performance evaluations were markedly less favorable than those in previous years. In discussing one of these evaluations with respondent, Kindleberger apparently mentioned his displeasure with respondent's 1980 appeal to the Civil Service Commission. Respondent appealed both evaluations to the Department of Personnel. In each case, the Department ordered partial relief and was upheld by the city's Director of Personnel or the Civil Service Commission.In April, 1981, a new Mayor came into office, and Donald Spaid was replaced as Director of CDA by Frank Hamsher. As a result of budget cuts, a number of layoffs and transfers significantly reduced the size of CDA and of the planning section in which respondent worked. Respondent, however, was retained.In the spring of 1982, a second round of layoffs and transfers occurred at CDA. At that time, the city's Heritage and Urban Design Commission (Heritage) was seeking approval to hire someone who was qualified in architecture and urban planning. Hamsher arranged with the Director of Heritage, Henry Jackson, for certain functions to be transferred from CDA to Heritage. This arrangement, which made it possible for Heritage to employ a relatively high-level "city planning Page 485 U. S. 116 manager," was approved by Jackson's supervisor, Thomas Nash. Hamsher then transferred respondent to Heritage to fill this position.Respondent objected to the transfer, and appealed to the Civil Service Commission. The Commission declined to hear the appeal because respondent had not suffered a reduction in his pay or grade. Respondent then filed suit in Federal District Court, alleging that the transfer was unconstitutional. The city was named as a defendant, along with Kindleberger, Hamsher, Jackson (whom respondent deleted from the list before trial), and Deborah Patterson, who had succeeded Hamsher at CDA.At Heritage, respondent became embroiled in a series of disputes with Jackson and Jackson's successor, Robert Killen. Respondent was dissatisfied with the work he was assigned, which consisted of unchallenging clerical functions far below the level of responsibilities that he had previously enjoyed. At least one adverse personnel decision was taken against respondent, and he obtained partial relief after appealing that decision.In December 1983, respondent was laid off from Heritage. The layoff was attributed to a lack of funds, and this apparently meant that respondent's supervisors had concluded that they could create two lower level positions with the funds that were being used to pay respondent's salary. Respondent then amended the complaint in his lawsuit to include a challenge to the layoff. He also appealed to the Civil Service Commission, but proceedings in that forum were postponed because of the pending lawsuit and have never been completed. Tr. Oral Arg. 31-32.The case went to trial on two theories: (1) that respondent's First Amendment rights had been violated through retaliatory actions taken in response to his appeal of his 1980 suspension; and (2) that respondent's layoff from Heritage was carried out for pretextual reasons in violation of due process. The jury returned special verdicts exonerating Page 485 U. S. 117 each of the three individual defendants, but finding the city liable under both theories. Judgment was entered on the verdicts, and the city appealed.A panel of the Court of Appeals for the Eighth Circuit found that the due process claim had been submitted to the jury on an erroneous legal theory, and vacated that portion of the judgment. With one judge dissenting, however, the panel affirmed the verdict holding the city liable for violating respondent's First Amendment rights. 798 F.2d 1168 (1986). Only the second of these holdings is challenged here.The Court of Appeals found that the jury had implicitly determined that respondent's layoff from Heritage was brought about by an unconstitutional city policy. Id. at 1173. Applying a test under which a "policymaker" is one whose employment decisions are "final" in the sense that they are not subjected to de novo review by higher ranking officials, the Court of Appeals concluded that the city could be held liable for adverse personnel decisions taken by respondent's supervisors. Id. at 1173-1175. In response to petitioner's contention that the city's personnel policies are actually set by the Civil Service Commission, the Court of Appeals concluded that the scope of review before that body was too "highly circumscribed" to allow it fairly to be said that the Commission, rather than the officials who initiated the actions leading to respondent's injury, were the "final authority" responsible for setting city policy. Id. at 1175.Turning to the question whether a rational jury could have concluded that respondent had been injured by an unconstitutional policy, the Court of Appeals found that respondent's transfer from CDA to Heritage had been "orchestrated" by Hamsher, that the transfer had amounted to a "constructive discharge," and that the injury had reached fruition when respondent was eventually laid off by Nash and Killen. Id. at 1175-1176, and n. 8. The court held that the jury's verdict exonerating Hamsher and the other individual defendants could be reconciled with a finding of liability Page 485 U. S. 118 against the city because "the named defendants were not the supervisors directly causing the lay off, when the actual damages arose." Id. at 1173, n. 3. Cf. Los Angeles v. Heller, 475 U. S. 796 (1986).The dissenting judge relied on our decision in Pembaur v. Cincinnati, 475 U. S. 469 (1986). He found that the power to set employment policy for petitioner city of St. Louis lay with the Mayor and Aldermen, who were authorized to enact ordinances, and with the Civil Service Commission, whose function was to hear appeals from city employees who believed that their rights under the city's Charter, or under applicable rules and ordinances, had not been properly respected. 798 F.2d at 1180. The dissent concluded that respondent had submitted no evidence proving that the Mayor and Aldermen, or the Commission, had established a policy of retaliating against employees for appealing from adverse personnel decisions. Id. at 1179-1181. The dissenting judge also concluded that, even if there were such a policy, the record evidence would not support a finding that respondent was in fact transferred or laid off in retaliation for the 1980 appeal from his suspension. Id. at 1181-1182.We granted certiorari, 479 U.S. 1029 (1987), and we now reverse.IIWe begin by addressing a threshold procedural issue. The second question presented in the petition for certiorari reads as follows:"Whether the failure of a local government to establish an appellate procedure for the review of officials' decisions which does not defer in substantial part to the original decisionmaker's decision constitutes a delegation of authority to establish final government policy such that liability may be imposed on the local government on the basis of the decisionmaker's act alone when the act is neither taken pursuant to a rule of general applicability Page 485 U. S. 119 nor is a decision of specific application adopted as the result of a formal process?"Pet. for Cert. i.Although this question was manifestly framed in light of the holding of the Court of Appeals, respondent argues that petitioner failed to preserve the question through a timely objection to the jury instructions under Federal Rule of Civil Procedure 51. Arguing that both parties treated the identification of municipal "policymakers" as a question of fact at trial, respondent emphasizes that the jury was given the following instruction, which was offered by the city itself:"As a general principle, a municipality is not liable under 42 U.S.C.1983 for the actions of its employees. However, a municipality may be held liable under 42 U.S.C.1983 if the allegedly unconstitutional act was committed by an official high enough in the government so that his or her actions can be said to represent a government decision."App. 113.Relying on Oklahoma City v. Tuttle, 471 U. S. 808 (1985), and Springfield v. Kibbe, 480 U. S. 257 (1987), respondent contends that the jury instructions should be reviewed only for plain error, and that the jury's verdict should be tested only for sufficiency of the evidence. Declining to defend the legal standard adopted by the Court of Appeals, respondent vigorously insists that the judgment should be affirmed on the basis of the jury's verdict and petitioner's alleged failure to comply with Rule 51.Petitioner argues that it preserved the legal issues presented by its petition for certiorari in at least two ways. First, it filed a pretrial motion for summary judgment, or alternatively for judgment on the pleadings. In support of that motion, petitioner argued that respondent had failed to allege the existence of any impermissible municipal policy or of any facts that would indicate that such a policy existed. Second, petitioner filed a motion for directed verdict at the close of respondent's case, renewed that motion at the close Page 485 U. S. 120 of all the evidence, and eventually filed a motion for judgment notwithstanding the verdict.Respondent's arguments do not bring our jurisdiction into question, and we must not lose sight of the fact, stressed in Tuttle, that the"decision to grant certiorari represents a commitment of scarce judicial resources with a view to deciding the merits of one or more of the questions presented in the petition."471 U.S. at 471 U. S. 816. In Kibbe, it is true, the writ was dismissed in part because the petitioner sought to challenge a jury instruction to which it had not objected at trial. In the case before us, the focus of petitioner's challenge is not on the jury instruction itself, but on the denial of its motions for summary judgment and a directed verdict. Although the same legal issue was raised both by those motions and by the jury instruction,"the failure to object to an instruction does not render the instruction the 'law of the case' for purposes of appellate review of the denial of a directed verdict or judgment notwithstanding the verdict."Kibbe, supra, at 480 U. S. 264 (dissenting opinion) (citations omitted). Petitioner's legal position in the District Court -- that respondent had failed to establish an unconstitutional municipal policy -- was consistent with the legal standard that it now advocates. It should not be surprising if petitioner's arguments in the District Court were much less detailed than the arguments it now makes in response to the decision of the Page 485 U. S. 121 Court of Appeals. That, however, does not imply that petitioner failed to preserve the issue raised in its petition for certiorari. Cf. post at 485 U. S. 165-167 (STEVENS, J., dissenting). Accordingly, we find no obstacle to reviewing the question presented in the petition for certiorari, a question that was very clearly considered, and decided, by the Court of Appeals.We note, too, that petitioner has, throughout this litigation, been confronted with a legal landscape whose contours are "in a state of evolving definition and uncertainty." Newport v. Fact Concerts, Inc., 453 U. S. 247, 453 U. S. 256 (1981). We therefore do not believe that our review of the decision of the Court of Appeals, a decision raising a question that "is important and appears likely to recur in § 1983 litigation against municipalities," id. at 453 U. S. 257, will undermine the policy of judicial efficiency that underlies Rule 51. The definition of municipal liability manifestly needs clarification, at least in part to give lower courts and litigants a fairer chance to craft jury instructions that will not require scrutiny on appellate review.IIIASection 1 of the Ku Klux Act of 1871, Rev.Stat. § 1979, as amended, 42 U.S.C. § 1983, provides:"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ."Ten years ago, this Court held that municipalities and other bodies of local government are "persons" within the meaning of this statute. Such a body may therefore be sued directly if it is alleged to have caused a constitutional tort through "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Monell v. New York City Dept. of Social Services, 436 U. S. 658, 436 U. S. 690 (1978). The Court pointed out that § 1983 also authorizes suit"for constitutional deprivations visited pursuant to governmental 'custom,' even though such a custom has not received formal approval through the body's official decisionmaking channels."Id. at 436 U. S. 690-691. At the same time, the Court rejected the use of the doctrine of respondeat superior, and concluded that municipalities could be held liable only when an injury was inflicted by a government's Page 485 U. S. 122 "lawmakers or by those whose edicts or acts may fairly be said to represent official policy." Id. at 436 U. S. 694.Monell's rejection of respondeat superior, and its insistence that local governments could be held liable only for the results of unconstitutional governmental "policies," arose from the language and history of § 1983. For our purposes here, the crucial terms of the statute are those that provide for liability when a government "subjects [a person], or causes [that person] to be subjected," to a deprivation of constitutional rights. Aware that governmental bodies can act only through natural persons, the Court concluded that these governments should be held responsible when, and only when, their official policies cause their employees to violate another person's constitutional rights. Reading the statute's language in the light of its legislative history, the Court found that vicarious liability would be incompatible with the causation requirement set out on the face of § 1983. See id. at 436 U. S. 691. That conclusion, like decisions that have widened the scope of § 1983 by recognizing constitutional rights that were unheard of in 1871, has been repeatedly reaffirmed. See, e.g., Owen v. City of Independence, 445 U. S. 622, 445 U. S. 633, 445 U. S. 655, n. 39 (1980); Polk County v. Dodson, 454 U. S. 312, 454 U. S. 325 (1981); Tuttle, 471 U.S. at 471 U. S. 818, and n. 5 (plurality opinion); id. at 471 U. S. 828 (BRENNAN, J., concurring in part and concurring in judgment); Pembaur v. Cincinnati, 475 U.S. at 475 U. S. 478-480, and nn. 7-8. Cf. Newport v. Fact Concerts, Inc., supra, at 453 U. S. 259 ("[B]ecause the 1871 Act was designed to expose state and local officials to a new form of liability, it would defeat the promise of the statute to recognize any preexisting immunity without determining both the policies that it serves and its compatibility with the purposes of § 1983").In Monell itself, it was undisputed that there had been an official policy requiring city employees to take actions that were unconstitutional under this Court's decisions. Without attempting to draw the line between actions taken pursuant to official policy and the independent actions of employees Page 485 U. S. 123 and agents, the Monell Court left the "full contours" of municipal liability under § 1983 to be developed further on "another day." 436 U.S. at 436 U. S. 695.In the years since Monell was decided, the Court has considered several cases involving isolated acts by government officials and employees. We have assumed that an unconstitutional governmental policy could be inferred from a single decision taken by the highest officials responsible for setting policy in that area of the government's business. See, e.g., Owen v. City of Independence, supra; Newport v. Fact Concerts, Inc., 453 U. S. 247 (1981). Cf. Pembaur, supra, at 475 U. S. 480. At the other end of the spectrum, we have held that an unjustified shooting by a police officer cannot, without more, be thought to result from official policy. Tuttle, 471 U.S. at 471 U. S. 821 (plurality opinion); id. at 471 U. S. 830-831, and n. 5 (BRENNAN, J., concurring in part and concurring in judgment). Cf. Kibbe, 480 U.S. at 480 U. S. 260 (dissenting opinion).Two Terms ago, in Pembaur, supra, we undertook to define more precisely when a decision on a single occasion may be enough to establish an unconstitutional municipal policy. Although the Court was unable to settle on a general formulation, JUSTICE BRENNAN's opinion articulated several guiding principles. First, a majority of the Court agreed that municipalities may be held liable under § 1983 only for acts for which the municipality itself is actually responsible, "that is, acts which the municipality has officially sanctioned or ordered." Id. at 475 U. S. 480. Second, only those municipal officials who have "final policymaking authority" may by their actions subject the government to § 1983 liability. Id. at 475 U. S. 483 (plurality opinion). Third, whether a particular official has "final policymaking authority" is a question of state law. Ibid. (plurality opinion). Fourth, the challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business. Id. at 475 U. S. 482-483, and n. 12 (plurality opinion). Page 485 U. S. 124The Courts of Appeals have already diverged in their interpretations of these principles. Compare, for example, Williams v. Butler, 802 F.2d 296, 299-302 (CA8 1986) (en banc), cert. pending sub nom. Little Rock v. Williams, No. 86-1049, with Jett v. Dallas Independent School Dist., 798 F.2d 748, 759-760 (CA5 1986) (dictum). Today, we set out again to clarify the issue that we last addressed in Pembaur.BWe begin by reiterating that the identification of policymaking officials is a question of state law."Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law."Pembaur v. Cincinnati, supra, at 475 U. S. 483 (plurality opinion). [Footnote 1] Thus the identification of policymaking officials is not a question of federal law, and it is not a question of fact in the usual sense. The States have extremely wide latitude in determining the form that local government takes, and local preferences have led to a profusion of distinct forms. Among the many kinds of municipal corporations, political subdivisions, and special districts of all sorts, one may expect to find a rich variety of ways in which the power of government Page 485 U. S. 125 is distributed among a host of different officials and official bodies. See generally C. Rhyne, The Law of Local Government Operations §§ 1.3-1.7 (1980). Without attempting to canvass the numberless factual scenarios that may come to light in litigation, we can be confident that state law (which may include valid local ordinances and regulations) will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government's business. [Footnote 2]We are not, of course, predicting that state law will always speak with perfect clarity. We have no reason to suppose, Page 485 U. S. 126 however, that federal courts will face greater difficulties here than those that they routinely address in other contexts. We are also aware that there will be cases in which policymaking responsibility is shared among more than one official or body. In the case before us, for example, it appears that the Mayor and Aldermen are authorized to adopt such ordinances relating to personnel administration as are compatible with the City Charter. See St. Louis City Charter, Art. XVIII, § 7(b), App. 62-63. The Civil Service Commission, for its part, is required to"prescribe . . . rules for the administration and enforcement of the provisions of this article, and of any ordinance adopted in pursuance thereof, and not inconsistent therewith."§ 7(a), App. 62. Assuming that applicable law does not make the decisions of the Commission reviewable by the Mayor and Aldermen, or vice versa, one would have to conclude that policy decisions made either by the Mayor and Aldermen or by the Commission would be attributable to the city itself. In any event, however, a federal court would not be justified in assuming that municipal policymaking authority lies somewhere other than where the applicable law purports to put it. And certainly there can be no justification for giving a jury the discretion to determine which officials are high enough in the government that their actions can be said to represent a decision of the government itself.As the plurality in Pembaur recognized, special difficulties can arise when it is contended that a municipal policymaker has delegated his policymaking authority to another official. 475 U.S. at 475 U. S. 482-483, and n. 12. If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability. If, however, a city's lawful policymakers could insulate the government from liability simply by delegating their policymaking authority to others, § 1983 could not serve its intended purpose. It may not be possible to draw an Page 485 U. S. 127 elegant line that will resolve this conundrum, but certain principles should provide useful guidance.First, whatever analysis is used to identify municipal policymakers, egregious attempts by local governments to insulate themselves from liability for unconstitutional policies are precluded by a separate doctrine. Relying on the language of § 1983, the Court has long recognized that a plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is "so permanent and well settled as to constitute a custom or usage' with the force of law." Adickes v. S. H. Kress & Co., 398 U. S. 144, 398 U. S. 167-168 (1970). That principle, which has not been affected by Monell or subsequent cases, ensures that most deliberate municipal evasions of the Constitution will be sharply limited.Second, as the Pembaur plurality recognized, the authority to make municipal policy is necessarily the authority to make final policy. 475 U.S. at 475 U. S. 481-484. When an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality. Similarly, when a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.CWhatever refinements of these principles may be suggested in the future, we have little difficulty concluding that the Court of Appeals applied an incorrect legal standard in this case. In reaching this conclusion, we do not decide whether the First Amendment forbade the city to retaliate against respondent for having taken advantage of the grievance mechanism in 1980. Nor do we decide whether there Page 485 U. S. 128 was evidence in this record from which a rational jury could conclude either that such retaliation actually occurred or that respondent suffered any compensable injury from whatever retaliatory action may have been taken. Finally, we do not address petitioner's contention that the jury verdict exonerating the individual defendants cannot be reconciled with the verdict against the city. Even assuming that all these issues were properly resolved in respondent's favor, we would not be able to affirm the decision of the Court of Appeals.The city cannot be held liable under § 1983 unless respondent proved the existence of an unconstitutional municipal policy. Respondent does not contend that anyone in city government ever promulgated, or even articulated, such a policy. Nor did he attempt to prove that such retaliation was ever directed against anyone other than himself. Respondent contends that the record can be read to establish that his supervisors were angered by his 1980 appeal to the Civil Service Commission; that new supervisors in a new administration chose, for reasons passed on through some informal means, to retaliate against respondent two years later by transferring him to another agency; and that this transfer was part of a scheme that led, another year and a half later, to his layoff. Even if one assumes that all this was true, it says nothing about the actions of those whom the law established as the makers of municipal policy in matters of personnel administration. The Mayor and Aldermen enacted no ordinance designed to retaliate against respondent or against similarly situated employees. On the contrary, the city established an independent Civil Service Commission and empowered it to review and correct improper personnel actions. Respondent does not deny that his repeated appeals from adverse personnel decisions repeatedly brought him at least partial relief, and the Civil Service Commission never so much as hinted that retaliatory transfers or layoffs were permissible. Respondent points to no evidence indicating that the Commission delegated to anyone its final authority to Page 485 U. S. 129 interpret and enforce the following policy set out in Article XVIII of the city's Charter, § 2(a), App. 49:"Merit and fitness. All appointments and promotions to positions in the service of the city and all measures for the control and regulation of employment in such positions, and separation therefrom, shall be on the sole basis of merit and fitness. . . ."The Court of Appeals concluded that "appointing authorities," like Hamsher and Killen, who had the authority to initiate transfers and layoffs, were municipal "policymakers." The court based this conclusion on its findings (1) that the decisions of these employees were not individually reviewed for "substantive propriety" by higher supervisory officials; and (2) that the Civil Service Commission decided appeals from such decisions, if at all, in a circumscribed manner that gave substantial deference to the original decisionmaker. 798 F.2d at 1174-1175. We find these propositions insufficient to support the conclusion that Hamsher and Killen were authorized to establish employment policy for the city with respect to transfers and layoffs. To the contrary, the City Charter expressly states that the Civil Service Commission has the power and the duty:"To consider and determine any matter involved in the administration and enforcement of this [Civil Service] article and the rules and ordinances adopted in accordance therewith that may be referred to it for decision by the director [of personnel], or on appeal by any appointing authority, employee, or taxpayer of the city, from any act of the director or of any appointing authority. The decision of the commission in all such matters shall be final, subject, however, to any right of action under any law of the state or of the United States."St. Louis City Charter, Art. XVIII, § 7(d), App. 63.This case therefore resembles the hypothetical example in Pembaur:"[I]f [city] employment policy was set by the Page 485 U. S. 130 [Mayor and Aldermen and by the Civil Service Commission], only [those] bod[ies'] decisions would provide a basis for [city] liability. This would be true even if the [Mayor and Aldermen and the Commission] left the [appointing authorities] discretion to hire and fire employees and [they] exercised that discretion in an unconstitutional manner. . . ."475 U.S. at 475 U. S. 483, n. 12. A majority of the Court of Appeals panel determined that the Civil Service Commission's review of individual employment actions gave too much deference to the decisions of appointing authorities like Hamsher and Killen. Simply going along with discretionary decisions made by one's subordinates, however, is not a delegation to them of the authority to make policy. It is equally consistent with a presumption that the subordinates are faithfully attempting to comply with the policies that are supposed to guide them. It would be a different matter if a particular decision by a subordinate was cast in the form of a policy statement and expressly approved by the supervising policymaker. It would also be a different matter if a series of decisions by a subordinate official manifested a "custom or usage" of which the supervisor must have been aware. See supra at 485 U. S. 127. In both those cases, the supervisor could realistically be deemed to have adopted a policy that happened to have been formulated or initiated by a lower ranking official. But the mere failure to investigate the basis of a subordinate's discretionary decisions does not amount to a delegation of policymaking authority, especially where (as here) the wrongfulness of the subordinate's decision arises from a retaliatory motive or other unstated rationale. In such circumstances, the purposes of § 1983 would not be served by treating a subordinate employee's decision as if it were a reflection of municipal policy.JUSTICE BRENNAN's opinion, concurring in the judgment, finds implications in our discussion that we do not think necessary or correct. See post at 485 U. S. 142-147. We nowhere say or imply, for example, that"a municipal charter's precatory Page 485 U. S. 131 admonition against discrimination or any other employment practice not based on merit and fitness effectively insulates the municipality from any liability based on acts inconsistent with that policy."Post at 485 U. S. 145, n. 7. Rather, we would respect the decisions, embodied in state and local law, that allocate policymaking authority among particular individuals and bodies. Refusals to carry out stated policies could obviously help to show that a municipality's actual policies were different from the ones that had been announced. If such a showing were made, we would be confronted with a different case than the one we decide today.Nor do we believe that we have left a "gaping hole" in § 1983 that needs to be filled with the vague concept of "de facto final policymaking authority." Post at 485 U. S. 144. Except perhaps as a step towards overruling Monell and adopting the doctrine of respondeat superior, ad hoc searches for officials possessing such "de facto" authority would serve primarily to foster needless unpredictability in the application of § 1983.IVWe cannot accept either the Court of Appeals' broad definition of municipal policymakers or respondent's suggestion that a jury should be entitled to define for itself which officials' decisions should expose a municipality to liability. Respondent has suggested that the record will support an inference that policymaking authority was in fact delegated to individuals who took retaliatory action against him and who were not exonerated by the jury. Respondent's arguments appear to depend on a legal standard similar to the one suggested in JUSTICE STEVENS' dissenting opinion, post at 485 U. S. 171, which we do not accept. Our examination of the record and state law, however, suggests that further review of this case may be warranted in light of the principles we have discussed. That task is best left to the Court of Appeals, which will be free to invite additional briefing and argument if necessary. Accordingly, the decision of the Court of Appeals is Page 485 U. S. 132 reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtCity of St. Louis v. Praprotnik, 485 U.S. 112 (1988)City of St. Louis v. PraprotnikNo. 86-772Argued October 7, 1987Decided March 2, 1988485 U.S. 112SyllabusTwo years after respondent, a management-level employee in one of petitioner city's agencies, successfully appealed a temporary suspension to petitioner's Civil Service Commission (Commission), he was transferred to a clerical position in another city agency, from which he was laid off the next year. In respondent's suit under 42 U.S.C. § 1983, the jury found petitioner liable on the theory that respondent's First Amendment rights had been violated through retaliatory actions taken in response to his suspension appeal. The Court of Appeals affirmed the judgment entered on this verdict, finding that the jury had implicitly determined that respondent's layoff was brought about by an unconstitutional city policy. Applying a test under which a "policymaker" is one whose employment decisions are "final" in the sense that they are not subjected to de novo review by higher ranking officials, the court concluded that petitioner could be held liable for adverse personnel decisions made by respondent's supervisors.Held: The judgment is reversed, and the case is remanded.798 F.2d 1168, reversed and remanded.JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE SCALIA, concluded that:1. Petitioner's failure to timely object under Federal Rule of Civil Procedure 51 to a jury instruction on municipalities' § 1983 liability for their employees' unconstitutional acts does not deprive this Court of jurisdiction to determine the proper legal standard for imposing such liability. The same legal issue was raised by petitioner's motions for summary judgment and a directed verdict, was considered and decided by the Court of Appeals, and is likely to recur in § 1983 litigation against municipalities. Review in this Court will not undermine the policy of judicial efficiency that underlies Rule 51. Pp. 485 U. S. 118-121.2. The Court of Appeals applied an incorrect legal standard for determining when isolated decisions by municipal officials or employees may expose the municipality to § 1983 liability. The identification of officials having "final policymaking authority" is a question of state (including local) law, rather than a question of fact for the jury. Here, it appears that petitioner's City Charter gives the authority to set employment policy to the Mayor and Aldermen, who are empowered to enact ordinances, Page 485 U. S. 113 and to the Commission, whose function is to hear employees' appeals. Petitioner cannot be held liable unless respondent proved the existence of an unconstitutional policy promulgated by officials having such authority. The Mayor and Aldermen did not enact an ordinance permitting retaliatory transfers or layoffs. Nor has the Commission indicated that such actions were permissible; it has, on the contrary, granted respondent at least partial relief in a series of appeals from adverse personnel decisions. The Court of Appeals' findings that the decisions of respondent's supervisors were not individually reviewed for "substantive propriety" by higher supervisory officials, and were accorded substantial deference by the Commission on appeal, are insufficient to support the conclusion that the supervisors had been delegated the authority to establish transfer and layoff policy. When a subordinate's discretionary decisions are constrained or subjected to review by authorized policymakers, they, and not the subordinate, have final policymaking authority. Positing a delegation based on their mere acquiescence in, or failure to investigate the basis of, the subordinate's decisions does not serve § 1983's purposes where (as here) the wrongfulness of those decisions arises from a retaliatory motive or other unstated rationale. Pp. 485 U. S. 122-131.JUSTICE BRENNAN, joined by JUSTICE MARSHALL and JUSTICE BLACKMUN, agreed that respondent's supervisor at his first agency did not possess delegated authority to establish final employment policy such that petitioner could be held liable under § 1983 for the allegedly unlawful decision to transfer respondent to a dead-end job, but concluded that, in any case in which the policymaking authority of a municipal tortfeasor is in doubt, although state law will naturally be the appropriate starting point, ultimately the factfinder must determine where such policymaking authority actually resides, and not simply where the applicable state law purports to put it. JUSTICE BRENNAN also concluded that the "custom or usage" doctrine cannot compensate for the inherent inflexibility of an approach that relies exclusively on state law, for that doctrine simply does not apply to isolated unconstitutional acts by subordinates having de facto, but not statutory, final policymaking authority; that a subordinate's decisions are not rendered nonfinal simply because they are subject to some form of review, however limited; and that the question is open whether a municipality can be subjected to liability for a policy that, while not unconstitutional in and of itself, may give rise to constitutional deprivations. Pp. 485 U. S. 132-147.O'CONNOR, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL and BLACKMUN, JJ., joined U.S. 485 U. S. 132. STEVENS, J., filed a dissenting Page 485 U. S. 114 opinion, post, p. 485 U. S. 147. KENNEDY, J., took no part in the consideration or decision of the case.

1961_464

MR. JUSTICE BLACK delivered the opinion of the Court.The Court of Appeals for the Fourth Circuit, with Chief Judge Sobeloff dissenting, refused to enforce an order of the National Labor Relations Board directing the respondent Washington Aluminum Company to reinstate and make whole seven employees whom the company had discharged for leaving their work in the machine shop without permission on claims that the shop was too cold to work in. [Footnote 1] Because that decision raises important questions affecting the proper administration of the National Labor Relations Act, [Footnote 2] we granted certiorari. [Footnote 3]The Board's order, as shown by the record and its findings, rested upon these facts and circumstances. The respondent company is engaged in the fabrication of aluminum products in Baltimore, Maryland, a business having interstate aspects that subject it to regulation under the National Labor Relations Act. The machine shop in which the seven discharged employees worked was not insulated, and had a number of doors to the outside that had to be opened frequently. An oil furnace located in an adjoining building was the chief source of heat for the shop, although there were two gas-fired space heaters that contributed heat to a lesser extent. The heat produced Page 370 U. S. 11 by these units was not always satisfactory, and, even prior to the day of the walkout involved here, several of the eight machinists who made up the day shift at the shop had complained from time to time to the company's foreman "over the cold working conditions." [Footnote 4]January 5, 1959, was an extraordinarily cold day for Baltimore, with unusually high winds and a low temperature of 11 degrees followed by a high of 22. When the employees on the day shift came to work that morning, they found the shop bitterly cold, due not only to the unusually harsh weather, but also to the fact that the large oil furnace had broken down the night before, and had not as yet been put back into operation. As the workers gathered in the shop just before the starting hour of 7:30, one of them, a Mr. Caron, went into the office of Mr. Jarvis, the foreman, hoping to warm himself but, instead, found the foreman's quarters as uncomfortable as the rest of the shop. As Caron and Jarvis sat in Jarvis' office discussing how bitingly cold the building was, some of the other machinists walked by the office window "huddled" together in a fashion that caused Jarvis to exclaim that "[i]f those fellows had any guts at all, they would go home." When the starting buzzer sounded a few moments later, Caron walked back to his working place in the shop and found all the other machinists "huddled there, shaking a little, cold." Caron then said to these workers, " . . . Dave [Jarvis] told me if we had any guts, we would go home. . . . I am going home, it is too damned cold to work." Caron asked the other Page 370 U. S. 12 workers what they were going to do, and, after some discussion among themselves, they decided to leave with him. One of these workers, testifying before the Board, summarized their entire discussion this way: "And we had all got together and thought it would be a good idea to go home; maybe we could get some heat brought into the plant that way." [Footnote 5] As they started to leave, Jarvis approached and persuaded one of the workers to remain at the job. But Caron and the other six workers on the day shift left practically in a body in a matter of minutes after the 7:30 buzzer.When the company's general foreman arrived between 7:45 and 8 that morning, Jarvis promptly informed him that all but one of the employees had left because the shop was too cold. The company's president came in at approximately 8:20 a.m. and, upon learning of the walkout, immediately said to the foreman, " . . . if they have all gone, we are going to terminate them." After discussion "at great length" between the general foreman and the company president as to what might be the effect of the walkout on employee discipline and plant production, the president formalized his discharge of the workers who had walked out by giving orders at 9 a.m. that the affected workers should be notified about their discharge immediately, either by telephone, telegram or personally. This was done.On these facts, the Board found that the conduct of the workers was a concerted activity to protest the company's failure to supply adequate heat in its machine shop, that such conduct is protected under the provision of § 7 of the National Labor Relations Act, which guarantees that "Employees shall have the right . . . to engage in . . . concerted activities for the purpose of collective Page 370 U. S. 13 bargaining or other mutual aid or protection," [Footnote 6] and that the discharge of these workers by the company amounted to an unfair labor practice under § 8(a)(1) of the Act, which forbids employers "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." [Footnote 7] Acting under the authority of § 10(c) of the Act, which provides that, when an employer has been guilty of an unfair labor practice, the Board can "take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act," [Footnote 8] the Board then ordered the company to reinstate the discharged workers to their previous positions and to make them whole for losses resulting from what the Board found to have been the unlawful termination of their employment.In denying enforcement of this order, the majority of the Court of Appeals took the position that, because the workers simply "summarily left their place of employment" without affording the company an "opportunity to avoid the work stoppage by granting a concession to a demand," their walkout did not amount to a concerted activity protected by § 7 of the Act. [Footnote 9] On this basis, they Page 370 U. S. 14 held that there was no justification for the conduct of the workers in violating the established rules of the plant by leaving their jobs without permission, and that the Board had therefore exceeded its power in issuing the order involved here because § 10(c) declares that the Board shall not require reinstatement or back pay for an employee whom an employer has suspended or discharged "for cause." [Footnote 10]We cannot agree that employees necessarily lose their right to engage in concerted activities under § 7 merely because they do not present a specific demand upon their employer to remedy a condition they find objectionable. The language of § 7 is broad enough to protect concerted activities whether they take place before, after, or at the same time such a demand is made. To compel the Board to interpret and apply that language in the restricted fashion suggested by the respondent here would only tend to frustrate the policy of the Act to protect the right of workers to act together to better their working conditions. Indeed, as indicated by this very case, such an interpretation of § 7 might place burdens upon employees so great that it would effectively nullify the right to engage in concerted activities which that section protects. The seven employees here were part of a small group of employees who were wholly unorganized. They had no bargaining representative and, in fact, no representative of any kind to present their grievances to their employer. Under these circumstances, they had to speak for themselves as best they could. As pointed out above, prior to the day they left the shop, several of them had repeatedly complained to company officials about the cold working Page 370 U. S. 15 conditions in the shop. These had been more or less spontaneous individual pleas, unsupported by any threat of concerted protest, to which the company apparently gave little consideration and which it now says the Board should have treated as nothing more than "the same sort of gripes as the gripes made about the heat in the summertime." The bitter cold of January 5, however, finally brought these workers' individual complaints into concert so that some more effective action could be considered. Having no bargaining representative and no established procedure by which they could take full advantage of their unanimity of opinion in negotiations with the company, the men took the most direct course to let the company know that they wanted a warmer place in which to work. So, after talking among themselves, they walked out together in the hope that this action might spotlight their complaint and bring about some improvement in what they considered to be the "miserable" conditions of their employment. This we think was enough to justify the Board's holding that they were not required to make any more specific demand than they did to be entitled to the protection of § 7.Although the company contends to the contrary, we think that the walkout involved here did grow out of a "labor dispute" within the plain meaning of the definition of that term in § 2(9) of the Act, which declares that it includes "any controversy concerning terms, tenure or conditions of employment. . . ." [Footnote 11] The findings of the Board, which are supported by substantial evidence and which were not disturbed below, show a running dispute between the machine shop employees and the company over the heating of the shop of cold days -- a dispute which culminated in the decision of the Page 370 U. S. 16 employees to act concertedly in an effort to force the company to improve that condition of their employment. The fact that the company was already making every effort to repair the furnace and bring heat into the shop that morning does not change the nature of the controversy that caused the walkout. At the very most, that fact might tend to indicate that the conduct of the men in leaving was unnecessary and unwise, and it has long been settled that the reasonableness of workers' decisions to engage in concerted activity is irrelevant to the determination of whether a labor dispute exists or not. [Footnote 12] Moreover, the evidence here shows that the conduct of these workers was far from unjustified under the circumstances. The company's own foreman expressed the opinion that the shop was so cold that the men should go home. This statement by the foreman but emphasizes the obvious -- that is, that the conditions of coldness about which complaint had been made before had been so aggravated on the day of the walkout that the concerted action of the men in leaving their jobs seemed like a perfectly natural and reasonable thing to do.Nor can we accept the company's contention that, because it admittedly had an established plant rule which forbade employees to leave their work without permission of the foreman, there was justifiable "cause" for discharging these employees, wholly separate and apart from any concerted activities in which they engaged in protest against the poorly heated plant. Section 10(c) of the Act does authorize an employer to discharge employees for "cause," and our cases have long recognized this right Page 370 U. S. 17 on the part of an employer. [Footnote 13] But this, of course, cannot mean that an employer is at liberty to punish a man by discharging him for engaging in concerted activities which § 7 of the Act protects. And the plant rule in question here purports to permit the company to do just that, for it would prohibit even the most plainly protected kinds of concerted work stoppages until and unless the permission of the company's foreman was obtained.It is, of course, true that § 7 does not protect all concerted activities, but that aspect of the section is not involved in this case. The activities engaged in here do not fall within the normal categories of unprotected concerted activities such as those that are unlawful, [Footnote 14] violent, [Footnote 15] or in breach of contract. [Footnote 16] Nor can they be brought under this Court's more recent pronouncement which denied the protection of § 7 to activities characterized as "indefensible" because they were there found to show a disloyalty to the workers' employer which this Court deemed unnecessary to carry on the workers' legitimate concerted activities. [Footnote 17] The activities of these seven employees cannot be classified as "indefensible" by any recognized standard of conduct. Indeed, concerted activities by employees for the purpose of trying to protect themselves from working conditions as uncomfortable as the testimony and Board findings showed them to be in this case are unquestionably activities to correct conditions which modern labor-management legislation treats as too bad to have to be tolerated in a humane and civilized society like ours. Page 370 U. S. 18We hold therefore that the Board correctly interpreted and applied the Act to the circumstances of this case and it was error for the Court of Appeals to refuse to enforce its order. The judgment of the Court of Appeals is reversed, and the cause is remanded to that court with directions to enforce the order in its entirety.Reversed

U.S. Supreme CourtLabor Board v. Washington Aluminum Co., 370 U.S. 9 (1962)National Labor Relations Board v. Washington Aluminum Co.No. 464Argued April 10, 1962Decided May 28, 1962370 U.S. 9SyllabusRespondent is a manufacturer subject to the National Labor Relations Act. After several of the eight nonunion employees in its machine shop had complained individually about the coldness of the shop during the winter, seven of them walked out together on an extraordinarily cold day, saying that it was "too cold to work." Respondent discharged them for violating a rule forbidding any employee to leave without permission of the foreman. The National Labor Relations Board found that they had acted in concert in protest against respondent's failure to provide adequate heat in their place of work, and that their discharge violated § 8(a)(1) of the Act by interfering with their right under § 7 to act in concert for mutual aid or protection, and it ordered respondent to reinstate them with back pay.Held: the Board correctly interpreted and applied the Act to the circumstances of this case, and the Court of Appeals should have enforced its order. Pp. 370 U. S. 10-18.(a) These employees did not lose their right under § 7 to engage in concerted activities merely because they did not present a specific demand upon their employer to remedy a condition they found objectionable. Pp. 370 U. S. 14-15.(b) The walkout involved here grew out of a "labor dispute" within the meaning of § 2(a) of the Act. Pp. 370 U. S. 15-16.(c) The fact that respondent had an established rule forbidding employees to leave their work without permission of the foreman was not justifiable "cause" for their discharge within the meaning of § 10(c). Pp. 370 U. S. 16-17.291 F.2d 869 reversed. Page 370 U. S. 10

1957_549

MR. JUSTICE HARLAN delivered the opinion of the Court.Petitioner was convicted of the unlawful purchase of narcotics, see 26 U.S.C. (Supp. V) § 4704, after a trial without a jury before the Federal District Court for the Southern District of Texas. A divided Court of Appeals affirmed. 241 F.2d 575. We granted certiorari to consider petitioner's challenge to the legality of his arrest and the admissibility in evidence of the narcotics seized from his person at the time of the arrest. 355 U.S. 811.Agent Finley of the Federal Bureau of Narcotics obtained a warrant for the arrest of petitioner from the United States Commissioner in Houston, Texas, on January 26, 1956. This warrant, issued under Rules 3 and 4 of the Federal Rules of Criminal Procedure (see note 3 infra), was based on a written complaint, sworn to by Finley, which read in part:"The undersigned complainant [Finley] being duly sworn states: That on or about January 26, 1956, at Houston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code.""And the complainant further states that he believes that ______ _______ are material witnesses in relation to this charge."About 6 o'clock in the afternoon of the following day, January 27, Finley saw petitioner drive up to his residence in a car and enter the house. He emerged shortly Page 357 U. S. 482 thereafter and drove away in the same car, closely followed in a second car by a person described by Finley as a "well-known police character." Finley pursued the cars until they stopped near another residence which was entered by petitioner. When petitioner left this residence, carrying a brown paper bag in his hand, and proceeded towards his car, Finley executed the arrest warrant and seized the bag, which proved to contain a mixture of heroin and other substances. Although warned of his privilege to remain silent, petitioner promptly admitted purchasing the heroin in Chicago and transporting it to Houston.On January 28, petitioner appeared with counsel before a United States Commissioner. He waived the preliminary examination contemplated by Rule 5 of the Rules of Criminal Procedure, see p. 357 U. S. 483, infra, and was arraigned on the complaint upon which the arrest warrant had been issued on January 26. [Footnote 1] Prior to trial, petitioner, alleging for the first time that his arrest and the coincident seizure from his person of the paper bag were illegal, moved to suppress for use as evidence the heroin found in the bag. This motion was denied by the District Court, and petitioner's conviction and its affirmance by the Court of Appeals followed.In this Court, petitioner argues, as he did below, that Finley's seizure of the heroin was unlawful, since the warrant of arrest was illegal and the seizure could be justified only as incident to a legal arrest, and that, consequently, the admission of the heroin into evidence was Page 357 U. S. 483 error which requires that his conviction be set aside. The Government contends that petitioner waived his right to challenge the legality of his arrest, and hence to object to the admissibility of this evidence, by failing to question the sufficiency of the warrant at the time he was brought before the United States Commissioner. It further asserts that the arrest warrant satisfied the Federal Rules of Criminal Procedure, and, alternatively, that the arrest can be sustained apart from the warrant because Finley had probable cause to believe that petitioner had committed a felony. The Government recognizes that, since Finley had no search warrant, the heroin was admissible in evidence only if its seizure was incident to a lawful arrest, see United States v. Rabinowitz, 339 U. S. 56, 339 U. S. 60, and that, if the arrest was illegal, the admission of this evidence was reversible error.IWe think it clear that petitioner, by waiving preliminary examination before the United States Commissioner, did not surrender his right subsequently to contest in court the validity of the warrant on the grounds here asserted. A claim of this nature may involve legal issues of subtlety and complexity which it would be unfair to require a defendant to present so soon after arrest, and in many instances, as here, before his final selection of counsel.In addition, examination of the purpose of the preliminary examination before a Commissioner makes evident the unsoundness of the Government's position. Rule 5(c) of the Federal Rules of Criminal Procedure provides in part:"If, from the evidence, it appears to the commissioner that there is probable cause to believe that an offense has been committed and that the defendant Page 357 U. S. 484 has committed, it, the commissioner shall forthwith hold him to answer in the district court; otherwise the commissioner shall discharge him."By waiving preliminary examination, a defendant waives no more than the right which this examination was intended to secure him -- the right not to be held in the absence of a finding by the Commissioner of probable cause that he has committed an offense.By the same token, the Commissioner here had no authority to adjudicate the admissibility at petitioner's later trial of the heroin taken from his person. That issue was for the trial court. This is specifically recognized by Rule 41(e) of the Criminal Rules, which provides that a defendant aggrieved by an unlawful search and seizure may ". . . move the district court . . . to suppress for use as evidence anything so obtained on the ground that . . ." the arrest warrant was defective on any of several grounds. This was the procedural path followed by petitioner, and we hold it proper to put in issue the legality of the warrant. Cf. Albrecht v. United States, 273 U. S. 1, 273 U. S. 9-11.IIPetitioner challenges the sufficiency of the warrant on two grounds: (1) that the complaint on which the warrant was issued was inadequate because the complaining officer, Finley, relied exclusively upon hearsay information, rather than personal knowledge in executing the complaint; and (2) that the complaint was, in any event, defective in that it, in effect, recited no more than the elements of the crime charged, namely the concealment of heroin with knowledge of its illegal importation in violation of 21 U.S.C. § 174. [Footnote 2] Page 357 U. S. 485It appears from Finley's testimony at the hearing on the suppression motion that until the warrant was issued on January 26 his suspicions of petitioner's guilt derived entirely from information given him by law enforcement officers and other persons in Houston, none of whom either appeared before the Commissioner or submitted affidavits. But we need not decide whether a warrant may be issued solely on hearsay information, for in any event we find this complaint defective in not providing a sufficient basis upon which a finding of probable cause could be made.Criminal Rules 3 and 4 provide that an arrest warrant shall be issued only upon a written and sworn complaint (1) setting forth "the essential facts constituting the offense charged," and (2) showing "that there is probable cause to believe that [such] an offense has been committed and that the defendant has committed it. . . ." [Footnote 3] The provisions of these Rules must be read in light of the constitutional requirements they implement. The language of the Fourth Amendment, that". . . no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing . . . the persons or things to be seized . . . ,"of course applies to Page 357 U. S. 486 arrest as well as search warrants. See Ex parte Burford, 3 Cranch 448; McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 154-157. The protection afforded by these Rules, when they are viewed against their constitutional background, is that the inferences from the facts which lead to the complaint". . . be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."Johnson v. United States, 333 U. S. 10, 333 U. S. 14. The purpose of the complaint, then, is to enable the appropriate magistrate, here a Commissioner, to determine whether the "probable cause" required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime.When the complaint in this case is judged with these considerations in mind, it is clear that it does not pass muster, because it does not provide any basis for the Commissioner's determination under Rule 4 that probable cause existed. The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made. We think these deficiencies could not be cured by the Commissioner's reliance upon a presumption that the complaint was made on the personal knowledge of the complaining officer. The insubstantiality of such an argument is illustrated by the facts of this very case, for Finley's testimony at the suppression hearing clearly showed that he had no personal knowledge of the matters on which his charge was based. In these circumstances, it is difficult to understand how the Commissioner could be expected Page 357 U. S. 487 to assess independently the probability that petitioner committed the crime charged. Indeed, if this complaint were upheld, the substantive requirements would be completely read out of Rule 4, and the complaint would be of only formal significance, entitled to perfunctory approval by the Commissioner. This would not comport with the protective purposes which a complaint is designed to achieve.It does not avail the Government to argue that, because a warrant of arrest may be issued as of course upon an indictment, this complaint was adequate, since its allegations would suffice for an indictment under Federal Rule of Criminal Procedure 7(c). A warrant of arrest can be based upon an indictment because the grand jury's determination that probable cause existed for the indictment also establishes that element for the purpose of issuing a warrant for the apprehension of the person so charged. Here, in the absence of an indictment, the issue of probable cause had to be determined by the Commissioner, and an adequate basis for such a finding had to appear on the face of the complaint.IIIIn the two lower courts, the Government defended the legality of petitioner's arrest by relying entirely on the validity of the warrant. [Footnote 4] In this Court, however, its principal contention has been that the arrest was justified apart from the warrant. The argument is that Texas law permits arrest without a warrant upon probable cause that the person arrested has committed a felony; that, in the absence of a controlling federal statute, as in the case Page 357 U. S. 488 here, federal officers turn to the law of the State where an arrest is made as the source of their authority to arrest without a warrant, cf. United States v. Di Re, 332 U. S. 581, 332 U. S. 589; Johnson v. United States, supra, at 333 U. S. 15; and that Finley, on the basis of the facts he testified to before the District Court, must be deemed, within the standards of Texas law, to have had the probable cause necessary to arrest petitioner without a warrant.We do not think that these belated contentions are open to the Government in this Court, and, accordingly, we have no occasion to consider their soundness. To permit the Government to inject its new theory into the case at this stage would unfairly deprive petitioner of an adequate opportunity to respond. This is so because in the District Court petitioner, being entitled to assume that the warrant constituted the only purported justification for the arrest, had no reason to cross-examine Finley or to adduce evidence of his own to rebut the contentions that the Government makes here for the first time.Nor do we think that it would be sound judicial administration to send the case back to the District Court for a special hearing on the issue of probable cause which would determine whether the verdict of guilty and the judgment already entered should be allowed to stand. The facts on which the Government now relies to uphold the arrest were fully known to it at the time of trial, and there are no special circumstances suggesting such an exceptional course. Cf. United States v. Shotwell Mfg. Co., 355 U. S. 233. This is not to say, however, that, in the event of a new trial, the Government may not seek to justify petitioner's arrest without relying on the warrant.We hold that the seizure in this case was illegal, that the seized narcotics should therefore not have been admitted into evidence, and that petitioner's conviction accordingly must be set aside. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtGiordenello v. United States, 357 U.S. 480 (1958)Giordenello v. United StatesNo. 549Argued May 21, 1958Decided June 30, 1958357 U.S. 480SyllabusWith no indictment and on his own complaint, a federal officer obtained a warrant for petitioner's arrest, but obtained no search warrant. His complaint was not based on his personal knowledge, did not indicate the source of his belief that petitioner had committed a crime, and set forth no other sufficient basis for a finding of probable cause. With this warrant, he arrested petitioner and seized narcotics in his possession. The arrest and seizure were not challenged at petitioner's arraignment, but a motion to suppress the use of the narcotics in evidence was made and denied before his trial. They were admitted in evidence at his trial in a federal district court, and he was convicted.Held: The arrest and seizure were illegal, the narcotics should not have been admitted in evidence, and petitioner's conviction must be set aside. Pp. 357 U. S. 481-488.1. By waiving preliminary examination before the Commissioner, petitioner did not surrender his right to contest in court the validity of the warrant on the grounds here asserted. Pp. 357 U. S. 483-484.2. Under Rules 3 and 4 of the Federal Rules of Criminal Procedure, read in the light of the Fourth Amendment, probable cause was not shown by the complaint, and the warrant for arrest was issued illegally. Pp. 357 U. S. 484-487.3. Having relied entirely in the courts below on the validity of the warrant, the Government cannot contend in this Court that the arrest was justified apart from the warrant, because the arresting officer had probable cause to believe that petitioner had committed a felony; nor should the case be sent back to the District Court for a special hearing on the issue of probable cause. Pp. 487-488.241 F.2d 575 reversed. Page 357 U. S. 481

1987_86-1042

JUSTICE BRENNAN delivered the opinion of the Court.The city of Lakewood, a suburban community bordering Cleveland, Ohio, appeals a judgment of the Court of Appeals Page 486 U. S. 753 for the Sixth Circuit enjoining enforcement of its local ordinance regulating the placement of newsracks. The court's decision was based in part on its conclusion that the ordinance vests the Mayor with unbridled discretion over which publishers may place newsracks on public property and where.IPrior to 1983, the city of Lakewood absolutely prohibited the private placement of any structure on public property. On the strength of that law, the city denied the Plain Dealer Publishing Company (Newspaper) permission to place its coin-operated newspaper dispensing devices on city sidewalks. In response, the Newspaper brought suit in the District Court for the Northern District of Ohio challenging the ordinance. The District Court adjudged the absolute prohibition unconstitutional, but delayed entering a permanent injunction to give the city time to amend its law.Although the city could have appealed the District Court's judgment, it decided instead to adopt two ordinances permitting the placement of structures on city property under certain conditions. One of those ordinances specifically concerns newsracks. § 901.181, Codified Ordinances, City of Lakewood (1984). [Footnote 1] That ordinance gives the Mayor the authority to grant or deny applications for annual newsrack permits. If the Mayor denies an application, he is required to "stat[e] the reasons for such denial." In the event the Mayor grants an application, the city issues an annual permit subject to several terms and conditions. Among them are: (1) approval of the newsrack design by the city's Architectural Board of Review; (2) an agreement by the newsrack owner to indemnify the city against any liability arising from the newsrack, guaranteed by a $100,000 insurance policy to Page 486 U. S. 754 that effect; and (3) any "other terms and conditions deemed necessary and reasonable by the Mayor." [Footnote 2]Dissatisfied with the new ordinance, the Newspaper elected not to seek a permit, and instead amended its complaint in the District Court to challenge facially the law as amended. The District Court found the ordinance constitutional in its entirety, and entered judgment in the city's favor. Page 486 U. S. 755 The Court of Appeals for the Sixth Circuit reversed, finding the ordinance unconstitutional in three respects. First, it held that the ordinance gives the Mayor unbounded discretion to grant or deny a permit application and to place unlimited additional terms and conditions on any permit that issues. Second, it concluded that, in the absence of any express standards governing newsrack design, the design approval requirement effectively gives the Board unbridled discretion to deny applications. Finally, a majority of the panel decided that the indemnity and insurance requirements for newsrack owners violate the First Amendment because no similar burdens are placed on owners of other structures on public property. [Footnote 3] The court found that the foregoing provisions of the law were not severable, and therefore held the entire ordinance unconstitutional insofar as it regulates newsracks in commercial districts. [Footnote 4] The city appealed, and we noted probable jurisdiction. 480 U.S. 904 (1987).IIAt the outset, we confront the issue whether the Newspaper may bring a facial challenge to the city's ordinance. We conclude that it may.ARecognizing the explicit protection accorded speech and the press in the text of the First Amendment, our cases have long held that, when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, Page 486 U. S. 756 and being denied, a license. [Footnote 5] E.g., Freedman v. Maryland, 380 U. S. 51, 380 U. S. 56 (1965) ("In the area of freedom of expression, it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license") (emphasis added); Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97 (1940) (in the First Amendment context, "[o]ne who might have had a license for the asking may . . . call into question the whole scheme of licensing when he is prosecuted for failure to procure it"). See also Shuttlesworth v. Birmingham, 394 U. S. 147, 394 U. S. 151 (1969) ("The Constitution can hardly be thought to deny to one subjected to the restraints of [a licensing law] the right to attack its constitutionality, because he has not yielded to its demands'" (quoting Jones v. Opelika, 316 U. S. 584, 316 U. S. 602 (1942) (Stone, C.J., dissenting), adopted per curiam on rehearing, 319 U. S. 103, 319 U. S. 104 (1943))); Lovell v. Griffin, 303 U. S. 444, 303 U. S. 452-453 (1938) ("As the ordinance [providing for unbridled licensing discretion] is void on its face, it was not necessary for appellant to seek a permit under it"); cf. Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 467 U. S. 956-957 (1984). [Footnote 6] Page 486 U. S. 757At the root of this long line of precedent is the time-tested knowledge that, in the area of free expression, a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship. E.g., Shuttlesworth, supra, at 349 U. S. 151; Cox v. Louisiana, 379 U. S. 536 (1965); Staub v. City of Baxley, 355 U. S. 313, 355 U. S. 321-322 (1958); Kunz v. New York, 340 U. S. 290, 340 U. S. 294 (1951); Niemotko v. Maryland, 340 U. S. 268 (1951); Saia v. New York, 334 U. S. 558 (1948). And these evils engender identifiable risks to free expression that can be effectively alleviated only through a facial challenge. First, the mere existence of the licensor's unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused. As we said in Thornhill:"Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas. . . . The power of the licensor against which John Milton directed his assault by his 'Appeal for the Liberty of Unlicensed Printing' is pernicious not merely by reason of the censure of particular comments, but by the reason of the threat to censure comments on matters of public concern. It is not merely the sporadic abuse of power by the censor, but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion."310 U.S. at 310 U. S. 97 (emphases added). See also Freedman, supra. Self-censorship is immune to an "as applied" challenge, for it derives from the individual's own actions, not an abuse of government power. It is not difficult to visualize a newspaper that relies to a substantial degree on single issue sales feeling significant pressure to endorse the incumbent Mayor in an upcoming election, or to refrain Page 486 U. S. 758 from criticizing him, in order to receive a favorable and speedy disposition on its permit application. Only standards limiting the licensor's discretion will eliminate this danger by adding an element of certainty fatal to self-censorship. Cf. Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 455 U. S. 498 (1982) (vagueness doctrine). And only a facial challenge can effectively test the statute for these standards.Second, the absence of express standards makes it difficult to distinguish, "as applied," between a licensor's legitimate denial of a permit and its illegitimate abuse of censorial power. Standards provide the guideposts that check the licensor and allow courts quickly and easily to determine whether the licensor is discriminating against disfavored speech. Without these guideposts, post hoc rationalizations by the licensing official and the use of shifting or illegitimate criteria are far too easy, making it difficult for courts to determine in any particular case whether the licensor is permitting favorable, and suppressing unfavorable, expression. See, e.g., Joseph H. Munson Co., supra, at 467 U. S. 964, n. 12; Cox v. Louisiana, supra, at 379 U. S. 557. Further, the difficulty and delay inherent in the "as applied" challenge can itself discourage litigation. A newspaper espousing an unpopular viewpoint on a shoestring budget may be the likely target for a retaliatory permit denial, but may not have the time or financial means to challenge the licensor's action. That paper might instead find it easier to capitulate to what it perceives to be the Mayor's preferred viewpoint, or simply to close up shop. Even if that struggling paper were willing and able to litigate the case successfully, the eventual relief may be "too little and too late." Until a judicial decree to the contrary, the licensor's prohibition stands. In the interim, opportunities for speech are irretrievably lost. Freedman, 380 U.S. at 380 U. S. 57; see also Saia, supra, at 334 U. S. 560; Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 306 (1940). In sum, without standards to fetter the licensor's discretion, the difficulties of proof and the Page 486 U. S. 759 case-by-case nature of "as applied" challenges render the licensor's action in large measure effectively unreviewable.BThe foregoing concepts form the heart of our test to distinguish laws that are vulnerable to facial challenge from those that are not. As discussed above, we have previously identified two major First Amendment risks associated with unbridled licensing schemes: self-censorship by speakers in order to avoid being denied a license to speak, and the difficulty of effectively detecting, reviewing, and correcting content-based censorship "as applied" without standards by which to measure the licensor's action. It is when statutes threaten these risks to a significant degree that courts must entertain an immediate facial attack on the law. Therefore, a facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers. This is not to say that the press or a speaker may challenge as censorship any law involving discretion to which it is subject. The law must have a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat of the identified censorship risks.The regulatory scheme in the present case contains two features which, at least in combination, justify the allowance of a facial challenge. First, Lakewood's ordinance requires that the Newspaper apply annually for newsrack licenses. Thus, it is the sort of system in which an individual must apply for multiple licenses over time, or periodically renew a license. When such a system is applied to speech, or to conduct commonly associated with speech, the licensor does not necessarily view the text of the words about to be spoken, but can measure their probable content or viewpoint by speech already uttered. See Saia v. New York, supra. A speaker in this position is under no illusion regarding the Page 486 U. S. 760 effect of the "licensed" speech on the ability to continue speaking in the future. Yet demonstrating the link between "licensed" expression and the denial of a later license might well prove impossible. While perhaps not as direct a threat to speech as a regulation allowing a licensor to view the actual content of the speech to be licensed or permitted, see Freedman, supra; Cox v. Louisiana, 379 U. S. 536 (1965); Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963), a multiple or periodic licensing requirement is sufficiently threatening to invite judicial concern.A second feature of the licensing system at issue here is that it is directed narrowly and specifically at expression or conduct commonly Page 486 U. S. 761 associated with expression: the circulation of newspapers. Such a framework creates an agency or establishes an official charged particularly with reviewing speech, or conduct commonly associated with it, breeding an "expertise" tending to favor censorship over speech. Freedman, supra. Indeed, a law requiring the licensing of printers has historically been declared the archetypal censorship statute. See 4 W. Blackstone, Commentaries *152. Here again, without standards to bound the licensor, speakers denied a license will have no way of proving that the decision was unconstitutionally motivated, and, faced with that prospect, they will be pressured to conform their speech to the licensor's unreviewable preference.Because of these features in the regulatory system at issue here, we think that a facial challenge is appropriate, and that standards controlling the Mayor's discretion must be required. Of course, the city may require periodic licensing, and may even have special licensing procedures for conduct commonly associated with expression; but the Constitution requires that the city establish neutral criteria to insure that the licensing decision is not based on the content or viewpoint of the speech being considered.In contrast to the type of law at issue in this case, laws of general application that are not aimed at conduct commonly associated with expression and do not permit licensing determinations to be made on the basis of ongoing expression or the words about to be spoken, carry with them little danger of censorship. For example, a law requiring building permits is rarely effective as a means of censorship. To be sure, on rare occasion, an opportunity for censorship will exist, such as when an unpopular newspaper seeks to build a new plant. But such laws provide too blunt a censorship instrument to warrant judicial intervention prior to an allegation of actual misuse. And if such charges are made, the general application of the statute to areas unrelated to expression will provide the courts a yardstick with which to measure the licensor's occasional speech-related decision.The foregoing discussion explains why the dissent's analogy between newspapers and soda vendors is inapposite. See post at 486 U. S. 788-789. Newspapers are in the business of expression, while soda vendors are in the business of selling soft drinks. Even if the soda vendor engages in speech, that speech is not related to the soda; therefore preventing it from installing its machines may penalize unrelated speech, but will not directly prevent that speech from occurring. In sum, a law giving the Mayor unbridled discretion to decide which soda vendors may place their machines on public property does not vest him with frequent opportunities to exercise substantial power over the content or viewpoint of the vendor's speech by suppressing the speech or directly controlling the vendor's ability to speak.The proper analogy is between newspapers and leaflets. It is settled that leafletters may facially challenge licensing laws. See e.g., Talley v. California, 362 U. S. 60 (1960); Lovell v. Griffin, 303 U. S. 444 (1938). This settled law is based on the accurate premise that peaceful pamphleteering "is not fundamentally different from the function of a newspaper." Organization for a Better Austin v. Keefe, 402 U. S. 415, 402 U. S. 419 (1971); see also Lovell, supra, at 303 U. S. 450-452. The dissent's theory therefore would turn the law on its head. That Page 486 U. S. 762 result cannot be justified by relying on the meaningless distinction that, here, the newspapers are ultimately distributed by a machine, rather than by hand. First, the ordinance held invalid in Lovell applied to distribution "by hand or otherwise." 303 U.S. at 303 U. S. 447. The Court did not even consider holding the law invalid only as to distribution by hand. Second, such a distinction makes no sense in logic or theory. The effectiveness of the newsrack as a means of distribution, especially for low-budget, controversial neighborhood newspapers, means that the twin threats of self-censorship and undetectable censorship are, if anything, greater for newsracks than for pamphleteers. Cf. Schneider v. State, 308 U. S. 147, 308 U. S. 164 (1939) (relying on the effectiveness of pamphleteering); Martin v. Struthers, 319 U. S. 141, 319 U. S. 145-146 (1943) (same).CIn an analysis divorced from a careful examination of the unique risks associated with censorship just discussed and their relation to the law before us, the dissent reasons that, if a particular manner of speech may be prohibited entirely, then no "activity protected by the First Amendment" can be implicated by a law imposing less than a total prohibition. It then finds that a total ban on newsracks would be constitutional. Therefore, the dissent concludes, the actual ordinance at issue involves no "activity protected by the First Amendment," and thus is not subject to facial challenge. However, that reasoning is little more than a legal sleight-of-hand, misdirecting the focus of the inquiry from a law allegedly vesting unbridled censorship discretion in a government official toward one imposing a blanket prohibition. [Footnote 7]The key to the dissent's analysis is its "greater-includes-the-lesser" syllogism. But that syllogism is blind to the radically Page 486 U. S. 763 different constitutional harms inherent in the "greater" and "lesser" restrictions. [Footnote 8] Presumably, in the case of an ordinance that completely prohibits a particular manner of expression, the law on its face is both content and viewpoint neutral. In analyzing such a hypothetical ordinance, the Court would apply the well settled time, place, and manner test. E.g., Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U. S. 530, 447 U. S. 535 (1980); Police Department of Chicago v. Mosley, 408 U. S. 92 (1972). The danger giving rise to the First Amendment inquiry is that the government is silencing or restraining a channel of speech; we ask whether some interest unrelated to speech justifies this silence. To put it another way, the question is whether "the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." Grayned v. Rockford, 408 U. S. 104, 408 U. S. 116 (1972).In contrast, a law or policy permitting communication in a certain manner for some, but not for others, raises the specter of content and viewpoint censorship. This danger is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official. As demonstrated above, we have often and uniformly held that such statutes or policies impose censorship on the public or the press, and hence are unconstitutional, because, without standards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the content of the speech or viewpoint of Page 486 U. S. 764 the speaker. E.g., Cox v. Louisiana, 379 U.S. at 379 U. S. 557; Staub, 355 U.S. at 355 U. S. 322. Therefore, even if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license or permit from a government official in that official's boundless discretion. It bears repeating that,"[i]n the area of freedom of expression, it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license."Freedman, 380 U.S. at 380 U. S. 56. Fundamentally, then, the dissent's proposal ignores the different concerns animating our test to determine whether an expressive activity may be banned entirely, and our test to determine whether it may be licensed in an official's unbridled discretion.This point is aptly illustrated by a comparison of two of our prior cases: Saia v. New York, 334 U. S. 558 (1948), and Kovacs v. Cooper, 336 U. S. 77 (1949). In Saia, this Court held that an ordinance prohibiting the use of sound trucks without permission from the Chief of Police was unconstitutional because the licensing official was able to exercise unbridled discretion in his decisionmaking, and therefore could, in a calculated manner, censor certain viewpoints. Just seven months later, the Court held in Kovacs that a city could absolutely ban the use of sound trucks. The plurality distinguished Saia precisely on the ground that, there, the ordinance constituted censorship by allowing some to speak, but not others; in Kovacs, the statute barred a particular manner of speech for all. 336 U.S. at 336 U. S. 80 (plurality opinion of Reed, J.). [Footnote 9] Page 486 U. S. 765Saia is irreconcilable with the logic the dissent now puts forward. Under the dissent's novel rule, the Court in Saia should first have determined whether the use of sound trucks could be prohibited completely. If so, as was held in Kovacs, the Court should have rejected the constitutional facial challenge. Page 486 U. S. 766 No "activity protected by the First Amendment" (as the dissent defines it) would have been at issue. [Footnote 10]The Kovacs/Saia comparison provides perhaps the clearest example of the flaw in the dissent's "greater-includes-the-lesser" reasoning. However, in a host of other First Amendment cases, we have expressly or implicitly rejected that logic, and have considered on the merits facial challenges to statutes or policies that embodied discrimination based on the content or viewpoint of expression, or vested officials with open-ended discretion that threatened the same, even where it was assumed that a properly drawn law could have greatly restricted or prohibited the manner of expression or circulation at issue.For instance, in Mosley we considered an ordinance banning all picketing near a school except labor picketing. The Court declared the law unconstitutional because the ordinance was sensitive to the content of the message. Whether or not the picket could have been prohibited entirely was not dispositive of the Court's inquiry. 408 U.S. at 408 U. S. 96-99. Similarly, in Flower v. United States, 407 U. S. 197 (1972), the Court summarily reversed a conviction based on Flower's return to a military facility to leaflet after having been ordered to leave once before. It was never doubted that a military commander may generally restrict access to a military facility. But, where the base was for all other purposes treated as part of the surrounding city, the Court refused to allow the commander unbridled discretion to prohibit Flower's leafletting. In Schacht v. United States, 398 U. S. 58 (1970), the Court struck down a statute permitting actors to wear a military uniform in a theater or motion picture production Page 486 U. S. 767 only "if the portrayal does not tend to discredit that armed force." The Court noted that, although a total prohibition would be valid, a prohibition sensitive to the viewpoint of speech could not stand. Niemotko provides yet another example of the Court's rejection of "greater-includes-the-lesser" logic in the First Amendment area. There, a Jehovah's Witness was convicted of disorderly conduct after speaking in a park without a license. The Court decided that, whatever power a city might have to prohibit all religious speech in its parks, it could not allow some, but not all, religious speech, depending on the exercise of unbridled discretion. 340 U.S. at 340 U. S. 272-273. Or, as Justice Frankfurter put it in his concurring opinion,"[a] licensing standard which gives an official authority to censor the content of speech differs toto coelo from one limited by its terms, or by nondiscriminatory practice, to considerations of public safety and the like."Id. at 340 U. S. 282. Cf. Widmar v. Vincent, 454 U. S. 263 (1981) (public university need not create a public forum, but, having done so, it may not restrict access so as to exclude some groups based on the religious content of their speech without constitutional justification); Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U. S. 167 (1976) (School Board need not create a public forum, but, having done so, it cannot restrict who may speak based on the content or viewpoint of the speech). To counter this unanimous line of authority, the dissent does not refer to a single case supporting its view that we cannot consider a facial challenge to an ordinance alleged to constitute censorship over constitutionally protected speech merely because the manner used to circulate that speech might be otherwise regulated or prohibited entirely.Ultimately, then, the dissent's reasoning must fall of its own weight. As the preceding discussion demonstrates, this Court has long been sensitive to the special dangers inherent in a law placing unbridled discretion directly to license speech, or conduct commonly associated with speech, in the Page 486 U. S. 768 hands of a government official. In contrast, when the government is willing to prohibit a particular manner of speech entirely -- the speech it favors along with the speech it disfavors -- the risk of governmental censorship is simply not implicated. The "greater" power of outright prohibition raises other concerns, and we have developed tests to consider them. But we see no reason, and the dissent does not advance one, to ignore censorship dangers merely because other, unrelated concerns are satisfied.The dissent compounds its error by defining an "activity protected by the First Amendment" by the time, place, or (in this case) manner by which the activity is exercised. The actual "activity" at issue here is the circulation of newspapers, which is constitutionally protected. After all,"[l]iberty of circulating is as essential to [freedom of expression] as liberty of publishing; indeed, without the circulation, the publication would be of little value."Ex parte Jackson, 96 U. S. 727, 96 U. S. 733 (1878); Lovell, 303 U.S. at 303 U. S. 452.The dissent's recharacterization of the issue is not merely semantic; substituting the time, place, or manner for the activity itself allows the dissent to define away a host of activities commonly considered to be protected. The right to demonstrate becomes the right to demonstrate at noise levels proscribed by law; the right to parade becomes the right to parade anywhere in the city 24 hours a day; and the right to circulate newspapers becomes the right to circulate newspapers by way of newsracks placed on public property. Under the dissent's analysis, ordinances giving the Mayor unbridled discretion over whether to permit loud demonstrations or evening parades would not be vulnerable to a facial challenge, since they would not "requir[e] a license to engage in activity protected by the First Amendment." Post at 486 U. S. 777. But see Grayned, 408 U.S. at 408 U. S. 113 (implying that a law banning excessively loud demonstrations was not facially invalid because its terms could not invite "subjective or discriminatory enforcement"). Page 486 U. S. 769Moreover, we have never countenanced such linguistic prestidigitation, even where a regulation or total prohibition of the "manner" of speech has been upheld. In determining whether expressive conduct is at issue in a censorship case, we do not look solely to the time, place, or manner of expression, but rather to whether the activity in question is commonly associated with expression. For example, in Kovacs, it was never doubted that the First Amendment's protection of expression was implicated by the ordinance prohibiting sound trucks. The Court simply concluded that the First Amendment was not abridged. 336 U.S. at 336 U. S. 87. See also City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 (1984). So here, the First Amendment is certainly implicated by the city's circulation restriction; the question we must resolve is whether the First Amendment is abridged.IIIHaving concluded that the Newspaper may facially challenge the Lakewood ordinance, we turn to the merits. Section 901.181, Codified Ordinances, City of Lakewood, provides:"The Mayor shall either deny the application [for a permit], stating the reasons for such denial or grant said permit subject to the following terms. . . ."Section 901.181 (c) sets out some of those terms, including: "(7) such other terms and conditions deemed necessary and reasonable by the Mayor." It is apparent that the face of the ordinance itself contains no explicit limits on the Mayor's discretion. Indeed, nothing in the law as written requires the Mayor to do more than make the statement "it is not in the public interest" when denying a permit application. Similarly, the Mayor could grant the application, but require the newsrack to be placed in an inaccessible location without providing any explanation whatever. To allow these illusory "constraints" to constitute the standards necessary to bound a licensor's discretion renders the guaranty against censorship little Page 486 U. S. 770 more than a high-sounding ideal. See Shuttlesworth, 394 U.S. at 394 U. S. 150-151.The city asks us to presume that the Mayor will deny a permit application only for reasons related to the health, safety, or welfare of Lakewood citizens, and that additional terms and conditions will be imposed only for similar reasons. This presumes the Mayor will act in good faith and adhere to standards absent from the statute's face. But this is the very presumption that the doctrine forbidding unbridled discretion disallows. E.g., Freedman v. Maryland, 380 U. S. 51 (1965). The doctrine requires that the limits the city claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well established practice. Poulos v. New Hampshire, 345 U. S. 395 (1953); Kunz v. New York, 340 U. S. 290 (1951). This Court will not write nonbinding limits into a silent statute. [Footnote 11] Page 486 U. S. 771Although the dissent disclaims a desire to pass upon the actual ordinance at issue, it apparently cannot resist making a few comments in this regard. Post at 486 U. S. 793, n. 13. First, it asserts that the ordinance's requirement that the Mayor state his reasons for denying a permit distinguishes this case from other licensing cases. However, the Mayor's statement need not be made with any degree of specificity, nor are there any limits as to what reasons he may give. Such a minimal requirement cannot provide the standards necessary to insure constitutional decisionmaking, nor will it, of necessity, provide a solid foundation for eventual judicial review.The dissent is also comforted by the availability of judicial review. However, that review comes only after the Mayor and the City Council have denied the permit. Nowhere in the ordinance is either body required to act with reasonable dispatch. Rather, an application could languish indefinitely before the Council, with the Newspaper's only judicial remedy being a petition for mandamus. Cf. Freedman, supra, at 380 U. S. 54-55, 380 U. S. 59. Even if judicial review were relatively speedy, such review cannot substitute for concrete standards to guide the decisionmaker's discretion. E.g., Saia, 334 U.S. at 334 U. S. 560, and supra at 486 U. S. 760-761.Finally, the dissent attempts to distinguish newsrack permits from parade permits, in that the latter are often given for a particular event or time, whereas the former supposedly have no urgency. This overstates the proposition. We agree that, in some cases, there is exceptional force to the argument that a permit delayed is a permit denied. However, we cannot agree that newspaper publishers can wait indefinitely for a permit only because there will always be news to report. News is not fungible. Some stories may be particularly well covered by certain publications, providing that newspaper with a unique opportunity to develop readership. In order to benefit from that event, a paper needs public Page 486 U. S. 772 access at a particular time; eventual access would come "too little and too late." Freedman, supra, at 380 U. S. 57. The Plain Dealer has been willing to forgo this benefit for four years in order to bring and litigate this lawsuit. However, smaller publications may not be willing or able to make the same sacrifice.IVWe hold those portions of the Lakewood ordinance giving the Mayor unfettered discretion to deny a permit application and unbounded authority to condition the permit on any additional terms he deems "necessary and reasonable" to be unconstitutional. We need not resolve the remaining questions presented for review, as our conclusion regarding mayoral discretion will alone sustain the Court of Appeals' judgment if these portions of the ordinance are not severable from the remainder. Severability of a local ordinance is a question of state law, and is therefore best resolved below. See Mayflower Farms, Inc. v. Ten Eyck, 297 U. S. 266, 297 U. S. 274 (1936). Accordingly, we remand this cause to the Court of Appeals to decide whether the provisions of the ordinance we have declared unconstitutional are severable, and to take further action consistent with this opinion.It is so ordered

U.S. Supreme CourtLakewood v. Plain Dealer Publ. Co., 486 U.S. 750 (1988)City of Lakewood v. Plain Dealer Publ. Co.No. 86-1042Argued November 4, 1987Decided June 17, 1988486 U.S. 750SyllabusIn federal court proceedings, appellee newspaper publisher challenged, on First Amendment grounds, the facial constitutionality of appellant city's ordinance authorizing the Mayor to grant or deny applications for annual permits to publishers to place their newsracks on public property, and, if the application is denied, requiring the Mayor to "stat[e] the reasons for such denial." If the application is granted, the ordinance provides that the permit is subject, inter alia, to any "terms and conditions deemed necessary and reasonable by the Mayor." The District Court found the ordinance constitutional in its entirety, and entered judgment for the city. The Court of Appeals reversed, finding the ordinance unconstitutional on the ground, among others, that it gave the Mayor unbounded discretion to grant or deny a permit application and to place unlimited terms and conditions on any permit that issued.Held:1. Appellee may bring a facial challenge to the ordinance without first applying for, and being denied, a permit. Pp. 486 U. S. 755-769.(a) When a licensing statute vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without first submitting to the licensing process. Such a statute constitutes a prior restraint, and may result in censorship, engendering risks to free expression that can be effectively alleviated only through a facial challenge. The mere existence of the licensor's unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused. Standards limiting the licensor's discretion provide guideposts that check the licensor and allow courts quickly and easily to determine whether the licensor is discriminating against disfavored speech. Without those standards, the difficulties of proof and the case-by-case nature of "as applied" challenges render the licensor's action in large measure effectively unreviewable. Pp. 486 U. S. 755-759.(b) The press or a speaker may not challenge as censorship every law involving discretion to which it is subject; the law must have a close enough nexus to expression, or to conduct commonly associated with expression, Page 486 U. S. 751 to pose a real and substantial threat of censorship risks. The allowance of a facial challenge here is justified by the features that (1) the ordinance requires annual permit applications, thus permitting the licensor to measure the probable content or viewpoint of future expression by speech already uttered, and (2) the ordinance is directed narrowly and specifically at expression or conduct commonly associated with expression -- the circulation of newspapers -- and creates a licensing agency that might tend to favor censorship over speech. The Constitution requires that the city establish neutral criteria to insure that the Mayor's licensing decision is not based on the content or viewpoint of the speech being considered. Pp. 486 U. S. 759-762.(c) There is no merit to the theory that the ordinance is not subject to facial challenge because the particular manner of speech (the use of newsracks) may be prohibited entirely, and thus no "First Amendment protected activity" is implicated by the ordinance's imposing less than a total prohibition, even assuming that newsracks may be prohibited entirely. Presumably in the case of a hypothetical ordinance that completely prohibits a particular manner of expression, the law on its face is both content and viewpoint neutral, and the Court would apply the well settled time, place, and manner test. In contrast, a law permitting communication in a certain manner for some, but not for others, raises the danger of content and viewpoint censorship, which is at its zenith when the determination of who may speak and who may not is left to an official's unbridled discretion. Even if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license from an official in that official's boundless discretion. Use of the "greater-includes-the-lesser" reasoning in the latter context is not supported by this Court's First Amendment cases. Pp. 486 U. S. 762-769.2. The portions of appellant city's ordinance giving the Mayor discretion to deny a permit application and authority to condition a permit on any terms he deems "necessary and reasonable" are unconstitutional. It cannot be presumed that the Mayor will adhere to standards absent from the ordinance's face, and so will deny a permit application only for reasons related to the health, safety, or welfare of city citizens, and that additional terms and conditions will be imposed only for similar reasons. The doctrine forbidding unbridled discretion requires that the limits the city claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well established practice. The ordinance's minimal requirement that the Mayor state his reasons for denying a permit does not provide the standards necessary to ensure constitutional decisionmaking, nor does it, of necessity, provide a solid foundation for eventual judicial review. Even if judicial review Page 486 U. S. 752 under the ordinance's provision were relatively speedy, such review does not substitute for concrete standards to guide the decisionmaker's discretion. Pp. 486 U. S. 769-772.3. Other questions as to the ordinance's constitutionality presented for review need not be resolved, since the holding regarding the ordinance's mayoral discretion provisions alone sustains the Court of Appeals' judgment if those provisions of the ordinance are not severable from the remainder. Severability of a local ordinance is a question of state law, and is therefore best resolved below. P. 486 U. S. 772.794 F.2d 1139, affirmed in part and remanded.BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, and SCALIA, JJ., joined. WHITE, J., filed a dissenting opinion, in which STEVENS and O'CONNOR, JJ., joined, post, p. 486 U. S. 772. REHNQUIST, C.J., and KENNEDY, J., took no part in the consideration or decision of the case.

1988_88-429

JUSTICE BRENNAN delivered the opinion of the Court.The Department of Justice regularly seeks advice from the American Bar Association's Standing Committee on Federal Judiciary regarding potential nominees for federal judgeships. The question before us is whether the Federal Advisory Committee Act (FACA), 86 Stat. 770, as amended, 5 U.S.C.App. § 1 et seq. (1982 ed. and Supp.V), applies to these consultations, and, if it does, whether its application interferes unconstitutionally with the President's prerogative under Article II to nominate and appoint officers of the United States; violates the doctrine of separation of powers; or unduly infringes the First Amendment right of members of the American Bar Association to freedom of association and expression. We hold that FACA does not apply to this special advisory relationship. We therefore do not reach the constitutional questions presented.IAThe Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint" Supreme Court Justices and, as established by Congress, other federal judges. Art. II, § 2, cl. 2. Since 1952, the President, through the Department of Justice, has requested advice from the American Bar Association's Standing Committee on Federal Judiciary (ABA Committee) in making such nominations.The American Bar Association is a private voluntary professional association of approximately 343,000 attorneys. It has several working committees, among them the advisory body whose work is at issue here. The ABA Committee consists of 14 persons belonging to, and chosen by, the American Bar Association. Each of the 12 federal judicial Circuits (not including the Federal Circuit) has one representative on the ABA Committee, except for the Ninth Circuit, which has Page 491 U. S. 444 two; in addition, one member is chosen at large. The ABA Committee receives no federal funds. It does not recommend persons for appointment to the federal bench of its own initiative.Prior to announcing the names of nominees for judgeships on the courts of appeals, the district courts, or the Court of International Trade, the President, acting through the Department of Justice, routinely requests a potential nominee to complete a questionnaire drawn up by the ABA Committee and to submit it to the Assistant Attorney General for the Office of Legal Policy, to the chair of the ABA Committee, and to the committee member (usually the representative of the relevant judicial Circuit) charged with investigating the nominee. See American Bar Association Standing Committee on Federal Judiciary, What It Is and How It Works (1983), reprinted in App. 43-49; Brief for Federal Appellee 2. [Footnote 1] The potential nominee's answers and the referral of his or her name to the ABA Committee are kept confidential. The committee member conducting the investigation then reviews the legal writings of the potential nominee, interviews judges, legal scholars, and other attorneys regarding the potential nominee's qualifications, and discusses the matter confidentially with representatives of various professional organizations and other groups. The committee member also interviews the potential nominee, sometimes with other committee members in attendance.Following the initial investigation, the committee representative prepares for the chair an informal written report describing the potential nominee's background, summarizing all interviews, assessing the candidate's qualifications, and recommending one of four possible ratings: "exceptionally well qualified," "well qualified," "qualified," or "not qualified." [Footnote 2] Page 491 U. S. 445 The chair then makes a confidential informal report to the Attorney General's Office. The chair's report discloses the substance of the committee representative's report to the chair, without revealing the identity of persons who were interviewed, and indicates the evaluation the potential nominee is likely to receive if the Department of Justice requests a formal report.If the Justice Department does request a formal report, the committee representative prepares a draft and sends copies to other members of the ABA Committee, together with relevant materials. A vote is then taken, and a final report approved. The ABA Committee conveys its rating -- though not its final report -- in confidence to the Department of Justice, accompanied by a statement whether its rating was supported by all committee members or whether it only commanded a majority or substantial majority of the ABA Committee. After considering the rating and other information the President and his advisors have assembled, including a report by the Federal Bureau of Investigation and additional interviews conducted by the President's judicial selection committee, the President then decides whether to nominate the candidate. If the candidate is in fact nominated, the ABA Committee's rating, but not its report, is made public at the request of the Senate Judiciary Committee. [Footnote 3]BFACA was born of a desire to assess the need for the"numerous committees, boards, commissions, councils, and similar Page 491 U. S. 446 which have been established to advise officers and agencies in the executive branch of the Federal Government."§ 2(a), as set forth in 5 U.S.C.App. § 2(a). [Footnote 4] Its purpose was to ensure that new advisory committees be established only when essential, and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature. § 2(b).To attain these objectives, FACA directs the Director of the Office of Management and Budget and agency heads to establish various administrative guidelines and management controls for advisory committees. It also imposes a number of requirements on advisory groups. For example, FACA requires that each advisory committee file a charter, § 9(c), and keep detailed minutes of its meetings. § 10(c). Those meetings must be chaired or attended by an officer or employee of the Federal Government who is authorized to adjourn any meeting when he or she deems its adjournment in the public interest. § 10(e). FACA also requires advisory committees to provide advance notice of their meetings and to open them to the public, § 10(a), unless the President or the agency head to which an advisory committee reports determines that it may be closed to the public in accordance with the Government in the Sunshine Act, 5 U.S.C. § 552b(c). § 10(d). In addition, FACA stipulates that advisory committee minutes, records, and reports be made available Page 491 U. S. 447 to the public, provided they do not fall within one of the Freedom of Information Act's exemptions, see 5 U.S.C. § 552, and the Government does not choose to withhold them. § 10(b). Advisory committees established by legislation or created by the President or other federal officials must also be "fairly balanced in terms of the points of view represented and the functions" they perform. §§ 5(b)(2), (c). Their existence is limited to two years, unless specifically exempted by the entity establishing them. § 14(a)(1).CIn October, 1986, appellant Washington Legal Foundation (WLF) brought suit against the Department of Justice after the ABA Committee refused WLF's request for the names of potential judicial nominees it was considering and for the ABA Committee's reports and minutes of its meetings. [Footnote 5] WLF asked the District Court for the District of Columbia to declare the ABA Committee an "advisory committee" as FACA defines that term. WLF further sought an injunction ordering the Justice Department to cease utilizing the ABA Committee as an advisory committee until it complied with FACA. In particular, WLF contended that the ABA Committee must file a charter, afford notice of its meetings, open those meetings to the public, and make its minutes, records, and reports available for public inspection and copying. See WLF Complaint, App. 5-11. The Justice Department moved to dismiss, arguing that the ABA Committee did not fall within FACA's definition of "advisory committee" Page 491 U. S. 448 and that, if it did, FACA would violate the constitutional doctrine of separation of powers.Appellant Public Citizen then moved successfully to intervene as a party plaintiff. Like WLF, Public Citizen requested a declaration that the Justice Department's utilization of the ABA Committee is covered by FACA and an order enjoining the Justice Department to comply with FACA's requirements.The District Court dismissed the action following oral argument. 691 F. Supp. 483 (1988). The court held that the Justice Department's use of the ABA Committee is subject to FACA's strictures, but that"FACA cannot constitutionally be applied to the ABA Committee because to do so would violate the express separation of nomination and consent powers set forth in Article II of the Constitution and because no overriding congressional interest in applying FACA to the ABA Committee has been demonstrated."Id. at 486. Congress' role in choosing judges "is limited to the Senate's advice and consent function," the court concluded;"the purposes of FACA are served through the public confirmation process, and any need for applying FACA to the ABA Committee is outweighed by the President's interest in preserving confidentiality and freedom of consultation in selecting judicial nominees."Id. at 496. We noted probable jurisdiction, 488 U.S. 979 (1988), and now affirm on statutory grounds, making consideration of the relevant constitutional issues unnecessary.IIAs a preliminary matter, appellee American Bar Association contests appellants' standing to bring this suit. [Footnote 6] Appellee's challenge is twofold. First, it contends that neither appellant has alleged injury sufficiently concrete and specific to confer standing; rather, appellee maintains, they have Page 491 U. S. 449 advanced a general grievance shared in substantially equal measure by all or a large class of citizens, and thus lack standing under our precedents. Brief for Appellee ABA 12-15. Second, appellee argues that, even if appellants have asserted a sufficiently discrete injury, they have not demonstrated that a decision in their favor would likely redress the alleged harm, because the meetings they seek to attend and the minutes and records they wish to review would probably be closed to them under FACA. Hence, the American Bar Association submits, Article III bars their suit. Id. at 15-17.We reject these arguments. Appellee does not, and cannot, dispute that appellants are attempting to compel the Justice Department and the ABA Committee to comply with FACA's charter and notice requirements, and that they seek access to the ABA Committee's meetings and records in order to monitor its workings and participate more effectively in the judicial selection process. Appellant WLF has specifically requested, and been refused, the names of candidates under consideration by the ABA Committee, reports and minutes of the Committee's meetings, and advance notice of future meetings. WLF Complaint, App. 8. As when an agency denies requests for information under the Freedom of Information Act, refusal to permit appellants to scrutinize the ABA Committee's activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing to sue. Our decisions interpreting the Freedom of Information Act have never suggested that those requesting information under it need show more than that they sought and were denied specific agency records. See, e.g., Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749 (1989); Department of Justice v. Julian, 486 U. S. 1 (1988); United States v. Weber Aircraft Corp., 465 U. S. 792 (1984); FBI v. Abramson, 456 U. S. 615 (1982); Department of Air Force v. Rose, 425 U. S. 352 (1976). There is no reason for a different rule here. The fact that other citizens Page 491 U. S. 450 or groups of citizens might make the same complaint after unsuccessfully demanding disclosure under FACA does not lessen appellants' asserted injury, any more than the fact that numerous citizens might request the same information under the Freedom of Information Act entails that those who have been denied access do not possess a sufficient basis to sue.We likewise find untenable the American Bar Association's claim that appellants lack standing because a ruling in their favor would not provide genuine relief as a result of FACA's exceptions to disclosure. Appellants acknowledge that many meetings of the ABA Committee might legitimately be closed to the public under FACA, and that many documents might properly be shielded from public view. But they by no means concede that FACA licenses denying them access to all meetings and papers, or that it excuses noncompliance with FACA's other provisions. As Public Citizen contends, if FACA applies to the Justice Department's use of the ABA Committee without violating the Constitution, the ABA Committee will at least have to file a charter and give notice of its meetings. In addition, discussions and documents regarding the overall functioning of the ABA Committee, including its investigative, evaluative, and voting procedures, could well fall outside FACA's exemptions. See Reply Brief for Appellant in No. 88-429, pp. 5-6, and n. 3.Indeed, it is difficult to square appellee's assertion that appellants cannot hope to gain noteworthy relief with its contention that"even more significant interference [than participation of Government officials in the ABA Committee's affairs] would result from the potential application of the 'public inspection' provisions of Section 10 of the Act."Brief for Appellee ABA 36. The American Bar Association explains:"Disclosure and public access are the rule under FACA; the exemptions generally are construed narrowly. In fact, the Government-in-the-Sunshine Act has no deliberative process privilege under which ABA Committee meetings Page 491 U. S. 451 could be closed."Id. at 38-39 (citations omitted). Appellee therefore concludes:"At bottom, there can be no question that application of FACA will impair the sensitive and necessarily confidential process of gathering information to assess accurately the qualifications and character of prospective judicial nominees."Id. at 39. Whatever the merits of these claims, and whatever their relevance to appellee's constitutional objections to FACA's applicability, they certainly show, as appellants contend, that appellants might gain significant relief if they prevail in their suit. Appellants' potential gains are undoubtedly sufficient to give them standing. [Footnote 7]IIISection 3(2) of FACA, as set forth in 5 U.S.C.App. § 3(2), defines "advisory committee" as follows:"For the purpose of this Act -- ""* * * *" "(2) The term 'advisory committee' means any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof (hereafter in this paragraph referred to as 'committee'), which is -- ""(A) established by statute or reorganization plan, or""(B) established or utilized by the President, or""(C) established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government, except that such term excludes Page 491 U. S. 452 (i) the Advisory Commission on Intergovernmental Relations, (ii) the Commission on Government Procurement, and (iii) any committee which is composed wholly of full-time officers or employees of the Federal Government."Appellants agree that the ABA Committee was not "established" by the President or the Justice Department. See Brief for Appellant in No. 88-429, p. 16; Brief for Appellant in No. 88-494, pp. 13, 15-16, 21. Equally plainly, the ABA Committee is a committee that furnishes "advice or recommendations" to the President via the Justice Department. Whether the ABA Committee constitutes an "advisory committee" for purposes of FACA therefore depends upon whether it is "utilized" by the President or the Justice Department as Congress intended that term to be understood.AThere is no doubt that the Executive makes use of the ABA Committee, and thus "utilizes" it in one common sense of the term. As the District Court recognized, however, "reliance on the plain language of FACA alone is not entirely satisfactory." 691 F. Supp. at 488. "Utilize" is a woolly verb, its contours left undefined by the statute itself. Read unqualifiedly, it would extend FACA's requirements to any group of two or more persons, or at least any formal organization, from which the President or an Executive agency seeks advice. [Footnote 8] We are convinced that Congress did not intend that result. A nodding acquaintance with FACA's purposes, Page 491 U. S. 453 as manifested by its legislative history and as recited in § 2 of the Act, reveals that it cannot have been Congress' intention, for example, to require the filing of a charter, the presence of a controlling federal official, and detailed minutes any time the President seeks the views of the National Association for the Advancement of Colored People (NAACP) before nominating Commissioners to the Equal Employment Opportunity Commission, or asks the leaders of an American Legion Post he is visiting for the organization's opinion on some aspect of military policy.Nor can Congress have meant -- as a straightforward reading of "utilize" would appear to require -- that all of FACA's restrictions apply if a President consults with his own political party before picking his Cabinet. It was unmistakably not Congress' intention to intrude on a political party's freedom to conduct its affairs as it chooses, cf. Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 489 U. S. 230 (1989), or its ability to advise elected officials who belong to that party, by placing a federal employee in charge of each advisory group meeting and making its minutes public property. FACA was enacted to cure specific ills, above all the wasteful expenditure of public funds for worthless committee meetings and biased proposals; although its reach is extensive, we cannot believe that it was intended to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice. [Footnote 9] As we Page 491 U. S. 454 said in Church of the Holy Trinity v. United States, 143 U. S. 457, 143 U. S. 459 (1892):"[F]requently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act."Where the literal reading of a statutory term would "compel an odd result," Green v. Bock Laundry Machine Co., 490 U. S. 504, 490 U. S. 509 (1989), we must search for other evidence of congressional intent to lend the term its proper scope. See also e.g., Church of the Holy Trinity, supra, at 143 U. S. 472; FDIC v. Philadelphia Gear Corp., 476 U. S. 426, 476 U. S. 432 (1986). "The circumstances of the enactment of particular legislation," for example, "may persuade a court that Congress did not intend words of common meaning to have their literal effect." Watt v. Alaska, 451 U. S. 259, 451 U. S. 266 (1981). Even though, as Judge Learned Hand said,"the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing,"nevertheless"it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, Page 491 U. S. 455 but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."Cabell v. Markham, 148 F.2d 737, 739 (CA2), aff'd, 326 U. S. 404 (1945). Looking beyond the naked text for guidance is perfectly proper when the result it apparently decrees is difficult to fathom or where it seems inconsistent with Congress' intention, since the plain-meaning rule is "rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists." Boston Sand & Gravel Co. v. United States, 278 U. S. 41, 278 U. S. 48 (1928) (Holmes, J.). See also United States v. American Trucking Assns., Inc., 310 U. S. 534, 310 U. S. 543-544 (1940) ("When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law' which forbids its use, however clear the words may appear on `superficial examination'") (citations omitted).Consideration of FACA's purposes and origins in determining whether the term "utilized" was meant to apply to the Justice Department's use of the ABA Committee is particularly appropriate here, given the importance we have consistently attached to interpreting statutes to avoid deciding difficult constitutional questions where the text fairly admits of a less problematic construction. See infra at 491 U. S. 465-467. It is therefore imperative that we consider indicators of congressional intent in addition to the statutory language before concluding that FACA was meant to cover the ABA Committee's provision of advice to the Justice Department in connection with judicial nominations.BClose attention to FACA's history is helpful, for FACA did not flare on the legislative scene with the suddenness of a meteor. Similar attempts to regulate the Federal Government's use of advisory committees were common during the 20 years preceding FACA's enactment. See Note, The Federal Page 491 U. S. 456 Advisory Committee Act, 10 Harv.J.Legis. 217, 219-221 (1973). An understanding of those efforts is essential to ascertain the intended scope of the term "utilize."In 1950, the Justice Department issued guidelines for the operation of federal advisory committees in order to forestall their facilitation of anticompetitive behavior by bringing industry leaders together with Government approval. See Hearings on WOC's [Without Compensation Government employees] and Government Advisory Groups before the Antitrust Subcommittee of the House Committee on the Judiciary, 84th Cong., 1st Sess., pt. 1, pp. 586-587 (1955) (reprinting guidelines). Several years later, after the House Committee on Government Operations found that the Justice Department's guidelines were frequently ignored, Representative Fascell sponsored a bill that would have accorded the guidelines legal status. H.R. 7390, 85th Cong., 1st Sess. (1957). Although the bill would have required agencies to report to Congress on their use of advisory committees and would have subjected advisory committees to various controls, it apparently would not have imposed any requirements on private groups, not established by the Federal Government, whose advice was sought by the Executive. See H.R.Rep. No. 576, 85th Cong., 1st Sess., 5-7 (1957); 103 Cong.Rec. 11252 (1957) (remarks of Rep. Fascell and Rep. Vorys).Despite Congress' failure to enact the bill, the Bureau of the Budget issued a directive in 1962 incorporating the bulk of the guidelines. See Perritt & Wilkinson, Open Advisory Committees and the Political Process: The Federal Advisory Committee Act After Two Years, 63 Geo. L.J. 725, 731 (1975). Later that year, President Kennedy issued Executive Order No. 11007, 3 CFR 573 (1959-1963 Comp.), which governed the functioning of advisory ' committees until FACA's passage. Executive Order No. 11007 is the probable source of the term "utilize" as later employed in FACA. The Order applied to advisory committees "formed by a Page 491 U. S. 457 department or agency of the Government in the interest of obtaining advice or recommendations," or"not formed by a department or agency, but only during any period when it is being utilized by a department or agency in the same manner as a Government-formed advisory committee."§ 2(a) (emphasis added). To a large extent, FACA adopted wholesale the provisions of Executive Order No. 11007. For example, like FACA, Executive Order No. 11007 stipulated that no advisory committee be formed or utilized unless authorized by law or determined as a matter of formal record by an agency head to be in the public interest, § 3; that all advisory committee meetings be held in the presence of a Government employee empowered to adjourn the meetings whenever he or she considered adjournment to be in the public interest, § 6(b); that meetings only occur at the call of, or with the advance approval of, a federal employee, § 6(a); that minutes be kept of the meetings, §§ 6(c), (d); and that committees terminate after two years unless statute or an agency head decreed otherwise. § 8.There is no indication, however, that Executive Order No. 11007 was intended to apply to the Justice Department's consultations with the ABA Committee. Neither President Kennedy, who issued the Order, nor President Johnson, nor President Nixon apparently deemed the ABA Committee to be "utilized" by the Department of Justice in the relevant sense of that term. Notwithstanding the ABA Committee's highly visible role in advising the Justice Department regarding potential judicial nominees, and notwithstanding the fact that the Order's requirements were established by the Executive itself, rather than Congress, no President or Justice Department official applied them to the ABA Committee. As an entity formed privately, rather than at the Federal Government's prompting, to render confidential advice with respect to the President's constitutionally specified power to nominate federal judges -- an entity in receipt of no federal funds and not amenable to the strict management by Page 491 U. S. 458 agency officials envisaged by Executive Order No. 11007 -- the ABA Committee cannot easily be said to have been "utilized by a department or agency in the same manner as a Government-formed advisory committee." That the Executive apparently did not consider the ABA Committee's activity within the terms of its own Executive Order is therefore unsurprising.Although FACA's legislative history evinces an intent to widen the scope of Executive Order No. 11007's definition of "advisory committee" by including "Presidential advisory committees," which lay beyond the reach of Executive Order No. 11007, [Footnote 10] see H.R.Rep. No. 91-1731, pp. 9-10 (1970); H.R.Rep. No. 92-1017, p. 4 (1972); S.Rep. No. 92-1098, pp. 3-5, 7 (1972), as well as to augment the restrictions applicable Page 491 U. S. 459 to advisory committees covered by the statute, there is scant reason to believe that Congress desired to bring the ABA Committee within FACA's net. FACA's principal purpose was to enhance the public accountability of advisory committees established by the Executive Branch and to reduce wasteful expenditures on them. That purpose could be accomplished, however, without expanding the coverage of Executive Order No. 11007 to include privately organized committees that received no federal funds. Indeed, there is considerable evidence that Congress sought nothing more than stricter compliance with reporting and other requirements -- which were made more stringent -- by advisory committees already covered by the Order, and similar treatment of a small class of publicly funded groups created by the President.The House bill which, in its amended form, became FACA applied exclusively to advisory committees "established" by statute or by the Executive, whether by a federal agency or by the President himself. H.R. 4383, 92d Cong., 2d Sess. § 3(2) (1972). Although the House Committee Report stated that the class of advisory committees was to include"committees which may have been organized before their advice was sought by the President or any agency, but which are used by the President or any agency in the same way as an advisory committee formed by the President himself or the agency itself,"H.R.Rep. No. 92-1017, supra, at 4, it is questionable whether the Report's authors believed that the Justice Department used the ABA Committee in the same way as it used advisory committees it established. The phrase "used . . . in the same way" is reminiscent of Executive Order No. 11007's reference to advisory committees "utilized . . . in the same manner" as a committee established by the Federal Government, and the practice of three administrations demonstrates that Executive Order No. 11007 did not encompass the ABA Committee. Page 491 U. S. 460This inference draws support from the earlier House Report which instigated the legislative efforts that culminated in FACA. That Report complained that committees "utilized" by an agency -- as opposed to those established directly by an agency -- rarely complied with the requirements of Executive Order No. 11007. See H.R.Rep. No. 91-1731, supra, at 15. But it did not cite the ABA Committee or similar advisory committees as willful evaders of the Order. Rather, the Report's paradigmatic example of a committee "utilized" by an agency for purposes of Executive Order No. 11007 was an advisory committee established by a quasi-public organization in receipt of public funds, such as the National Academy of Sciences. [Footnote 11] There is no indication in the Report that a purely private group like the ABA Committee, that was not formed by the Executive, accepted no public funds, and assisted the Executive in performing a constitutionally specified task committed to the Executive, was within the terms of Executive Order No. 11007 or was the type of advisory entity that legislation was urgently needed to address. Page 491 U. S. 461Paralleling the initial House bill, the Senate bill that grew into FACA defined "advisory committee" as one "established or organized" by statute, the President, or an Executive agency. S. 3529, 92d Cong., 2d Sess. §§ 3(1), (2) (1972). Like the House Report, the accompanying Senate Report stated that the phrase "established or organized" was to be understood in its"most liberal sense, so that, when an officer brings together a group by formal or informal means, by contract or other arrangement, and whether or not Federal money is expended, to obtain advice and information, such group is covered by the provisions of this bill."S.Rep. No. 92-1098, supra, at 8. While the Report manifested a clear intent not to restrict FACA's coverage to advisory committees funded by the Federal Government, it did not indicate any desire to bring all private advisory committees within FACA's terms. Indeed, the examples the Senate Report offers --"the Advisory Council on Federal Reports, the National Industrial Pollution Control Council, the National Petroleum Council, advisory councils to the National Institutes of Health, and committees of the national academies where they are utilized and officially recognized as advisory to the President, to an agency, or to a Government official,"ibid. -- are limited to groups organized by, or closely tied to, the Federal Government, and thus enjoying quasi-public status. Given the prominence of the ABA Committee's role and its familiarity to Members of Congress, its omission from the list of groups formed and maintained by private initiative to offer advice with respect to the President's nomination of Government officials is telling. If the examples offered by the Senate Committee on Government Operations are representative, as seems fair to surmise, then there is little reason to think that there was any support, at least at the committee stage, for going beyond the terms of Executive Order No. 11007 to regulate comprehensively the workings of the ABA Committee.It is true that the final version of FACA approved by both Houses employed the phrase "established or utilized," Page 491 U. S. 462 and that this phrase is more capacious than the word "established" or the phrase "established or organized." But its genesis suggests that it was not intended to go much beyond those narrower formulations. The words "or utilized" were added by the Conference Committee to the definition included in the House bill. See H.R.Conf.Rep. No. 92-1403, p. 2 (1972). The Joint Explanatory Statement, however, said simply that the definition contained in the House bill was adopted "with modification." Id. at 9. The Conference Report offered no indication that the modification was significant, let alone that it would substantially broaden FACA's application by sweeping within its terms a vast number of private groups, such as the Republican National Committee, not formed at the behest of the Executive or by quasi-public organizations whose opinions the Federal Government sometimes solicits. Indeed, it appears that the House bill's initial restricted focus on advisory committees established by the Federal Government, in an expanded sense of the word "established," was retained, rather than enlarged, by the Conference Committee. In the section dealing with FACA's range of application, the Conference Report stated:"The Act does not apply to persons or organizations which have contractual relationships with Federal agencies nor to advisory committees not directly established by or for such agencies. Id. at 10 (emphasis added). The phrase 'or utilized' therefore appears to have been added simply to clarify that FACA applies to advisory committees established by the Federal Government in a generous sense of that term, encompassing groups formed indirectly by quasi-public organizations such as the National Academy of Sciences 'for' public agencies as well as 'by' such agencies themselves."Read in this way, the term "utilized" would meet the concerns of the authors of House Report No. 91-1731 that advisory committees covered by Executive Order No. 11007, because they were "utilized by a department or agency in the same manner as a Government-formed advisory committee Page 491 U. S. 463 -- such as the groups organized by the National Academy of Sciences and its affiliates which the Report discussed -- would be subject to FACA's requirements. And it comports well with the initial House and Senate bills' limited extension to advisory groups "established," on a broad understanding of that word, by the Federal Government, whether those groups were established by the Executive Branch or by statute or whether they were the offspring of some organization created or permeated by the Federal Government. Read in this way, however, the word "utilized" does not describe the Justice Department's use of the ABA Committee. Consultations between the Justice Department and the ABA Committee were not within the purview of Executive Order No. 11007, nor can the ABA Committee be said to have been formed by the Justice Department or by some semiprivate entity the Federal Government helped bring into being.In sum, a literalistic reading of § 3(2) would bring the Justice Department's advisory relationship with the ABA Committee within FACA's terms, particularly given FACA's objective of opening many advisory relationships to public scrutiny except in certain narrowly defined situations. [Footnote 12] A Page 491 U. S. 464 literalistic reading, however, would catch far more groups and consulting arrangements than Congress could conceivably have intended. And the careful review which this interpretive difficulty warrants of earlier efforts to regulate Page 491 U. S. 465 federal advisory committees and the circumstances surrounding FACA's adoption strongly suggests that FACA's definition of "advisory committee" was not meant to encompass the ABA Committee's relationship with the Justice Department. That relationship seems not to have been within the contemplation of Executive Order No. 11007. And FACA's legislative history does not display an intent to widen the Order's application to encircle it. Weighing the deliberately inclusive statutory language against other evidence of congressional intent, it seems to us a close question whether FACA should be construed to apply to the ABA Committee, although, on the whole, we are fairly confident it should not. There is, however, one additional consideration which, in our view, tips the balance decisively against FACA's application.C"When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible Page 491 U. S. 466 by which the question may be avoided."Crowell v. Benson, 285 U. S. 22, 285 U. S. 62 (1932) (footnote collecting citations omitted). It has long been an axiom of statutory interpretation that"where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."Edward J. Desartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568, 485 U. S. 575 (1988). See also St. Martin Evangelical Lutheran Church v. South Dakota, 451 U. S. 772, 451 U. S. 780 (1981); NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 440 U. S. 500-501 (1979); Machinists v. Street, 367 U. S. 740, 367 U. S. 749-750 (1961). This approach, we said recently,"not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that Congress, like this Court, is bound by and swears an oath to uphold the Constitution."Edward J. Desartolo Corp., supra, at 367 U. S. 575. Our reluctance to decide constitutional issues is especially great where, as here, they concern the relative powers of coordinate branches of government. See American Foreign Service Assn. v. Garfinkel, 490 U. S. 153, 490 U. S. 161 (1989) (per curiam). Hence, we are loath to conclude that Congress intended to press ahead into dangerous constitutional thickets in the absence of firm evidence that it courted those perils.That construing FACA to apply to the Justice Department's consultations with the ABA Committee would present formidable constitutional difficulties is undeniable. The District Court declared FACA unconstitutional insofar as it applied to those consultations, because it concluded that FACA, so applied, infringed unduly on the President's Article II power to nominate federal judges and violated the doctrine of separation of powers. [Footnote 13] Whether or not the court's conclusion Page 491 U. S. 467 was correct, there is no gainsaying the seriousness of these constitutional challenges.To be sure, "[w]e cannot press statutory construction "to the point of disingenuous evasion" even to avoid a constitutional question." United States v. Locke, 471 U. S. 84, 471 U. S. 96 (1985), quoting Moore Ice Cream Co. v. Rose, 289 U. S. 373, 289 U. S. 379 (1933). But unlike in Locke, where "nothing in the legislative history remotely suggest[ed] a congressional intent contrary to Congress' chosen words," 471 U.S. at 471 U. S. 96, our review of the regulatory scheme prior to FACA's enactment and the likely origin of the phrase "or utilized" in FACA's definition of "advisory committee" reveals that Congress probably did not intend to subject the ABA Committee to FACA's requirements when the ABA Committee offers confidential advice regarding Presidential appointments to the federal bench. Where the competing arguments based on FACA's text and legislative history, though both plausible, tend to show that Congress did not desire FACA to apply to the Justice Department's confidential solicitation of the ABA Committee's views on prospective judicial nominees, sound sense counsels adherence to our rule of caution. Our unwillingness to resolve important constitutional questions unnecessarily thus solidifies our conviction that FACA is inapplicable.The judgment of the District Court isAffirmed

U.S. Supreme CourtPublic Citizen v. Department of Justice, 491 U.S. 440 (1989)Public Citizen v. United States Department of JusticeNo. 88-429Argued April 17, 1989Decided June 21, 1989491 U.S. 440SyllabusTo aid the President in fulfilling his constitutional duty to appoint federal judges, the Department of Justice regularly seeks advice from the Standing Committee on Federal Judiciary of the American Bar Association (ABA) regarding potential nominees for judgeships. The ABA Committee's investigations, reports, and votes on potential nominees are kept confidential, although its rating of a particular candidate is made public if he or she is in fact nominated. Appellant Washington Legal Foundation (WLF) filed suit against the Justice Department after the ABA Committee refused WLF's request for the names of potential nominees it was considering and for its reports and minutes of its meetings. The action was brought under the Federal Advisory Committee Act (FACA), which, among other things, defines an "advisory committee" as any group "established or utilized" by the President or an agency to give advice on public questions, and requires a covered group to file a charter, afford notice of its meetings, open those meetings to the public, and make its minutes, records, and reports available to the public. Joined by appellant Public Citizen, WLF asked the District Court to declare the Committee an "advisory group" subject to FACA's requirements and to enjoin the Department from utilizing the ABA Committee until it complied with those requirements. The court dismissed the complaint, holding that the Department's use of the ABA Committee is subject to FACA's strictures, but ruling that applying FACA to the ABA Committee would unconstitutionally infringe on the President's Article II power to nominate federal judges and violate the doctrine of separation of powers.Held:1. Appellants have standing to bring this suit. The refusal to permit them to scrutinize the ABA Committee's activities to the extent FACA allows constitutes a sufficiently distinct injury to provide standing, and the fact that other groups or citizens might make the same complaint as appellants does not lessen that injury. Moreover, although the statute's Page 491 U. S. 441 disclosure exemptions might bar public access to many of the meetings appellants seek to attend and many of the documents they wish to view, the exemptions probably would not deny access to all meetings and documents, particularly discussions and documents regarding the ABA Committee's overall functioning, and would not excuse the ABA Committee's noncompliance with FACA's other provisions, such as those requiring a covered organization to file a charter and give notice of its meetings. Thus, appellants may gain significant and genuine relief if they prevail in their suit, and such potential gains are sufficient to give them standing. Pp. 491 U. S. 448-451.2. FACA does not apply to the Justice Department's solicitation of the ABA Committee's views on prospective judicial nominees. Pp. 491 U. S. 451-467.(a) Whether the ABA Committee is an "advisory committee" under FACA depends upon whether it is "utilized" by the President or the Department within the statute's meaning. Read unqualifiedly, that verb would extend FACA's coverage to the ABA Committee. However, since FACA was enacted to cure specific ills -- particularly the wasteful expenditure of public funds for worthless committee meetings and biased proposals by special interest groups -- it is unlikely that Congress intended the statute to cover every formal and informal consultation between the President or an Executive agency and a group rendering advice. When the literal reading of a statutory term compels an odd result, this Court searches beyond the bare text for other evidence of congressional intent. Pp. 491 U. S. 451-455.(b) Although the question is a close one, a careful review of the regulatory scheme prior to FACA's enactment and that statute's legislative history strongly suggests that Congress did not intend that the term "utilized" apply to the Justice Department's use of the ABA Committee. FACA's regulatory predecessor, Executive Order No. 11007, applied to advisory committees formed by a governmental unit, and to those not so formed when "being utilized by [the Government] in the same manner as a Government-formed . . . committee." That the ABA Committee was never deemed to be "utilized" in the relevant sense is evidenced by the fact that no President operating under the Order or any Justice Department official ever applied the Order to the ABA Committee, despite its highly visible role in advising the Department as to potential nominees. That is not surprising, since the ABA Committee -- which was formed privately, rather than at the Government's prompting, to assist the President in performing a constitutionally specified function, and which receives no federal funds and is not amenable to the strict management by agency officials envisaged by the Order -- cannot easily be said to have been "utilized" in the same manner as a Government-formed committee. Moreover, FACA adopted many of the Order's provisions, and there is Page 491 U. S. 442 considerable evidence in the statute's legislative history that Congress sought only to achieve compliance with FACA's more stringent requirements by advisory committees already covered by the Order and by Presidential advisory committees, and that the statute's "or utilized" phrase was intended to clarify that FACA applies to committees "established . . . by" the Government in a generous sense of that term, encompassing groups formed indirectly by quasi-public organizations "for" public agencies as well as "by" such agencies themselves. Read in this way, the word "utilized" does not describe the Justice Department's use of the ABA Committee. Pp. 491 U. S. 455-465.(c) Construing FACA to apply to the Justice Department's consultations with the ABA Committee would present formidable constitutional difficulties. Where, as here, a plausible alternative construction exists that will allow the Court to avoid such problems, the Court will adopt that construction. See, e.g., Crowell v. Benson, 285 U. S. 22, 285 U. S. 62. Pp. 491 U. S. 465-467.691 F. Supp. 483, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment, in which REHNQUIST, C.J., and O'CONNOR, J., joined, post, p. 491 U. S. 467. SCALIA, J., took no part in the consideration or decision of the cases. Page 491 U. S. 443

1985_84-1999

JUSTICE BRENNAN delivered the opinion of the Court.The question presented in this case is whether § 706(g) of Title VII of the Civil Rights Act of 1964, 78 Stat. 261, as amended, 42 U.S.C. § 2000e-5(g), precludes the entry of a consent decree which provides relief that may benefit individuals who were not the actual victims of the defendant's discriminatory practices.IOn October 23, 1980, the Vanguards of Cleveland (Vanguards), an organization of black and Hispanic firefighters employed by the City of Cleveland, filed a complaint charging the City and various municipal officials (hereinafter referred to collectively as the City) with discrimination on the basis of race and national origin "in the hiring, assignment and promotion of firefighters within the City of Cleveland Fire Department." App. 6. The Vanguards sued on behalf of a class of blacks and Hispanics consisting of firefighters already employed by the City, applicants for employment, and "all blacks and Hispanics who in the future will apply for employment or will be employed as firemen by the Cleveland Fire Department." Id. at 8.The Vanguards claimed that the City had violated the rights of the plaintiff class under the Thirteenth and Fourteenth Amendments to the United States Constitution, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981 and 1983. Although the complaint alleged facts to establish discrimination in hiring and work assignments, the primary allegations charged that Page 478 U. S. 505 black and Hispanic firefighters "have . . . been discriminated against by reason of their race and national origin in the awarding of promotions within the Fire Department." App. 11. [Footnote 1] The complaint averred that this discrimination was effectuated by a number of intentional practices by the City. The written examination used for making promotions was alleged to be discriminatory. The effects of this test were said to be reinforced by the use of seniority points and by the manipulation of retirement dates so that minorities would not be near the top of promotion lists when positions became available. In addition, the City assertedly limited minority advancement by deliberately refusing to administer a new promotional examination after 1975, thus cancelling out the effects of increased minority hiring that had resulted from certain litigation commenced in 1973.As just noted, the Vanguards' lawsuit was not the first in which the City had to defend itself against charges of race discrimination in hiring and promotion in its civil services. In 1972, an organization of black police officers filed an action alleging that the Police Department discriminated against minorities in hiring and promotions. See Shield Club v. City of Cleveland, 370 F. Supp. 251 (ND Ohio 1972). The District Court found for the plaintiffs, and issued an order enjoining certain hiring and promotion practices and establishing minority Page 478 U. S. 506 hiring goals. In 1977, these hiring goals were adjusted and promotion goals were established pursuant to a consent decree. Thereafter, litigation raising similar claims was commenced against the Fire Department and resulted in a judicial finding of unlawful discrimination and the entry of a consent decree imposing hiring quotas similar to those ordered in the Shield Club litigation. See Headen v. City of Cleveland, No. C73-330 (ND Ohio, Apr. 25, 1975). In 1977, after additional litigation, the Headen court approved a new plan governing hiring procedures in the Fire Department.By the time the Vanguards filed their complaint, then, the City had already unsuccessfully contested many of the basic factual issues in other lawsuits. Naturally, this influenced the City's view of the Vanguards' case. As expressed by counsel for the City at oral argument in this Court:"[W]hen this case was filed in 1980, the City of Cleveland had eight years at that point of litigating these types of cases, and eight years of having judges rule against the City of Cleveland.""You don't have to beat us on the head. We finally learned what we had to do and what we had to try to do to comply with the law, and it was the intent of the city to comply with the law fully. . . ."Tr. of Oral Arg. 41-42. Thus, rather than commence another round of futile litigation, the City entered into "serious settlement negotiations" with the Vanguards. See Letter dated December 24, 1980, from Edward R. Stege, Jr., and Mark I. Wallach to Hon. Thomas J. Lambros.On April 27, 1981, Local Number 93 of the International Association of Firefighters, AFL-CIO, C.L.C. (Local 93 or Union), which represents a majority of Cleveland's firefighters, moved pursuant to Federal Rule of Civil Procedure 24(a)(2) to intervene as a party-plaintiff. The District Court granted the motion and ordered the Union to submit its complaint in intervention within 30 days. Page 478 U. S. 507Local 93 subsequently submitted a three-page document entitled "Complaint of Applicant for Intervention." Despite its title, this document did not allege any causes of action or assert any claims against either the Vanguards or the City. It expressed the view that"[p]romotions based upon any criterion other than competence, such as a racial quota system, would deny those most capable from their promotions, and would deny the residents of the City of Cleveland from maintaining the best possible fire fighting force,"and asserted that"Local #93's interest is to maintain a well trained and properly staffed fire fighting force and [Local 93] contends that promotions should be made on the basis of demonstrated competency, properly measured by competitive examinations administered in accordance with the applicable provisions of Federal, State, and Local laws."App. 27, 28. The "complaint" concluded with a prayer for relief in the form of an injunction requiring the City to award promotions on the basis of such examinations. Id. at 28.In the meantime, negotiations between the Vanguards and the City continued, and a proposed consent decree was submitted to the District Court in November, 1981. This proposal established "interim procedures" to be implemented "as a two-step temporary remedy" for past discrimination in promotions. Id. at 33. The first step required that a fixed number of already planned promotions be reserved for minorities: specifically, 16 of 40 planned promotions to Lieutenant, 3 of 20 planned promotions to Captain, 2 of 10 planned promotions to Battalion Chief, and 1 of 3 planned promotions to Assistant Chief were to be made to minority firefighters. Id. at 33-34. The second step involved the establishment of "appropriate minority promotion goal[s]," id. at 34, for the ranks of Lieutenant, Captain, and Battalion Chief. The proposal also required the City to forgo using seniority points as a factor in making promotions. Id. at 32-33. The plan was to remain in effect for nine years, and could be extended Page 478 U. S. 508 upon mutual application of the parties for an additional 6-year period. Id. at 36.The District Court held a 2-day hearing at the beginning of January to consider the fairness of this proposed consent decree. Local 93 objected to the use of minority promotional goals and to the 9-year life of the decree. In addition, the Union protested the fact that it had not been included in the negotiations. This latter objection particularly troubled the District Judge. Indeed, although hearing evidence presented by the Vanguards and the City in support of the decree, the Judge stated that he was "appalled that these negotiations leading to this consent decree did not include the intervenors . . . ," and refused to pass on the decree under the circumstances. Tr. 134 (Jan. 7, 1982). Instead, he concluded:"I am going to at this time to defer this proceeding until another day, and I am mandating the City and the [Vanguards] to engage the Fire Fighters in discussions, in dialogue. Let them know what is going on, hear their particular problems."Id. at 151. At the same time, Judge Lambros explained that the Union would have to make its objections more specific to accomplish anything:"I don't think the Fire Fighters are going to be able to win their position on the basis that, 'Well, Judge, you know, there's something inherently wrong about quotas. You know, it's not fair.' We need more than that."Id. at 153.A second hearing was held on April 27. Local 93 continued to oppose any form of affirmative action. Witnesses for all parties testified concerning the proposed consent decree. The testimony revealed that, while the consent decree dealt only with the 40 promotions to Lieutenant already planned by the City, the Fire Department was actually authorized to make up to 66 offers; similarly, the City was in a position to hire 32, rather than 20, Captains, and 14, rather than 10, Battalion Chiefs. After hearing this testimony, Judge Lambros proposed as an alternative to have the City make a high number of promotions over a relatively short period of time. The Page 478 U. S. 509 Judge explained that, if the City were to hire 66 Lieutenants, rather than 40, it could "plug in a substantial number of black leadership that can start having some influence in the operation of this fire department" while still promoting the same nonminority officers who would have obtained promotions under the existing system. Tr. 147-148 (Apr. 27, 1982). Additional testimony revealed that this approach had led to the amicable resolution of similar litigation in Atlanta, Georgia. Judge Lambros persuaded the parties to consider revamping the consent decree along the lines of the Atlanta plan. The proceedings were therefore adjourned, and the matter was referred to a United States Magistrate.Counsel for all three parties participated in 40 hours of intensive negotiations under the Magistrate's supervision, and agreed to a revised consent decree that incorporated a modified version of the Atlanta plan. See App. 79 (Report of Magistrate). However, submission of this proposal to the court was made contingent upon approval by the membership of Local 93. Despite the fact that the revised consent decree actually increased the number of supervisory positions available to nonminority firefighters, the Union members overwhelmingly rejected the proposal. [Footnote 2] Page 478 U. S. 510On January 11, 1983, the Vanguards and the City lodged a second amended consent decree with the court and moved for its approval. This proposal was "patterned very closely upon the revised decree negotiated under the supervision of [the] Magistrate . . . ," App. to Pet. for Cert. A31, and thus its central feature was the creation of many more promotional opportunities for firefighters of all races. Specifically, the decree required that the City immediately make 66 promotions to Lieutenant, 32 promotions to Captain, 16 promotions to Battalion Chief, and 4 promotions to Assistant Chief. These promotions were to be based on a promotional examination that had been administered during the litigation. The 66 initial promotions to Lieutenant were to be evenly split between minority and nonminority firefighters. However, since only 10 minorities had qualified for the 52 upper-level positions, the proposed decree provided that all 10 should be promoted. The decree further required promotional examinations to be administered in June, 1984, and December, 1985. Promotions from the lists produced by these examinations were to be made in accordance with specified promotional "goals" that were expressed in terms of percentages and were different for each rank. The list from the 1985 examination would remain in effect for two years, after which time the decree would expire. The life of the decree was thus shortened from nine years to four. In addition, except where necessary to implement specific requirements of the consent decree, the use of seniority points was restored as a factor in ranking candidates for promotion. Id. at A29-A38.Local 93 was mentioned twice in the proposal. Paragraph 16 required the City to submit progress reports concerning compliance to both the Union and the Vanguards. Id. at A36. In paragraph 24, the court reserved exclusive jurisdiction with respect to applications or claims made by "any Page 478 U. S. 511 party, including Intervenor." Id. at A38. The decree imposed no legal duties or obligations on Local 93.On January 19, the City was ordered to notify the members of the plaintiff class of the terms of the proposed decree. In addition, persons who wished to object to the proposal were ordered to submit their objections in writing. Local 93 filed the following formal objection to the proposed consent decree:"Local #93 has consistently and steadfastly maintained that there must be a more equitable, more fair, more just way to correct the problems caused by the [City]. Many alternatives to the hopefully soon to be unnecessary 'remedial' methods embodied in the law have been explored and some have been utilized.""Local #93 reiterates it's [sic] absolute and total objection to the use of racial quotas, which must, by their very nature, cause serious racial polarization in the Fire Service. Since this problem is obviously the concern of the collective representative of all members of the fire service, Intervenors, Local #93. [sic] We respectfully urge this court not to implement the 'remedial' provisions of this Decree."App. 98. Apart from thus expressing its opinion as to the wisdom and necessity of the proposed consent decree, the Union still failed to assert any legal claims against either the Vanguards or the City. [Footnote 3]The District Court approved the consent decree on January 31, 1983. Judge Lambros found that"[t]he documents, statistics, and testimony presented at the January and April, 1982, hearings reveal a historical pattern of racial discrimination in the promotions in the City of Cleveland Fire Department. "Page 478 U. S. 512App. to Brief in Opposition of City of Cleveland A3-A4. He then observed:"While the concerns articulated by Local 93 may be valid, the use of a quota system for the relatively short period of four years is not unreasonable in light of the demonstrated history of racial discrimination in promotions in the City of Cleveland Fire Department. It is neither unreasonable nor unfair to require nonminority firefighters who, although they committed no wrong, benefited from the effects of the discrimination to bear some of the burden of the remedy. Furthermore, the amended proposal is more reasonable, and less burdensome, than the nine-year plan that had been proposed originally."Id. at A5. The Judge therefore overruled the Union's objection and adopted the consent decree "as a fair, reasonable, and adequate resolution of the claims raised in this action." Ibid. The District Court retained exclusive jurisdiction for "all purposes of enforcement, modification, or amendment of th[e] Decree upon the application of any party. . . ." App. to Pet. for Cert. A38.The Union appealed the overruling of its objections. A panel for the Court of Appeals for the Sixth Circuit affirmed, one judge dissenting. Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479 (1985). The court rejected the Union's claim that the use of race-conscious relief was "unreasonable," finding such relief justified by the statistical evidence presented to the District Court and the City's express admission that it had engaged in discrimination. The court also found that the consent decree was "fair and reasonable to nonminority firefighters," emphasizing the "relatively modest goals set forth in the plan," the fact that "the plan does not require the hiring of unqualified minority firefighters or the discharge of any nonminority firefighters," the fact that the plan "does not create an absolute bar to the advancement Page 478 U. S. 513 of nonminority employees," and the short duration of the plan. Id. at 485.After oral argument before the Court of Appeals, this Court decided Firefighters v. Stotts, 467 U. S. 561 (1984). "Concerned with the potential impact of Stotts," the Court of Appeals ordered the parties to submit supplemental briefs, 753 F.2d at 485-486, but ultimately concluded that Stotts did not affect the outcome of the case. The court noted that the District Court in Stotts had issued an injunction requiring layoffs over the objection of the City, while, in this case, the City of Cleveland had agreed to the plan. The court reasoned that, even if Stotts holds that Title VII limits relief to those who have been actual victims of discrimination, "[t]he fact that this case involves a consent decree, and not an injunction, makes the legal basis of the Stotts decision inapplicable." 753 F.2d at 486. [Footnote 4]Local 93 petitioned this Court for a writ of certiorari. The sole issue raised by the petition is whether the consent decree is an impermissible remedy under § 706(g) of Title VII. [Footnote 5] Page 478 U. S. 514 Local 93 argues that the consent decree disregards the express prohibition of the last sentence of § 706(g) that"[n]o order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title."42 U.S.C. § 2000e-5(g) (emphasis added). According to Local 93, this sentence precludes a court from awarding relief under Title VII that may benefit individuals who were not the actual victims of the employer's discrimination. The Union argues further that the plain language of the provision that "[n]o order of the court" shall provide such relief extends this limitation to orders entered by consent, in addition to orders issued after litigation. Consequently, the Union concludes that a consent decree entered in Title VII litigation is invalid if -- like the consent decree approved in this case -- it utilizes racial preferences that may benefit individuals who are not themselves actual victims of an employer's discrimination. The Union is supported by the United States as amicus curiae. [Footnote 6] Page 478 U. S. 515We granted the petition in order to answer this important question of federal law. 474 U.S. 816 (1985). The Court holds today in Sheet Metal Workers v. EEOC, ante, p. 478 U. S. 421, that courts may, in appropriate cases, provide relief under Title VII that benefits individuals who were not the actual victims of a defendant's discriminatory practices. We need not decide whether this is one of those cases, however. For we hold that, whether or not § 706(g) precludes a court from imposing certain forms of race-conscious relief after trial, that provision does not apply to relief awarded in a consent decree. [Footnote 7] We therefore affirm the judgment of the Court of Appeals.IIWe have on numerous occasions recognized that Congress intended voluntary compliance to be the preferred means of achieving the objectives of Title VII. Alexander v. Gardner-Denver Co., 415 U. S. 36, 415 U. S. 44 (1974); Albemarle Paper Co. v. Moody, 422 U. S. 405, 422 U. S. 417-418 (1975) (quoting United States v. N. L. Industries. Inc., 479 F.2d 354, 379 (CA8 1973)) (Title VII sanctions intended to cause employers "to self-examine and self-evaluate their employment practices, and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history'"). See also Teamsters v. United States, 431 U. S. 324, 431 U. S. 364 (1977); Ford Motor Co. v. EEOC, 458 U. S. 219, 458 U. S. 228 (1982); W. R. Grace & Co. v. Rubber Workers, 461 U. S. 757, 461 U. S. 770-771 (1983). This view is shared by the Equal Employment Opportunity Commission (EEOC), which has promulgated guidelines setting forth its understanding that"Congress strongly encouraged employers . . . to act on a voluntary basis to modify employment practices and systems Page 478 U. S. 516 which constituted barriers to equal employment opportunity. . . ."29 CFR § 1608.1(b) (1985). According to the EEOC:"The principle of nondiscrimination in employment because of race, color, religion, sex, or national origin, and the principle that each person subject to Title VII should take voluntary action to correct the effects of past discrimination and to prevent present and future discrimination without awaiting litigation, are mutually consistent and interdependent methods of addressing social and economic conditions which precipitated the enactment of Title VII. Voluntary affirmative action to improve opportunities for minorities and women must be encouraged and protected in order to carry out the Congressional intent embodied in Title VII."§ 1608.1(c) (footnote omitted).It is equally clear that the voluntary action available to employers and unions seeking to eradicate race discrimination may include reasonable race-conscious relief that benefits individuals who were not actual victims of discrimination. This was the holding of Steelworkers v. Weber, 443 U. S. 193 (1979). In Weber, an employer and a union agreed in collective bargaining to reserve for black employees 50% of the openings in an in-plant, craft-training program until the percentage of black craftworkers in the plant was commensurate with the percentage of blacks in the local labor force. After considering both the purposes of Title VII and its legislative history, we concluded that"[i]t would be ironic indeed if a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had 'been excluded from the American dream for so long' constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy."Id. at 443 U. S. 204 (citation omitted). Accordingly, we held that Title VII permits employers and unions voluntarily to make use of reasonable race-conscious affirmative action, although we left to another day the task of Page 478 U. S. 517 defin[ing] in detail the line of demarcation between permissible and impermissible affirmative action plans." Id. at 443 U. S. 208.Of course, Weber involved a purely private contractual agreement, rather than a consent decree. But, at least at first blush, there does not seem to be any reason to distinguish between voluntary action taken in a consent decree and voluntary action taken entirely outside the context of litigation. [Footnote 8] Indeed, in Carson v. American Brands, Inc., 450 U. S. 79, 450 U. S. 88, n. 14 (1981), we held that a District Court's order denying entry of a consent decree is appealable under 28 U.S.C. § 1292(a)(1) because such an order undermines Congress' "strong preference for encouraging voluntary settlement of employment discrimination claims" under Title VII. Moreover, the EEOC's guidelines concerning "Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964," 29 CFR pt. 1608 (1985), plainly contemplate the Page 478 U. S. 518 use of consent decrees as an appropriate form of voluntary affirmative action. See, e.g., § 1608.8. [Footnote 9] True, these guidelines do not have the force of law, General Electric Co. v. Gilbert, 429 U. S. 125, 429 U. S. 141 (1976), but still they "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.'" Id. at 429 U. S. 142 (quoting Skidmore v. Swift & Co., 323 U. S. 134, 323 U. S. 140 (1944)). Therefore, absent some contrary indication, there is no reason to think that voluntary, race-conscious affirmative action such as was held permissible in Weber is rendered impermissible by Title VII simply because it is incorporated into a consent decree.Local 93 and the United States find a contrary indicator in § 706(g), which governs the courts' remedial power under Title VII. They contend that § 706(g) establishes an independent limitation on what courts -- as opposed to employers or unions -- can do, prohibiting any "order of the court" from providing relief that may benefit nonvictims. They argue that a consent decree should be treated as an "order" within the meaning of § 706(g) because it possesses the legal force and character of a judgment decreed after a trial. They rely for this conclusion on several characteristics of consent decrees: first, that a consent decree looks like and is entered as a judgment; second, that the court retains the power to modify a consent decree in certain circumstances over the objection of a signatory, see United States v. Swift & Co., 286 U. S. 106, 286 U. S. 114 (1932) (Swift II); third, that noncompliance with a consent decree is enforceable by citation for contempt of court, see United States v. City of Miami, 664 F.2d 435, 440, and n. 8 (CA5 1981) (opinion of Rubin, J.). Page 478 U. S. 519To be sure, consent decrees bear some of the earmarks of judgments entered after litigation. At the same time, because their terms are arrived at through mutual agreement of the parties, consent decrees also closely resemble contracts. See United States v. ITT Continental Baking Co., 420 U. S. 223, 420 U. S. 235-237 (1975); United States v. Armour & Co., 402 U. S. 673 (1971). More accurately, then, as we have previously recognized, consent decrees "have attributes both of contracts and of judicial decrees," a dual character that has resulted in different treatment for different purposes. United States v. ITT Continental Baking Co., supra, at 420 U. S. 235-237, and n. 10. The question is not whether we can label a consent decree as a "contract" or a "judgment," for we can do both. The question is whether, given their hybrid nature, consent decrees implicate the concerns embodied in § 706(g) in such a way as to require treating them as "orders" within the meaning of that provision.Because this Court's cases do not treat consent decrees as judicial decrees in all respects and for all purposes, we think that the language of § 706(g) does not so clearly include consent decrees as to preclude resort to the voluminous legislative history of Title VII. The issue is whether, when Congress used the phrase "[n]o order of the court shall require" in § 706(g), it unmistakably intended to refer to consent decrees. In addition to the fact that consent decrees have contractual as well as judicial features, the use of the verb "require" in § 706(g) suggests that it was the coercive aspect of a judicial decree that Congress had in mind. We turn therefore to the legislative history, since the language of § 706(g) does not clearly settle the matter.The conclusion in Weber that "Congress chose not to forbid all voluntary race-conscious affirmative action" when it enacted Title VII was largely based upon the legislative history, which shows that Congress was particularly concerned to avoid undue federal interference with managerial discretion. Weber, 443 U.S. at 443 U. S. 205-207. As originally enacted, Page 478 U. S. 520 Title VII regulated only private enterprises; the liberal Republicans and Southern Democrats whose support was crucial to obtaining passage of the bill expressed misgivings about the potential for Government intrusion into the managerial decisions of employers and unions beyond what was necessary to eradicate unlawful discrimination. Id. at 443 U. S. 206. Their votes were obtained only after they were given assurances that "management prerogatives, and union freedoms are to be left undisturbed to the greatest extent possible." H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 29 (1963). See also 110 Cong.Rec. 1518 (1964) (remarks of Rep. Celler); id. at 11471 (remarks of Sen. Javits); id. at 14314 (remarks of Sen. Miller); id. at 15893 (remarks of Rep. McCulloch). As one commentator points out, rather than seeking to outlaw voluntary affirmative action, the more conservative proponents of Title VII who held the balance of power in 1964 "were far more concerned to avoid the intrusion into business autonomy that a rigid color-blind standard would entail." Note, Preferential Relief Under Title VII, 65 Va.L.Rev. 729, 771, n. 224 (1979). See also Weber, supra, at 443 U. S. 207-208, n. 7 (quoting 110 Cong.Rec. 15893 (1964) (remarks of Rep. MacGregor)) (Congress was not legislating about "preferential treatment or quotas in employment'" because it believed that "`the problems raised by these controversial questions are more properly handled at a governmental level closer to the American people, and by communities and individuals themselves"').The legislative history pertaining specifically to § 706(g) suggests that it was drafted with this concern in mind, and, in fact, that a principal purpose of the last sentence of § 706(g) was to protect managerial prerogatives of employers and unions. [Footnote 10] See H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, Page 478 U. S. 521 p. 11 (1963) (first version of § 706(g) preserving employer defense of "cause"); 110 Cong.Rec. 2567-2571 (1964) (amending this version to substitute for "any reason other than discrimination" in place of "cause"); id. at 2567 (remarks of Rep. Celler, the amendment's sponsor, that the amendment's purpose was "to specify cause"); id. at 6549 (remarks of Sen. Humphrey that § 706(g) makes clear "that employers may hire and fire, promote and refuse to promote for any reason, good or bad" except when such decisions violate the substantive provisions of Title VII). Thus, whatever the extent of the limits § 706(g) places on the power of the federal courts to compel employers and unions to take certain actions that the employers or unions oppose and would not otherwise take, § 706(g), by itself, does not restrict the ability of employers or unions to enter into voluntary agreements providing for race-conscious remedial action. The limits on such agreements must be found outside § 706(g). [Footnote 11]From this, it is readily apparent that consent decrees are not included among the "orders" referred to in § 706(g), for the voluntary nature of a consent decree is its most fundamental Page 478 U. S. 522 characteristic. See United States v. ITT Continental Baking Co., 420 U.S. at 420 U. S. 235-237; United States v. Armour & Co., 402 U. S. 673 (1971); Hughes v. United States, 342 U. S. 353 (1952); United States v. Atlantic Refining Co., 360 U. S. 19 (1959); Ashley v. City of Jackson, 464 U. S. 900, 902 (1983) (REHNQUIST, J., dissenting from denial of certiorari). As we observed in United States v. Armour & Co.:"Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms. The parties waive their right to litigate the issues involved in the case, and thus save themselves the time, expense, and inevitable risk of litigation. Naturally, the agreement reached normally embodies a compromise; in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation. Thus, the decree itself cannot be said to have a purpose; rather, the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve."402 U.S. at 402 U. S. 681-682 (emphasis in original) (footnote omitted). Indeed, it is the parties' agreement that serves as the source of the court's authority to enter any judgment at all. See United States v. Ward Baking Co., 376 U. S. 327 (1964) (cannot enter consent decree to which one party has not consented); Ashley v. City of Jackson, supra, at 902 (REHNQUIST, J., dissenting from denial of certiorari). More importantly, it is the agreement of the parties, rather than the force of the law upon which the complaint was originally based, that creates the obligations embodied in a consent decree. Consequently, whatever the limitations Congress placed in § 706(g) on the power of federal courts to impose obligations on employers or unions to remedy violations of Page 478 U. S. 523 Title VII, these simply do not apply when the obligations are created by a consent decree.The features of consent decrees designated by the Union and the United States do not require a contrary result. The fact that a consent decree looks like a judgment entered after a trial obviously does not implicate Congress' concern with limiting the power of federal courts unilaterally to require employers or unions to make certain kinds of employment decisions. The same is true of the court's conditional power to modify a consent decree; the mere existence of an unexercised power to modify the obligations contained in a consent decree does not alter the fact that those obligations were created by agreement of the parties, rather than imposed by the court. [Footnote 12] Finally, we reject the argument that a consent decree should be treated as an "order" within the meaning of § 706(g) because it can be enforced by a citation for contempt. There is no indication in the legislative history that the availability of judicial enforcement of an obligation, rather than the creation of the obligation itself, was the focus of congressional concern. In fact, judicial enforcement is available whether race-conscious relief is provided in a collective bargaining agreement (as in Weber) or in a consent decree; only the form of that enforcement is different. But the difference between contractual remedies and the contempt power is not significant in any relevant sense with respect to § 706(g). For the choice of an enforcement scheme -- whether to rely on contractual remedies or to have an agreement entered as a consent decree -- is itself made voluntarily by the parties. [Footnote 13] Thus, it does not implicate Page 478 U. S. 524 Congress' concern that federal courts not impose unwanted obligations on employers and unions any more than the decision to institute race-conscious affirmative action in the first place; in both cases, the parties have themselves created obligations and surrendered claims in order to achieve a mutually satisfactory compromise.IIIRelying upon Firefighters v. Stotts, 467 U. S. 561 (1984), and Railway Employees v. Wright, 364 U. S. 642 (1961), Local 93 -- again joined by the United States -- contends that we have recognized as a general principle that a consent decree cannot provide greater relief than a court could have decreed after a trial. They urge that, even if § 706(g) does not directly invalidate the consent decree, that decree is nonetheless void because the District Court "would have been powerless to order [such an injunction] under Title VII, had the matter actually gone to trial." Brief for Petitioner 17. Page 478 U. S. 525We concluded above that voluntary adoption in a consent decree of race-conscious relief that may benefit nonvictims does not violate the congressional objectives of § 706(g). It is therefore hard to understand the basis for an independent judicial canon or "common law" of consent decrees that would give § 706(g) the effect of prohibiting such decrees anyway. To be sure, a federal court is more than "a recorder of contracts" from whom parties can purchase injunctions; it is "an organ of government constituted to make judicial decisions. . . ." 1B J. Moore, J. Lucas, & T. Currier, Moore's Federal Practice � 0.409[5], p. 331 (1984) (hereinafter Moore). Accordingly, a consent decree must spring from and serve to resolve a dispute within the court's subject matter jurisdiction. Furthermore, consistent with this requirement, the consent decree must "com[e] within the general scope of the case made by the pleadings," Pacific R. Co. v. Ketchum, 101 U. S. 289, 101 U. S. 297 (1880), and must further the objectives of the law upon which the complaint was based, EEOC v. Safeway Stores, Inc., 611 F.2d 795, 799 (CA10 1979), cert. denied sub nom. Courtwright v. EEOC, 446 U.S. 952 (1980); Citizens for a Better Environment v. Gorsuch, 231 U.S.App.D.C. 79, 87, 90, 718 F.2d 1117, 1125, 1128 (1983), cert. denied sub nom. Union Carbide Corp. v. Natural Resources Defense Council, Inc., 467 U.S. 1219 (1984). However, in addition to the law which forms the basis of the claim, the parties' consent animates the legal force of a consent decree. See Pacific R. Co. v. Ketchum, supra; Citizens for a Better Environment v. Gorsuch, supra, at 89-90, 718 F.2d at 1127-1128; Note, The Consent Judgment as an Instrument of Compromise and Settlement, 72 Harv.L.Rev. 1314, 1317 (1959). Therefore, a federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial. See, e.g., Pacific R. Co. v. Ketchum, supra, at 101 U. S. 295-297; Swift & Co. v. United States, 276 U. S. 311, 276 U. S. 327-331 (1928) (Swift I) (Brandeis, J.); EEOC v. Safeway Page 478 U. S. 526 Stores, Inc., supra, at 799-800; Citizens for a Better Environment v. Gorsuch, supra, at 89-91, 718 F.2d at 1127-1130; Sansom Committee v. Lynn, 735 F.2d 1535, 1538-1539 (CA3), cert. denied, 469 U.S. 1017 (1984); Turner v. Orr, 759 F.2d 817, 825-826 (CA8 1985).This is not to say that the parties may agree to take action that conflicts with or violates the statute upon which the complaint was based. As noted above, the fact that the parties have consented to the relief contained in a decree does not render their action immune from attack on the ground that it violates § 703 of Title VII or the Fourteenth Amendment. However, inasmuch as the limits placed by § 706(g) on the remedial authority of a federal court -- whatever these may be -- are not implicated by voluntary agreements, there is no conflict with or violation of § 706(g) when a federal court enters a consent decree that provides such relief. Accordingly, to the extent that the consent decree is not otherwise shown to be unlawful, the court is not barred from entering a consent decree merely because it might lack authority under § 706(g) to do so after a trial.This simply was not the case in either Railway Employees v. Wright or Firefighters v. Stotts, in both of which the Court found conflicts between a judicial decree and the underlying statute. In Wright, a railroad and the unions representing most of its employees were charged with discriminating against nonunion employees in violation of the Railway Labor Act, 45 U.S.C. § 151 et seq. The parties entered a consent decree that prohibited, among other things, the establishment of a union shop, a restriction that was also contained in the Railway Labor Act at the time. When the Act was amended several years later to permit union shops, the unions moved to modify the consent decree; their motion was opposed by the plaintiffs and by the railroad. This Court reversed the District Court's denial of this motion, holding that refusal to modify the consent decree constituted an abuse of discretion under the circumstances. The Court recognized Page 478 U. S. 527 that the District Court retained power to modify the consent decree, and that "a sound judicial discretion" may call for such modification "if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have arisen." 364 U.S. at 364 U. S. 646-647. Because it viewed the intervening amendment of the Railway Labor Act as rendering the consent decree incompatible with the terms of the Act, the Court regarded as "established" the conclusion that, had the decree represented relief awarded after trial, it would have been an abuse of discretion to deny modification. Id. at 364 U. S. 648-650. This left only the question whether "th[e] result [is] affected by the fact that we are dealing with a consent decree." Id. at 364 U. S. 648-650. Citing Swift II for the proposition that the power to modify a consent decree is the same as the power to modify a litigated decree, the Court held that a District Court "must . . . be free to modify the terms of the consent decree when a change in law brings those terms in conflict with statutory objectives." 364 U.S. at 364 U. S. 650-651.Firefighters v. Stotts, 467 U. S. 561 (1984), also involved a consent decree that the Court concluded was in conflict with the underlying statute, in that case, Title VII. The plaintiffs and the city of Memphis entered into a consent decree that included the use of racial preferences for hiring and promoting firefighters. After the decree had been in effect for just over a year, budget deficits forced Memphis to lay off a number of firefighters. Because layoffs pursuant to Memphis' "last hired, first fired" rule would undo the gains made by minority firefighters under the decree, the plaintiffs sought and obtained an injunction requiring Memphis to modify its seniority rules to protect new black employees. We reversed. We held, first, that the injunction could not be upheld as merely enforcing the terms of the consent decree. Id. at 467 U. S. 572-576. The plaintiffs argued, in the alternative, that the injunction was justified by the change in circumstances brought about by the budget deficits, and that it thus constituted a proper modification of the decree. We rejected this argument, Page 478 U. S. 528 reasoning that "the District Court's authority to impose a modification of a decree is not wholly dependent on the decree," but must also be consistent with the underlying statute. Id. at 467 U. S. 576, n. 9. Noting that the Court in Wright"held that, when a change in the law brought the terms of the decree into conflict with the statute pursuant to which the decree was entered, the decree should be modified over the objections of one of the parties bound by the decree,"we reasoned:"By the same token, and for the same reason, a district court cannot enter a disputed modification of a consent decree in Title VII litigation if the resulting order is inconsistent with that statute."467 U.S. at 467 U. S. 576, n. 9. Because we concluded that the District Court would have been precluded by Title VII from issuing an injunction such as the one it had issued after a trial, id. at 467 U. S. 577-583, we rejected the plaintiffs' argument and held that "the District Court was precluded from granting such relief over the City's objection" by modifying the consent decree, id. at 467 U. S. 576-577, n. 9.Because § 706(g) is not concerned with voluntary agreements by employers or unions to provide race-conscious relief, there is no inconsistency between it and a consent decree providing such relief, although the court might be barred from ordering the same relief after a trial or, as in Stotts, in disputed proceedings to modify a decree entered upon consent.IVLocal 93 and the United States also challenge the validity of the consent decree on the ground that it was entered without the consent of the Union. They take the position that, because the Union was permitted to intervene as of right, its consent was required before the court could approve a consent decree. This argument misconceives the Union's rights in the litigation.A consent decree is primarily a means by which parties settle their disputes without having to bear the financial and other costs of litigating. It has never been supposed that Page 478 U. S. 529 one party -- whether an original party, a party that was joined later, or an intervenor -- could preclude other parties from settling their own disputes, and thereby withdrawing from litigation. Thus, while an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent. See Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 455 U. S. 392, 455 U. S. 400 (1982); Kirkland v. New York State Dept. of Correctional Services, 711 F.2d 1117, 1126 (CA2 1983), cert. denied, 465 U.S. 1005 (1984). Here, Local 93 took full advantage of its opportunity to participate in the District Court's hearings on the consent decree. It was permitted to air its objections to the reasonableness of the decree and to introduce relevant evidence; the District Court carefully considered these objections, and explained why it was rejecting them. Accordingly, "the District Court gave the union all the process that it was due. . . ." Zipes, supra, at 455 U. S. 400.Of course, parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and, a fortiori, may not impose duties or obligations on a third party, without that party's agreement. A court's approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting intervenors; if properly raised, these claims remain, and may be litigated by the intervenor. 3B Moore � 24.16[6], p. 181; see also, United States Steel Corp. v. EPA, 614 F.2d 843, 845-846 (CA3 1979); Wheeler v. American Home Products Corp., 563 F.2d 1233, 1237-1238 (CA5 1977). And, of course, a court may not enter a consent decree that imposes obligations on a party that did not consent to the decree. See, e.g., United States v. Ward Baking Co., 376 U. S. 327 (1964); Hughes v. United States, 342 U. S. 353 (1952); Ashley v. City of Jackson, 464 U.S. at 902 (REHNQUIST, J., dissenting from denial of certiorari); 1B Moore � 0.409[5], p. 326, n. 2. However, the consent decree entered here does not Page 478 U. S. 530 bind Local 93 to do or not to do anything. It imposes no legal duties or obligations on the Union at all; only the parties to the decree can be held in contempt of court for failure to comply with its terms. See United States v. Armour & Co., 402 U.S. at 402 U. S. 676-677. Moreover, the consent decree does not purport to resolve any claims the Union might have under the Fourteenth Amendment, see Wygant v. Jackson Board of Education, 476 U. S. 267 (1986), under § 703 of Title VII, see McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 (1976); Steelworkers v. Weber, 443 U. S. 193 (1979), or as a matter of contract, see W. R. Grace & Co. v. Rubber Workers, 461 U. S. 757 (1983). Indeed, despite the efforts of the District Judge to persuade it to do so, the Union failed to raise any substantive claims. Whether it is now too late to raise such claims, or -- if not -- whether the Union's claims have merit, are questions that must be presented in the first instance to the District Court, which has retained jurisdiction to hear such challenges. The only issue before us is whether § 706(g) barred the District Court from approving this consent decree. We hold that it did not. Therefore, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtFirefighters v. City of Cleveland, 478 U.S. 501 (1986)Local Number 93, International Association of Firefighters, AFL-CIO, C.L.C.v . City of ClevelandNo. 84-1999Argued February 25, 1986Decided July 2, 1986478 U.S. 501SyllabusThe Vanguards, an organization of black and Hispanic firefighters employed by respondent city of Cleveland, filed a class action in Federal District Court charging the city and various city officials with discrimination on the basis of race and national origin in hiring, assigning, and promoting firefighters in violation of, inter alia, Title VII of the Civil Rights Act of 1964. Petitioner labor union, which represents a majority of the city's firefighters, was permitted to intervene as a party plaintiff. Over petitioner's objection, the court adopted a consent decree that provided for the use of race-conscious relief and other affirmative action in promoting firefighters. The Court of Appeals affirmed.Held. Section 706(g) of Title VII does not preclude entry of a consent decree, such as was entered in this case, that may benefit individuals who were not the actual victims of the defendant's discriminatory practices; whether or not § 706(g) precludes a court from imposing certain forms of race-conscious relief after trial, it does not apply to relief awarded in a consent decree. Pp. 478 U. S. 515-530.(a) Congress intended that voluntary compliance be the preferred means of achieving Title VII's objectives. Voluntary action available to employers and unions seeking to eradicate race discrimination may include reasonable race-conscious relief that benefits individuals who are not actual victims of that discrimination. Steelworkers v. Weber, 443 U. S. 193. Absent some contrary indication, there is no reason why such voluntary action is rendered impermissible by Title VII simply because it is incorporated into a consent decree. No such contrary indication is provided by § 706(g)'s last sentence, which precludes a district court from entering an order requiring the hiring or promotion of an individual who was refused employment or promotion for any reason other than discrimination. Whatever the extent of the limits Congress placed in § 706(g)'s last sentence on the power of federal courts to impose obligations on employers or unions to remedy violations of Title VII, § 706(g) by itself does not restrict the ability of employers or unions to enter into voluntary agreements providing race-conscious relief. Because the voluntary nature of a consent decree is its most fundamental Page 478 U. S. 502 characteristic, it is apparent that consent decrees are not included among the "orders" referred to in § 706(g). The party's agreement, rather than the force of law upon which the complaint was originally based, creates the obligations embodied in a consent decree. Pp. 478 U. S. 515-524.(b) A federal court is not necessarily barred from entering a consent decree merely because the decree provides broader relief than the court could have awarded after a trial. Inasmuch as the limits placed by § 706(g) on the remedial authority of a federal court -- whatever these may be -- are not implicated by voluntary agreements, there is no conflict with or violation of § 706(g) when a federal court enters a consent decree that provides such relief. Firefighters v. Stotts, 467 U. S. 561, and Railway Employees v. Wright, 364 U. S. 642, distinguished. Pp. 478 U. S. 524-528.(c) The fact that the consent decree in this case was entered without petitioner's consent does not affect its validity. While an intervenor is entitled to present evidence and have its objections heard at the hearings on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent. The consent decree here does not bind petitioner to do or not do anything. It imposes no legal duties or obligations on petitioner, and does not purport to resolve any other claims petitioner might have under the Fourteenth Amendment, § 703 of Title VII, or as a matter of contract. Whether it is too late to raise such claims, or, if not, whether the claims have any merit, are questions that must be presented in the first instance to the District Court, which has retained jurisdiction to hear such challenges. Pp. 478 U. S. 528-530.753 F.2d 479, affirmed.BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 478 U. S. 530. WHITE, J., filed a dissenting opinion, post, p. 478 U. S. 531. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C J., joined, post, p. 478 U. S. 535. Page 478 U. S. 504

1967_618

MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner, Fortnightly Corporation, owns and operates community antenna television (CATV) systems in Clarksburg and Fairmont, West Virginia. [Footnote 1] There were no local television broadcasting stations in that immediate area until 1957. Now there are two, but, because of hilly terrain, most residents of the area cannot receive the broadcasts of any additional stations by ordinary rooftop antennas. Some of the residents have joined in Page 392 U. S. 392 erecting larger cooperative antennas in order to receive more distant stations, but a majority of the householders in both communities have solved the problem by becoming customers of the petitioner's CATV service. [Footnote 2]The petitioner's systems consist of antennas located on hills above each city, with connecting coaxial cables, strung on utility poles, to carry the signals received by the antennas to the home television sets of individual subscribers. The systems contain equipment to amplify and modulate the signals received, and to convert them to different frequencies, in order to transmit the signals efficiently while maintaining and improving their strength. [Footnote 3]During 1960, when this proceeding began, the petitioner's systems provided customers with signals of five television broadcasting stations, three located in Pittsburgh, Pennsylvania; one in Steubenville, Ohio, and one in Wheeling, West Virginia. [Footnote 4] The distance between those cities and Clarksburg and Fairmont ranges from 52 to 82 miles. [Footnote 5] The systems carried all the programming of each of the five stations, and a customer could choose any of the five programs he wished to view by simply turning the knob on his own television set. The petitioner neither edited the programs received nor originated any programs of its own. [Footnote 6] The petitioner's customers Page 392 U. S. 393 were charged a flat monthly rate regardless of the amount of time that their television sets were in use. [Footnote 7]The respondent, United Artists Television, Inc., holds copyrights on several motion pictures. During the period in suit, the respondent (or its predecessor) granted various licenses to each of the five television stations in question to broadcast certain of these copyrighted motion pictures. Broadcasts made under these licenses were received by the petitioner's Clarksburg and Fairmont CATV systems and carried to its customers. At no time did the petitioner (or its predecessors) obtain a license under the copyrights from the respondent or from any of the five television stations. The licenses granted by the respondent to the five stations did not authorize carriage of the broadcasts by CATV systems, and, in several instances, the licenses specifically prohibited such carriage.The respondent sued the petitioner for copyright infringement in a federal court, asking damages and injunctive relief. The issue of infringement was separately tried, and the court ruled in favor of the respondent. 255 F. Supp. 177. On interlocutory appeal under 28 U.S.C. § 1292(b), the Court of Appeals for the Second Circuit affirmed. 377 F.2d 872. We granted certiorari, 389 U.S. 969, to consider an important question under the Copyright Act of 1909, 35 Stat. 1075, as amended, 17 U.S.C. 1 et seq.The Copyright Act does not give a copyright holder control over all uses of his copyrighted work. [Footnote 8] Instead, Page 392 U. S. 394 § 1 of the Act enumerates several "rights" that are made "exclusive" to the holder of the copyright. [Footnote 9] If a person, without authorization from the copyright holder, puts a Page 392 U. S. 395 copyrighted work to a use within the scope of one of these "exclusive rights," he infringes the copyright. If he puts the work to a use not enumerated in § 1, he does not infringe. [Footnote 10] The respondent's contention is that the petitioner's CATV systems infringed the respondent's § 1(c) exclusive right to "perform . . . in public for profit" (nondramatic literary works) [Footnote 11] and its § 1(d) exclusive right to "perform . . . publicly" (dramatic works). [Footnote 12] The petitioner maintains that its CATV systems did not "perform" the copyrighted works at all. [Footnote 13]At the outset, it is clear that the petitioner's systems did not "perform" the respondent's copyrighted works in any conventional sense of that term, [Footnote 14] or in any manner envisaged by the Congress that enacted the law in 1909. [Footnote 15] But our inquiry cannot be limited to ordinary meaning and legislative history, for this is a statute that was drafted long before the development of the electronic phenomena with which we deal here. [Footnote 16] In 1909, radio Page 392 U. S. 396 itself was in its infancy, and television had not been invented. We must read the statutory language of 60 years ago in the light of drastic technological change. [Footnote 17] The Court of Appeals thought that the controlling question in deciding whether the petitioner's CATV systems "performed" the copyrighted works was: "[H]ow much did the [petitioner] do to bring about the viewing and hearing of a copyrighted work?" 377 F.2d at 877. Applying this test, the court found that the petitioner did "perform" the programs carried by its systems. [Footnote 18] But Page 392 U. S. 397 mere quantitative contribution cannot be the proper test to determine copyright liability in the context of television broadcasting. If it were, many people who make large contributions to television viewing might find themselves liable for copyright infringement -- not only the apartment house owner who erects a common antenna for his tenants, but the shopkeeper who sells or rents television sets, and, indeed, every television set manufacturer. Rather, resolution of the issue before us depends upon a determination of the function that CATV plays in the total process of television broadcasting and reception.Television viewing results from combined activity by broadcasters and viewers. Both play active and indispensable roles in the process; neither is wholly passive. The broadcaster selects and procures the program to be viewed. He may produce it himself, whether "live" or with film or tape, or he may obtain it from a network or some other source. He then converts the visible images and audible sounds of the program into electronic signals, [Footnote 19] and broadcasts the signals at radio frequency for public reception. [Footnote 20] Members of the public, by means of television sets and antennas that they themselves provide, receive the broadcaster's signals and reconvert Page 392 U. S. 398 them into the visible images and audible sounds of the program. The effective range of the broadcast is determined by the combined contribution of the equipment employed by the broadcaster and that supplied by the viewer. [Footnote 21]The television broadcaster in one sense does less than the exhibitor of a motion picture or stage play; he supplies his audience not with visible images, but only with electronic signals. The viewer, conversely, does more than a member of a theater audience; he provides the equipment to convert electronic signals into audible sound and visible images. Despite these deviations from the conventional situation contemplated by the framers of the Copyright Act, [Footnote 22] broadcasters have been judicially treated as exhibitors, and viewers as members of a theater audience. Broadcasters perform. [Footnote 23] Viewers do not perform. [Footnote 24] Thus, while both broadcaster and viewer play crucial roles in the total television process, a line is drawn Page 392 U. S. 399 between them. One is treated as active performer; the other, as passive beneficiary.When CATV is considered in this framework, we conclude that it falls on the viewer's side of the line. [Footnote 25] Essentially, a CATV system no more than enhances the viewer's capacity to receive the broadcaster's signals; it provides a well located antenna with an efficient connection to the viewer's television set. [Footnote 26] It is true that a CATV system plays an "active" role in making reception possible in a given area, but so do ordinary television sets and antennas. CATV equipment is powerful and sophisticated, but the basic function the equipment serves is little different from that served by the equipment generally furnished by a television viewer. [Footnote 27] Page 392 U. S. 400 If an individual erected an antenna on a hill, strung a cable to his house, and installed the necessary amplifying equipment, he would not be "performing" the programs he received on his television set. The result would be no different if several people combined to erect a cooperative antenna for the same purpose. The only difference in the case of CATV is that the antenna system is erected and owned not by its users, but by an entrepreneur.The function of CATV systems has little in common with the function of broadcasters. [Footnote 28] CATV systems do not, in fact, broadcast or rebroadcast. [Footnote 29] Broadcasters select the programs to be viewed; CATV systems simply carry, without editing, whatever programs they receive. Broadcasters procure programs and propagate them to the public; CATV systems receive programs that have been released to the public and carry them by private channels to additional viewers. We hold that CATV Page 392 U. S. 401 operators, like viewers and unlike broadcasters, do not perform the programs that they receive and carry. [Footnote 30]We have been invited by the Solicitor General in an amicus curiae brief to render a compromise decision in this case that would, it is said, accommodate various competing considerations of copyright, communications, and antitrust policy. [Footnote 31] We decline the invitation. [Footnote 32] That job is for Congress. [Footnote 33] We take the Copyright Act of 1909 Page 392 U. S. 402 as we find it. With due regard to changing technology, we hold that the petitioner did not, under that law, "perform" the respondent's copyrighted works.The judgment of the Court of Appeals is Reversed

U.S. Supreme CourtFortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968)Fortnightly Corp. v. United Artists Television, Inc.No. 618Argued March 13, 1968Decided June 17, 1968392 U.S. 390SyllabusPetitioner operates community antenna television (CATV) systems which receive, amplify, and modulate signals from five television stations, convert them to different frequencies, and transmit them to their subscribers' television sets. Petitioner does not edit the programs or originate any programs of its own. Respondent, which owns copyrights on several motion pictures, had licensed the five television stations to broadcast certain of these films. The licenses did not authorize carriage of the broadcasts by CATV, and in some instances specifically prohibited such carriage. Respondent sued petitioner, which had no copyright license from either respondent or the television stations, for copyright infringement, claiming violation of its exclusive rights under §§ 1(c) and (d) of the Copyright Act of 1909, to "perform . . . in public for profit" (nondramatic literary works) and to "perform . . . publicly" (dramatic works). Petitioner maintained that it did not "perform" the copyrighted works at all. The District Court ruled for respondent on the infringement issue, which was tried separately, and the Court of Appeals affirmed.Held. Judicial construction of the Copyright Act, in the light of drastic technological changes, has treated broadcasters as exhibitors, who "perform," and viewers as members of the audience, who do not "perform," and, since petitioner's CATV systems basically do no more than enhance the viewers' capacity to receive the broadcast signals, the CATV systems fall within the category of viewers, and petitioner does not "perform" the programs that its systems receive and carry. Pp. 392 U. S. 395-402.377 F.2d 872, reversed. Page 392 U. S. 391

1974_73-689

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether, in a state civil proceeding, a lawyer may be cited for contempt for advising his client, a party to the litigation, that the client may refuse on Fifth Amendment grounds to produce subpoenaed material.IPetitioner is a lawyer. In January, 1973, his client was convicted before a Municipal Court in the city of Temple, Texas, of selling seven obscene magazines in violation of a Temple ordinance. Six days later, the client, Michael McKelva, was served by a Bell County deputy sheriff with a subpoena duces tecum directing him to produce 52 magazines before the 169th Judicial District Court. The titles of the magazines were given, but no other description was contained in the warrant.Under the Texas Penal Code, [Footnote 1] upon application by Page 419 U. S. 451 any city attorney the district courts may issue injunctions to prevent illegal distribution of obscene matter. The subpoena here was requested by the Temple City Attorney in order to obtain such an injunction. Besides commanding production of the magazines, it ordered petitioner's client to appear at a hearing on February 1, 1973, and give testimony.McKelva appeared represented by petitioner and an associate, Karl A. Maley. Earlier, Maley had filed a written motion to quash the subpoena. The motion claimed, inter alia, that the issuance of the subpoena was merely an attempt to require materials and testimony in violation of McKelva's constitutional right not to incriminate himself.At the hearing, petitioner orally argued the motion to quash. He, too, contended that the city was attempting, through a civil proceeding, to discover evidence which properly should be discovered, if at all, through criminal process. He freely admitted that the magazines dealt explicitly with acts of a sexual nature, and that they were "of the same character" as the magazines for distribution Page 419 U. S. 452 of which McKelva previously had been convicted. [Footnote 2] Thus, he argued, it was quite clear that a "substantial possibility of self-incrimination" existed if McKelva was required to produce the magazines. Petitioner foresaw possible criminal prosecution either under the Temple ordinance [Footnote 3] again, or under Art. 527 itself.Although petitioner claimed the Fifth Amendment's protection was available in any proceeding whether civil or criminal, he also urged that, under the circumstances, the injunctive proceeding for which the magazines were subpoenaed was quasi-criminal in nature. He noted that it was brought under the Penal Code of Texas and concluded that the city should secure a search warrant, describing with particularity the magazines it desired produced.The City Attorney responded that the proceeding was purely civil, and that "there is no contention on the part of the City or any attempt on the part of the City to get any evidence for any criminal prosecution," and thus any material produced would not be incriminating. Further, he maintained, because there "are no criminal sanctions . . . , there will be no evidence that would be incriminating under the rules. . . ."In reply, petitioner drew an analogy to tax cases where, he argued, courts have prohibited the Internal Revenue Page 419 U. S. 453 Service from using subpoenas to discover records which might tend to incriminate taxpayers. Petitioner contended that the nature of the proceeding in which evidence is sought is irrelevant to the compass of the Fifth Amendment, and that the character of the material requested is the only relevant inquiry. He asserted that the sole test is whether production of the material would create a substantial probability of criminal prosecution for his client. He noted that the City Attorney's representation that the city is not interested in a criminal prosecution "certainly does not bind, for example, the County Attorney, or anyone else . . . who might be interested in prosecuting such a case."The court then denied the motion to quash and petitioner's client, McKelva, took the stand. In answer to preliminary questions, he gave his name and address and stated that he was the operator of Mike's News in Temple. He admitted to having been served with the subpoena, but when he was asked whether he had brought the magazines, he replied: "[U]nder the advice of Counsel, I refuse to answer on the grounds that it may tend to incriminate me." The City Attorney then moved the court to instruct the witness to answer, and, if he failed to do so, to hold him in contempt. The court asked petitioner's cocounsel what would be a reasonable time to allow for the witness to bring the magazines into court, because the court understood the applicable rule to require time for compliance before a motion for contempt should be entertained. Counsel replied that, according to their position, no time need be allowed, because, in any event, the subpoena would require production of evidence which would tend to incriminate the witness. The court then recessed until the afternoon and instructed the witness to return at that time with the requested magazines. Petitioner's cocounsel said he understood the instruction. Page 419 U. S. 454When the court reconvened, McKelva was recalled, and he responded negatively when the City Attorney asked whether he had made any effort to obtain the subpoenaed magazines. He did, however, acknowledge that he had understood the court's order to bring them. After he indicated that the sole reason for his failure to comply was his belief that, if he did so it would entail a substantial possibility of self-incrimination, the City Attorney again moved for a contempt citation. This time, the court found McKelva in contempt and stated that the failure to respond would be treated as an admission that the subpoenaed magazines are obscene. Petitioner objected, arguing that a person may not be penalized for asserting a constitutional right by way of making an adverse finding against him. The judge replied that no finding had been made, but in view of petitioner's admission that the magazines were of the same nature as those for which his client previously had been convicted, there was justification for treating a refusal to produce them as an admission to be considered with other evidence. [Footnote 4] Petitioner responded that he was obliged to assert that, although the other magazines had been held obscene, the subpoenaed magazines were not.After other testimony was heard, McKelva was again recalled and the court asked him if his disobedience was his own decision, or if it was on the advice of counsel. McKelva replied that it was on the advice of counsel, specifically petitioner and Maley. Petitioner then asked his client whether he would produce the magazines if counsel advised him they were not incriminatory. McKelva replied that he would. This made it clear that, but for the advice of counsel, McKelva would have produced the subpoenaed matter. Page 419 U. S. 455After a short recess, the court ruled the subpoenaed magazines obscene, and enjoined their continued exhibition and sale. Finally, the court held petitioner and his cocounsel in contempt, as well as their client, [Footnote 5] and fixed punishment for each of them at 10 days' confinement and a $200 fine.The judge noted his reluctance to find the attorneys in contempt, stating this was the first time he had ever done so, but he felt that the attorneys had usurped the authority of the court: "This Court has not been permitted to rule on the admissibility of that evidence. You have ruled on it. . . ." Before the hearing ended, however, petitioner stated that he and his cocounsel had not deliberately and intentionally attempted to frustrate the court. Petitioner felt there was merely a philosophical difference between counsel and the court as to the scope of the Fifth Amendment protection. The court responded that the self-incrimination defense could have been reached either by a motion to suppress the evidence after it had been produced for injunctive purposes or by an objection to an attempt to introduce it at a criminal trial.The record shows no indication whatsoever of contumacious conduct on the part of petitioner or his cocounsel. The court appears to have been offended, in a strictly legal sense, only by the lawyers' advice which caused their client to decline on Fifth Amendment grounds to produce subpoenaed material. There is nothing in the record to suggest that petitioner or his cocounsel acted otherwise than in the good faith belief that, if their client produced the materials, he would run a substantial risk of self-incrimination. Page 419 U. S. 456The day the contempt citation was issued petitioner, on behalf of McKelva, applied to the Supreme Court of Texas for an original writ of habeas corpus. The same day, that court denied the application pending further information to complete the record, and then finally denied the writ on February 5, 1973.On February 8, 1973, petitioner filed an application on behalf of McKelva for a writ of habeas corpus in the United States District Court for the Western District of Texas, Waco Division. However, at 10 a.m. that day, the judge who issued the contempt citation ordered McKelva released from custody although he had only served seven of his 10 days. The release was "for good behavior."Pursuant to Texas procedure [Footnote 6] the citation of the attorneys was reviewed by another state district judge, the respondent here, Judge James R. Meyers. A hearing was held on May 11, 1973, with the Texas Attorney General's office appearing in support of the contempt Page 419 U. S. 457 citation. The parties agreed that the burden of proof was on the Attorney General, and also agreed that the record of the injunction hearing would provide the basis for the court's decision.The court noted that it felt that the record supported a finding beyond a reasonable doubt that the client was advised not to bring the materials, and the court was dubious that materials displayed for public sale are protected by the Fifth Amendment. However, the court also stated, "I think it is a very close point." Counsel for petitioner agreed that the record clearly reflected that petitioner had advised his client that he had a Fifth Amendment privilege on the issue, but claimed that it did not reflect that petitioner had instructed him not to bring the subpoenaed materials.On October 1, 1973, Judge Meyers affirmed the finding of contempt, but changed the penalty to a $500 fine with no confinement. It is that judgment which is under review here.Both Texas appellate courts refused to review the judgment. The Texas Court of Criminal Appeals denied petitioner's motion for leave to file an original application for a writ of habeas corpus, and the Supreme Court of Texas also denied a petition for a writ of habeas corpus. Both courts' orders were entered October 11. By order of Judge Meyers, personal recognizance bonds of petitioner and Maley were continued in order that Maley could seek a writ of habeas corpus from the United States District Court for the Western District of Texas and petitioner could petition for a writ of certiorari from this Court.On December 20, 1973, Judge Jack Roberts of the United States District Court for the Western District of Texas, Waco Division, granted Maley's petition for a writ of habeas corpus. He noted that even incorrect Page 419 U. S. 458 orders from courts ordinarily must be obeyed until set aside, but he concluded that McKelva had asserted a valid Fifth Amendment privilege, and therefore neither he nor his lawyer could be held in contempt for asserting that privilege. Since civil and criminal liability under Art. 527 arise from the same act, the judge also concluded that the Fifth Amendment applied even in the injunctive action. Indeed, he noted that the leading case of Boyd v. United States, 116 U. S. 616 (1886), involved forfeiture proceedings which, "though they may be civil in form, are in their nature criminal." Id. at 116 U. S. 634. He held that, since Maley was only acting to protect rights guaranteed by the Constitution to his client, "he cannot be held in contempt."An appeal has been filed from that judgment, and is now pending before the United States Court of Appeals for the Fifth Circuit. On April 15, 1974, we granted the petition for a writ of certiorari, 416 U.S. 934; we are advised that the case is being held pending our decision in this case.IIThe narrow issue in this case is whether a lawyer may be held in contempt for advising his client, during the trial of a civil case, to refuse to produce material demanded by a subpoena duces tecum when the lawyer believes in good faith the material may tend to incriminate his client.We begin with the basic proposition that all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect, the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect. Page 419 U. S. 459 Howat v. Kansas, 258 U. S. 181, 258 U. S. 189-190 (1922); Worden v. Searls, 121 U. S. 14 (1887). The orderly and expeditious administration of justice by the courts requires that"an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings."United States v. Mine Workers, 330 U. S. 258, 330 U. S. 293 (1947). This principle is especially applicable to orders issued during trial. E.g., Illinois v. Allen, 397 U. S. 337 (1970). Such orders must be complied with promptly and completely, for the alternative would be to frustrate and disrupt the progress of the trial with issues collateral to the central questions in litigation. This does not mean, of course, that every ruling by a presiding judge must be accepted in silence. Counsel may object to a ruling. An objection alerts opposing counsel and the court to an issue so that the former may respond and the latter may be fully advised before ruling. United States v. La Franca, 282 U. S. 568, 282 U. S. 570 (1931). But, once the court has ruled, counsel and others involved in the action must abide by the ruling and comply with the court's orders. While claims of error may be preserved in whatever way the applicable rules provide, counsel should neither engage the court in extended discussion once a ruling is made nor advise a client not to comply. [Footnote 7] A lawyer who counsels Page 419 U. S. 460 his client not to comply with a court order during trial would, first, subject his client to contempt, and in addition, if he persisted, the lawyer would be exposed to sanctions for obstructing the trial. Remedies for judicial error may be cumbersome, but the injury flowing from an error generally is not irreparable, and orderly processes are imperative to the operation of the adversary system of justice.When a court during trial orders a witness to reveal information, however, a different situation may be presented. Compliance could cause irreparable injury because appellate courts cannot always "unring the bell" once the information has been released. Subsequent appellate vindication does not necessarily have its ordinary consequence of totally repairing the error. In those situations, we have indicated the person to whom such an order is directed has an alternative:"[W]e have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order and resistance to that order, with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. Cobbledick v. United States, [309 U.S. 323 (1940)]; Alexander v. United States, 201 U. S. 117 (1906); cf. United States v. Blue, 384 U. S. 251 (1966); DiBella v. United States, 369 U. S. 121 (1962); Carroll v. United States, 354 U. S. 394 (197)."United States v. Ryan, 402 U. S. 530, 402 U. S. 532-533 (1971). Page 419 U. S. 461This method of achieving pre-compliance review is particularly appropriate where the Fifth Amendment privilege [Footnote 8] against self-incrimination is involved. The privilege has ancient roots, see, e.g., Brown v. Walker, 161 U. S. 591, 161 U. S. 596-597 (1896); Miranda v. Arizona, 384 U. S. 436, 384 U. S. 458-463 (1966); see especially id. at 384 U. S. 458 n. 27. This Court has always broadly construed its protection to assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action. Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 562 (1892); Arndstein v. McCarthy, 254 U. S. 71, 254 U. S. 72-73 (1920). The protection does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution. Hoffman v. United States, 341 U. S. 479, 341 U. S. 486 (1951). In view of the place this privilege occupies in the Constitution and in our adversary system of justice, as well as the traditional respect for the individual that, undergirds the privilege, the procedure described in Ryan seems an eminently reasonable method to allow pre-compliance review.In the present case, the City Attorney argued that, if petitioner's client produced the magazines, he was amply protected because, in any ensuing criminal action, he could Page 419 U. S. 462 always move to suppress, [Footnote 9] or object on Fifth Amendment grounds to the introduction of the magazines into evidence. Laying to one side possible waiver problems that might arise if the witness followed that course, cf. Rogers v. United States, 340 U. S. 367 (1951), we nevertheless cannot conclude that it would afford adequate protection. Without something more, [Footnote 10] "he would be compelled to surrender the very protection which the privilege is designed to guarantee." Hoffman v. United States, supra, at 341 U. S. 486.Our views as to the effectiveness of a later objection or motion to suppress do not conflict with United States v. Blue, 384 U. S. 251 (1966). There we said:"Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would, at most, be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial."Id. at 384 U. S. 255. But the crucial distinction between that case and the instant question is that there the Government indeed "did acquire" the information. Blue had turned it over Page 419 U. S. 463 during a civil investigation without asserting the Fifth Amendment privilege. Here, on the contrary, petitioner's client had not yet delivered the subpoenaed material, and he consistently and vigorously asserted his privilege. Here, the "cat" was not yet "out of the bag," and reliance upon a later objection or motion to suppress would "let the cat out" with no assurance whatever of putting it back.Thus, in advising his client to resist and risk a contempt citation, thereby allowing pre-compliance appellate review of the claim, petitioner counseled a familiar procedure. Although it is clear that noncompliance risked both an immediate contempt citation and a final criminal contempt judgment against the witness if, on appeal, petitioner's advice proved to be wrong, the issue here is whether petitioner, as counsel, can be penalized for good faith advice to claim the privilege.It appears that here, the trial judge rejected the Fifth Amendment claim primarily because it was raised in a civil, [Footnote 11] and not a criminal, case. The City Attorney relied most heavily on that distinction in his argument in opposition to the motion to quash. [Footnote 12] Just as vigorously, petitioner contended that the privilege against self-incrimination protected his client regardless of the nature of the proceeding. He said:"It is very clear that the coverage of the Fifth Amendment is not to be determined by the nature of the proceeding in which it is asserted. The Fifth Page 419 U. S. 464 Amendment applies to all proceedings, to injunctive proceedings, to administrative proceedings, and to criminal proceedings. It applies to interrogation by Police Officers out of Court. It applies across the board. We are not talking about the context of the proceedings in which the privilege against self-incrimination is asserted. We are talking about the character of material that is sought to be taken from the person who is subject to the subpoena."". . . [T]he test in those circumstances is whether there is a substantial probability in requiring the party that is served with the subpoena to produce the evidence, which evidence would entail self-incrimination and with the production of the magazines for possible use in a criminal prosecution, and we say that this would amount to a violation of the privilege under the Fifth Amendment, and we contend that it most certainly would, and that it must."App. 13-14. In overruling the claimed privilege the trial judge seems to have accepted the City Attorney's contention that the claim is not available in a civil proceeding. We disagree.In Kastigar v. United States, 406 U. S. 441 (1972), we recently reaffirmed the principle that the privilege against self-incrimination can be asserted "in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory." Id. at 406 U. S. 444; Lefkowitz v. Turley, 414 U. S. 70, 414 U. S. 77 (1973); Murphy v. Waterfront Comm'n, 378 U. S. 52, 378 U. S. 94 (1964) (WHITE, J. concurring); McCarthy v. Arndstein, 266 U. S. 34, 266 U. S. 40 (1924); United States v. Saline Bank, 1 Pet. 100 (1828); cf. Gardner v. Broderick, 392 U. S. 273 (1968). The trial judge seems to have proceeded upon the mistaken premise that petitioner's client was misadvised even to assert the privilege in a civil proceeding, regardless of its ultimate merit. This error explains the severe sanction the court placed -- Page 419 U. S. 465 albeit reluctantly -- upon petitioner because his advice seemed to have caused the witness' refusal to obey. [Footnote 13] Thus, the issue is whether, in a civil proceeding, a lawyer may be held in contempt for counseling a witness in good faith to refuse to produce court-ordered materials on the ground that the materials may tend to incriminate the witness in another proceeding. We hold that, on this record, petitioner may not be penalized even though his advice caused the witness to disobey the court's order.The privilege against compelled self-incrimination would be drained of its meaning if counsel, being lawfully present, [Footnote 14] as here, could be penalized for advising Page 419 U. S. 466 his client in good faith to assert it. The assertion of a testimonial privilege, as of many other rights, often depends upon legal advice from someone who is trained and skilled in the subject matter, and who may offer a more objective opinion. A layman may not be aware of the precise scope, the nuances, and boundaries of his Fifth Amendment privilege. [Footnote 15] It is not a self-executing mechanism; it can be affirmatively waived, or lost by not asserting it in a timely fashion. If performance of a lawyer's duty to advise a client that a privilege is available exposes a lawyer to the threat of contempt for giving honest advice, it is hardly debatable that some advocates may lose their zeal for forthrightness and independence. [Footnote 16] Page 419 U. S. 467There is a crucial distinction between citing a recalcitrant witness for contempt, United States v. Ryan, supra, and citing the witness' lawyer for contempt based only on advice given in good faith to assert the privilege against self-incrimination. The witness, once advised of the right, can choose for himself whether to risk contempt in order to test the privilege before evidence is produced. That decision is, and should be, for the witness. But, if his lawyer may be punished for advice so given, there is a genuine risk that a witness exposed to possible self-incrimination will not be advised of his right. Then the witness may be deprived of the opportunity to decide whether or not to assert the privilege.An early example of this situation is found in In re Watts, 190 U. S. 1 (1903). There, lawyers advised their clients in good faith that state, not federal, courts had bankruptcy jurisdiction over a certain property in the hands of a state receiver. This advice led to a collision between the state and federal courts, and contempt citations for the lawyers. Although this Court held that the lawyers' advice was substantively incorrect, it refused to allow the federal contempt convictions to stand, because there was no evidence the advice was given in bad faith. Id. at 190 U. S. 32. Mr. Chief Justice Fuller, speaking for the Court, said:"In the ordinary case of advice to clients, if an attorney acts in good faith and in the honest belief that his advice is well founded and in the just interests of his client, he cannot be held liable for error in judgment. The preservation of the independence Page 419 U. S. 468 of the bar is too vital to the due administration of justice to allow of the application of any other general rule."Id. at 190 U. S. 29.We conclude that an advocate is not subject to the penalty of contempt for advising his client, in good faith, to assert the Fifth Amendment privilege against self-incrimination in any proceeding embracing the power to compel testimony. To hold otherwise would deny the constitutional privilege against self-incrimination the means of its own implementation. When a witness is so advised, the advice becomes an integral part of the protection accorded the witness by the Fifth Amendment.IIIIn applying these principles, it is important to note what this case does not involve: the claim is not based solely on privacy; this is not a case where state law is clear that a response to compulsory process under protest renders the response inadmissible in any criminal prosecution against the witness; most important, there is no contention here as to lack of good faith or reasonable grounds for assertion of a Fifth Amendment claim.Both in a pretrial written motion and orally during trial, petitioner cogently stated his reasons for believing the privilege applied:"In view of the fact that there is this substantial possibility of self-incrimination; in view of the fact that seven other magazines that are of the same character as the . . . magazines named in the subpoena, that they have provided the basis for past criminal prosecutions; in view of the fact that criminal prosecutions are not only a very definite possibility, they are, in fact, a pronounced possibility, and so there is little reasonable doubt in these circumstances that the subpoena should be quashed Page 419 U. S. 469 because, in fact, it seeks to compel the person named in the subpoena to incriminate himself, and, of course, this is prohibited by the Fifth Amendment to the Constitution of the United States."App. 910. Petitioner stated that the magazines were "of the same character" [Footnote 17] as magazines for distribution of which his client had recently suffered a criminal conviction. There was therefore, at the very least, a reasonable basis for petitioner to assume that a risk of further criminal prosecution existed. [Footnote 18] Both sides agree that the record is devoid of evidence of contumacious conduct or any disrespect for the court, cf., e.g., In re Little, 404 U. S. 553, 404 U. S. 554-555 (1972). The highly professional tone of the proceeding is revealed by the statements of the judge, and by petitioner's closing comments to the judge after he had been cited for contempt:"If it please the Court, I certainly appreciate the Court's position. I think what we have here is not a situation, and I hope this is correct, where Counsel have deliberately and intentionally attempted to frustrate the Court. I think that, rather what we have is where there is a philosophical difference between Counsel for the Defendant and the Court with regard to the applicable law as to self-incrimination and the production of evidence in a civil case."App. 32. Page 419 U. S. 470 On this record, with no state statute or rule guaranteeing a privilege or assuring that, at a later criminal prosecution the compelled magazines would be inadmissible, it appears that there was no avenue other than assertion of the privilege, with the risk of contempt, that would have provided assurance of appellate review in advance of surrendering the magazines. We are satisfied that petitioner properly performed his duties as an advocate here, and he cannot suffer any penalty for performing such duties in good faith. [Footnote 19]Reversed

U.S. Supreme CourtManess v. Meyers, 419 U.S. 449 (1975)Maness v. MeyersNo. 73-689Argued October 22, 1974Decided January 15, 1975419 U.S. 449SyllabusA lawyer is not subject to the penalty of contempt for advising his client, during the trial of a civil case, to refuse on Fifth Amendment grounds to produce material demanded by a subpoena duces tecum when the lawyer believes in good faith that the material may tend to incriminate his client. To hold otherwise would deny the constitutional privilege against self-incrimination the means of its own implementation, since, when a witness is so advised the advice becomes an integral part of the protection accorded the witness by the Fifth Amendment. Pp. 419 U. S. 458-470.(a) That the client in any ensuing criminal action could move to suppress the subpoenaed material after it had been produced does not afford adequate protection, because, without something more, "he would be compelled to surrender the very protection which the privilege is designed to guarantee," Hoffman v. United States, 341 U. S. 479, 341 U. S. 486. United States v. Blue, 384 U. S. 251, distinguished. Pp. 419 U. S. 461-463.(b) Here, where petitioner lawyer admitted that the allegedly obscene magazines subpoenaed for the purpose of enjoining their distribution were "of the same character" as magazines for distribution of which his client had recently been convicted (so that petitioner had, at the very least, a reasonable basis for assuming that a risk of further criminal prosecution existed), and where there was no assurance under state law that the material could be suppressed and no avenue other than assertion of the privilege, with the risk of contempt, that would have assured appellate review in advance of surrendering the magazines, the advice was given in good faith. Pp. 419 U. S. 468-470.Reversed.BURGER, C.J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in the result, in which BLACKMUN, J., joined, post, p. 419 U. S. 470. WHITE, J., filed an opinion concurring in the result, post, p. 419 U. S. 472. Page 419 U. S. 450

1974_73-898

MR. JUSTICE WHITE delivered the opinion of the Court.This appeal by various administrators of the Columbus, Ohio, Public School System (CPSS) challenges the judgment of a three-judge federal court, declaring that appellees -- various high school students in the CPSS -- were denied due process of law contrary to the command of the Fourteenth Amendment in that they were temporarily suspended from their high schools without a hearing either prior to suspension or within a reasonable time thereafter, and enjoining the administrators to remove all references to such suspensions from the students' records.IOhio law, Rev.Code Ann. § 3313.64 (1972), provides for free education to all children between the ages of six and 21. Section 3313.66 of the Code empowers the principal of an Ohio public school to suspend a pupil for misconduct for up to 10 days or to expel him. In either case, he must notify the student's parents within 24 hours and state the reasons for his action. A pupil who is expelled, or his parents, may appeal the decision to the Board of Education, and, in connection therewith, shall be permitted to be heard at the board meeting. The Board may reinstate the pupil following the hearing. No similar procedure is provided in § 3313.66 or any other provision of state law for a suspended student. Aside from a regulation tracking the statute, at the time of the imposition of the suspensions in this case, the CPSS itself had not issued any written procedure applicable to suspensions. [Footnote 1] Nor, so far as the record reflects, had any of Page 419 U. S. 568 the individual high schools involved in this case. [Footnote 2] Each, however, had formally or informally described the conduct for which suspension could be imposed.The nine named appellees, each of whom alleged that he or she had been suspended from public high school in Columbus for up to 10 days without a hearing pursuant to § 3313.66, filed an action under 42 U.S.C. § 1993 against the Columbus Board of Education and various administrators of the CPSS. The complaint sought a Page 419 U. S. 569 declaration that § 3313.66 was unconstitutional in that it permitted public school administrators to deprive plaintiffs of their rights to an education without a hearing of any kind, in violation of the procedural due process component of the Fourteenth Amendment. It also sought to enjoin the public school officials from issuing future suspensions pursuant to § 3313.66, and to require them to remove references to the past suspensions from the records of the students in question. [Footnote 3]The proof below established that the suspensions arose out of a period of widespread student unrest in the CPSS during February and March, 1971. Six of the named plaintiffs, Rudolph Sutton, Tyrone Washington, Susan Cooper, Deborah Fox, Clarence Byars, and Bruce Harris, were students at the Marion-Franklin High School and were each suspended for 10 days [Footnote 4] on account of disruptive or disobedient conduct committed in the presence of the school administrator who ordered the suspension. One of these, Tyrone Washington, was among a group of students demonstrating in the school auditorium while a class was being conducted there. He was ordered by the school principal to leave, refused Page 419 U. S. 570 to do so, and was suspended. Rudolph Sutton, in the presence of the principal, physically attacked a police officer who was attempting to remove Tyrone Washington from the auditorium. He was immediately suspended. The other four Marion-Franklin students were suspended for similar conduct. None was given a hearing to determine the operative facts underlying the suspension, but each, together with his or her parents, was offered the opportunity to attend a conference, subsequent to the effective date of the suspension, to discuss the student's future.Two named plaintiffs, Dwight Lopez and Betty Crome, were students at the Central High School and McGuffey Junior High School, respectively. The former was suspended in connection with a disturbance in the lunchroom which involved some physical damage to school property. [Footnote 5] Lopez testified that at least 75 other students were suspended from his school on the same day. He also testified below that he was not a party to the destructive conduct, but was instead an innocent bystander. Because no one from the school testified with regard to this incident, there is no evidence in the record indicating the official basis for concluding otherwise. Lopez never had a hearing.Betty Crome was present at a demonstration at a high school other than the one she was attending. There she was arrested together with others, taken to the police station, and released without being formally charged. Before she went to school on the following day, she was Page 419 U. S. 571 notified that she had been suspended for a 10-day period. Because no one from the school testified with respect to this incident, the record does not disclose how the McGuffey Junior High School principal went about making the decision to suspend Crome, nor does it disclose on what information the decision was based. It is clear from the record that no hearing was ever held.There was no testimony with respect to the suspension of the ninth named plaintiff, Carl Smith. The school files were also silent as to his suspension, although as to some, but not all, of the other named plaintiffs the files contained either direct references to their suspensions or copies of letters sent to their parents advising them of the suspension.On the basis of this evidence, the three-judge court declared that plaintiffs were denied due process of law because they were "suspended without hearing prior to suspension or within a reasonable time thereafter," and that Ohio Rev.Code Ann. § 3313.66 (1972) and regulations issued pursuant thereto were unconstitutional in permitting such suspensions. [Footnote 6] It was ordered that all references to plaintiffs' suspensions be removed from school files.Although not imposing upon the Ohio school administrators any particular disciplinary procedures and leaving them"free to adopt regulations providing for fair suspension procedures which are consonant with the educational goals of their schools and reflective of the characteristics of their school and locality,"the District Court declared Page 419 U. S. 572 that there were "minimum requirements of notice and a hearing prior to suspension, except in emergency situations." In explication, the court stated that relevant case authority would: (1) permit "[i]mmediate removal of a student whose conduct disrupts the academic atmosphere of the school, endangers fellow students, teachers or school officials, or damages property"; (2) require notice of suspension proceedings to be sent to the student's parents within 24 hours of the decision to conduct them; and (3) require a hearing to be held, with the student present, within 72 hours of his removal. Finally, the court stated that, with respect to the nature of the hearing, the relevant cases required that statements in support of the charge be produced, that the student and others be permitted to make statements in defense or mitigation, and that the school need not permit attendance by counsel.The defendant school administrators have appealed the three-judge court's decision. Because the order below granted plaintiffs' request for an injunction -- ordering defendants to expunge their records -- this Court has jurisdiction of the appeal pursuant to 28 U.S.C. § 1253. We affirm.IIAt the outset, appellants contend that, because there is no constitutional right to an education at public expense, the Due Process Clause does not protect against expulsions from the public school system. This position misconceives the nature of the issue, and is refuted by prior decisions. The Fourteenth Amendment forbids the State to deprive any person of life, liberty, or property without due process of law. Protected interests in property are normally "not created by the Constitution. Rather, they are created and their dimensions are defined" by an independent source such as state statutes or rules Page 419 U. S. 573 entitling the citizen to certain benefits. Board of Regents v. Roth, 408 U. S. 564, 408 U. S. 577 (1972).Accordingly, a state employee who under state law, or rules promulgated by state officials, has a legitimate claim of entitlement to continued employment absent sufficient cause for discharge may demand the procedural protections of due process. Connell v. Higginbotham, 403 U. S. 207 (1971); Wieman v. Updegraff, 344 U. S. 183, 344 U. S. 191-192 (1952); Arnett v. Kennedy, 416 U. S. 134, 416 U. S. 164 (POWELL, J., concurring), 416 U. S. 171 (WHITE, J., concurring and dissenting) (1974). So may welfare recipients who have statutory rights to welfare as long as they maintain the specified qualifications. Goldberg v. Kelly, 397 U. S. 254 (1970). Morrissey v. Brewer, 408 U. S. 471 (1972), applied the limitations of the Due Process Clause to governmental decisions to revoke parole, although a parolee has no constitutional right to that status. In like vein was Wolff v. McDonnell, 418 U. S. 539 (1974), where the procedural protections of the Due Process Clause were triggered by official cancellation of a prisoner's good time credits accumulated under state law, although those benefits were not mandated by the Constitution.Here, on the basis of state law, appellees plainly had legitimate claims of entitlement to a public education. Ohio Rev.Code Ann. §§ 3313.48 and 3313.64 (1972 and Supp. 1973) direct local authorities to provide a free education to all residents between five and 21 years of age, and a compulsory attendance law requires attendance for a school year of not less than 32 weeks. Ohio Rev.Code Ann § 3321.04 (1972). It is true that § 3313.66 of the Code permits school principals to suspend students for up to 10 days; but suspensions may not be imposed without any grounds whatsoever. All of the schools had their own rules specifying the Page 419 U. S. 574 grounds for expulsion or suspension. Having chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred. Arnett v. Kennedy, supra at 416 U. S. 164 (POWELL, J., concurring), 416 U. S. 171 (WHITE, J., concurring and dissenting), 416 U. S. 206 (MARSHALL, J., dissenting).Although Ohio may not be constitutionally obligated to establish and maintain a public school system, it has nevertheless done so, and has required its children to attend. Those young people do not "shed their constitutional rights" at the schoolhouse door. Tinker v. Des Moines School Dist., 393 U. S. 503, 393 U. S. 506 (1969)."The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures -- Boards of Education not excepted."West Virginia Board of Education v. Barnette, 319 U. S. 624, 319 U. S. 637 (1943). The authority possessed by the State to prescribe and enforce standards of conduct in its schools although concededly very broad, must be exercised consistently with constitutional safeguards. Among other things, the State is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause.The Due Process Clause also forbids arbitrary deprivations of liberty. "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him," the minimal requirements of the Clause must be satisfied. Wisconsin v. Constantineau, 400 U. S. 433, 400 U. S. 437 (1971); Board of Regents v. Roth, supra, at 408 U. S. 573. School authorities here suspended appellees from school for periods of up to 10 days Page 419 U. S. 575 based on charges.of misconduct. If sustained and recorded, those charges could seriously damage the students' standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment. [Footnote 7] It is apparent that the claimed right of the State to determine unilaterally and without process whether that misconduct has occurred immediately collides with the requirements of the Constitution.Appellants proceed to argue that, even if there is a right to a public education protected by the Due Process Clause generally, the Clause comes into play only when the State subjects a student to a "severe detriment or grievous loss." The loss of 10 days, it is said, is neither severe nor grievous and the Due Process Clause is therefore of no relevance. Appellants' argument is again refuted by our prior decisions; for in determining"whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest Page 419 U. S. 576 at stake."Board of Regents v. Roth, supra, at 408 U. S. 570-571. Appellees were excluded from school only temporarily, it is true, but the length and consequent severity of a deprivation, while another factor to weigh in determining the appropriate form of hearing, "is not decisive of the basic right" to a hearing of some kind. Fuentes v. Shevin, 407 U. S. 67, 407 U. S. 86 (1972). The Court's view has been that, as long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause. Sniadach v. Family Finance Corp., 395 U. S. 337, 395 U. S. 342 (1969) (Harlan, J., concurring); Boddie v. Connecticut, 401 U. S. 371, 401 U. S. 378-379 (1971); Board of Regents v. Roth, supra, at 408 U. S. 570 n. 8. A 10-day suspension from school is not de minimis, in our view, and may not be imposed in complete disregard of the Due Process Clause.A short suspension is, of course, a far milder deprivation than expulsion. But, "education is perhaps the most important function of state and local governments," Brown v. Board of Education, 347 U. S. 483, 347 U. S. 493 (1954), and the total exclusion from the educational process for more than a trivial period, and certainly if the suspension is for 10 days, is a serious event in the life of the suspended child. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation, which is also implicated, is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary. [Footnote 8] Page 419 U. S. 577III"Once it is determined that due process applies, the question remains what process is due." Morrissey v. Brewer, 408 U.S. at 408 U. S. 481. We turn to that question, fully Page 419 U. S. 578 realizing, as our cases regularly do, that the interpretation and application of the Due Process Clause are intensely practical matters, and 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). We are also mindful of our own admonition:"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).There are certain benchmarks to guide us, however. Mullane v. Central Hanover Trust Co., 339 U. S. 306 Page 419 U. S. 579 (1950), a case -- often invoked by later opinions, said that"[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that, at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case."Id. at 339 U. S. 313. "The fundamental requisite of due process of law is the opportunity to be heard," Grannis v. Ordean, 234 U. S. 385, 234 U. S. 394 (1914), a right that "has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to . . . contest." Mullane v. Central Hanover Trust Co., supra, at 339 U. S. 314. See also Armstrong v. Manzo, 380 U. S. 545, 380 U. S. 550 (1965); Anti-Fascist Committee v. McGrath, 341 U. S. 123, 341 U. S. 168-169 (1951) (Frankfurter, J., concurring). At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing. "Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." Baldwin v. Hale, 1 Wall. 223, 68 U. S. 233 (1864).It also appears from our cases that the timing and content of the notice and the nature of the hearing will depend on appropriate accommodation of the competing interests involved. Cafeteria Workers v. McElroy, supra, at 367 U. S. 895; Morrissey v. Brewer, supra, at 408 U. S. 481. The student's interest is to avoid unfair or mistaken exclusion from the educational process, with all of its unfortunate consequences. The Due Process Clause will not shield him from suspensions properly imposed, but it disserves both his interest and the interest of the State if his suspension is, in fact, unwarranted. The concern would be mostly academic if the disciplinary process were a totally accurate, unerring process, never mistaken and never Page 419 U. S. 580 unfair. Unfortunately, that is not the case, and no one suggests that it is. Disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed. The risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process.The difficulty is that our schools are vast and complex. Some modicum of discipline and order is essential if the educational function is to be performed. Events calling for discipline are frequent occurrences, and sometimes require immediate, effective action. Suspension is considered not only to be a necessary tool to maintain order, but a valuable educational device. The prospect of imposing elaborate hearing requirements in every suspension case is viewed with great concern, and many school authorities may well prefer the untrammeled power to act unilaterally, unhampered by rules about notice and hearing. But it 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. "[F]airness can rarely be obtained by secret, one-sided determination of facts decisive of rights. . . .""Secrecy is not congenial to truth-seeking, and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it."Anti-Fascist Committee v. McGrath, supra, at 341 U. S. 170, 341 U. S. 171-172 (Frankfurter, J., concurring). [Footnote 9] Page 419 U. S. 581We do not believe that school authorities must be totally free from notice and hearing requirements if their schools are to operate with acceptable efficiency. Students facing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, 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. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school. [Footnote 10] Page 419 U. S. 582There need be no delay between the time "notice" is given and the time of the hearing. In the great majority of cases the disciplinarian may informally discuss the alleged misconduct with the student minutes after it has occurred. We hold only that, in being given an opportunity to explain his version of the facts at this discussion, the student first be told what he is accused of doing and what the basis of the accusation is. Lower courts which have addressed the question of the nature of the procedures required in short suspension cases have reached the same conclusion. Tate v. Board of Education, 453 F.2d 975, 979 (CA8 1972); Vail v. Board of Education, 354 F. Supp. 592, 603 (NH 1973). Since the hearing may occur almost immediately following the misconduct, it follows that as a general rule notice and hearing should precede removal of the student from school. We agree with the District Court, however, that there are recurring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow Page 419 U. S. 583 as soon as practicable, as the District Court indicated.In holding as we do, we do not believe that we have imposed procedures on school disciplinarians which are inappropriate in a classroom setting. Instead we have imposed requirements which are, if anything, less than a fair-minded school principal would impose upon himself in order to avoid unfair suspensions. Indeed, according to the testimony of the principal of Marion-Franklin High School, that school had an informal procedure, remarkably similar to that which we now require, applicable to suspensions generally but which was not followed in this case. Similarly, according to the most recent memorandum applicable to the entire CPSS, see n 1, supra, school principals in the CPSS are now required by local rule to provide at least as much as the constitutional minimum which we have described.We stop short of construing the Due Process Clause to require, countrywide, that hearings in connection with short suspensions must afford the student the opportunity to secure counsel, to confront and cross-examine witnesses supporting the charge, or to call his own witnesses to verify his version of the incident. Brief disciplinary suspensions are almost countless. To impose in each such case even truncated trial-type procedures might well overwhelm administrative facilities in many places and, by diverting resources, cost more than it would save in educational effectiveness. Moreover, 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 part of the teaching process.On the other hand, requiring 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 Page 419 U. S. 584 about cause and effect. He may then determine himself to summon the accuser, permit cross-examination, and allow the student to present his own witnesses. In more difficult cases, he may permit counsel. In any event, his discretion will be more informed and we think the risk of error substantially reduced.Requiring that there be at least an informal give-and-take between student and disciplinarian, preferably prior to the suspension, will add little to the factfinding function where the disciplinarian himself has witnessed the conduct forming the basis for the charge. But things are not always as they seem to be, and the student will at least have the opportunity to characterize his conduct and put it in what he deems the proper context.We should also make it clear that we have addressed ourselves solely to the short suspension, not exceeding 10 days. Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures. Nor do we put aside the possibility that, in unusual situations, although involving only a short suspension, something more than the rudimentary procedures will be required.IVThe District Court found each of the suspensions involved here to have occurred without a hearing, either before or after the suspension, and that each suspension was therefore invalid and the statute unconstitutional insofar as it permits such suspensions without notice or hearing. Accordingly, the judgment isAffirmed

U.S. Supreme CourtGoss v. Lopez, 419 U.S. 565 (1975)Goss v. LopezNo. 73-898Argued October 16, 1974Decided January 22, 1975419 U.S. 565SyllabusAppellee Ohio public high school students, who had been suspended from school for misconduct for up to 10 days without a hearing, brought a class action against appellant school officials seeking a declaration that the Ohio statute permitting such suspensions was unconstitutional and an order enjoining the officials to remove the references to the suspensions from the students' records. A three-judge District Court declared that appellees were denied due process of law in violation of the Fourteenth Amendment because they were "suspended without hearing prior to suspension or within a reasonable time thereafter," and that the statute and implementing regulations were unconstitutional, and granted the requested injunction.Held:1. Students facing temporary suspension from a public school have property and liberty interests that qualify for protection under the Due Process Clause of the Fourteenth Amendment. Pp. 419 U. S. 572-576.(a) Having chosen to extend the right to an education to people of appellees' class generally, Ohio may not withdraw that right on grounds of misconduct absent fundamentally fair procedures to determine whether the misconduct has occurred, and must recognize a student's legitimate entitlement to a public education as a property interest that is protected by the Due Process Clause, and that may not be taken away for misconduct without observing minimum procedures required by that Clause. Pp. 419 U. S. 573-574.(b) Since misconduct charges, if sustained and recorded, could seriously damage the students' reputation, as well as interfere with later educational and employment opportunities, the State's claimed right to determine unilaterally and without process whether that misconduct has occurred immediately collides with the Due Process Clause's prohibition against arbitrary deprivation of liberty. Pp. 419 U. S. 574-575.(c) A 10-day suspension from school is not de minimis and may not be imposed in complete disregard of the Due Process Page 419 U. S. 566 Clause. Neither the property interest in educational benefits temporarily denied nor the liberty interest in reputation is so insubstantial that suspensions may constitutionally be imposed by any procedure the school chooses, no matter how arbitrary. Pp. 419 U. S. 575-576.2. Due process requires, in connection with a suspension of 10 days or less, 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 version. Generally, notice and hearing should precede the student's removal from school, since the hearing may almost immediately follow the misconduct, but if prior notice and hearing are not feasible, as where the student's presence endangers persons or property or threatens disruption of the academic process, thus justifying immediate removal from school, the necessary notice and hearing should follow as soon as practicable. Pp. 419 U. S. 577-584.372 F. Supp. 1279, affirmed.WHITE, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined, post, p. 419 U. S. 584. Page 419 U. S. 567

1956_52

MR. JUSTICE REED delivered the opinion of the Court.A federal criminal information was filed by the United States against Ludenia Howard, trading as Stokes Fish Company, appellee, in the United States District Court for the Southern District of Florida, charging her with a violation of the Federal Black Bass Act of May 20, 1926, as amended, c. 346, 44 Stat. 576, 46 Stat. 845, 61 Stat. 517, 66 Stat. 736, 16 U.S.C. §§ 851�854. The Act provides:"It shall be unlawful for any person to deliver . . . for transportation . . . from any State . . . any black bass or other fish, if (1) such transportation is contrary to the law of the State . . . from which such . . . fish . . . is to be transported. . . ."16 U.S.C. § 852. The information stated that appellee delivered fish for transportation across the Florida border contrary to the "laws of the State of Florida." The relevant fishing provisions consisted of the rules and regulations of the Florida Game and Fresh Water Fish Commission and a criminal penalty imposed by the legislature for violation of the rules. The District Court, however, held that the rules and regulations do not constitute the "law of" Florida within the meaning of the Black Bass Act, and, on appellee's motion, quashed the information. An appeal was brought here by the United States pursuant to 18 U.S.C. § 3731. We noted probable jurisdiction. 351 U.S. 980.Florida's Game Commission was created by a 1942 constitutional amendment (Art. IV, § 30, Constitution of Florida) which provides that:"after January 1, 1943, the management, restoration, conservation and regulation of the . . . fresh water fish of the State of Florida . . . shall be vested in [the] Commission. . . . "Page 352 U. S. 214It was empowered by the same amendment"to fix bag limits and to fix open and closed seasons, on a statewide, regional or local basis, as it may find to be appropriate, and to regulate the manner and method of taking, transporting, storing and using . . . fresh water fish. . . ."The amendment further provides:"The Legislature may enact any laws in aid of . . . the provisions of this amendment. . . . All laws fixing penalties for the violation of the provisions of this amendment . . . shall be enacted by the Legislature from time to time."Pursuant to this amendment, the Florida Legislature authorized the Commission to exercise"the powers, duties and authority granted by § 30, article IV, of the constitution of Florida, by the adoption of rules, regulations and orders. . . ."Fla.Stat.Ann., 1943, § 372.021. Another statute makes it a misdemeanor to violate "any rule, regulation or order of the game and fresh water fish commission. . . ." Fla.Stat.1955, § 372.83. Rule 14.01 of the Commission's rules prohibits the transportation of certain fresh fish outside the State; it is this regulation that Ludenia Howard is accused of breaking. [Footnote 1] Because the information was quashed for failure to state a federal crime, we assume the alleged acts of appellee Page 352 U. S. 215 occurred, and that she is subject to criminal prosecution in Florida pursuant to § 372.83 of the Florida Statutes, as set out above.The sole question presented is whether Rule 14.01 of the Commission's regulations, as enforced by § 372.83 of the Florida Statutes, is a "law" of the State of Florida as that term is used in the Federal Act.This Court has repeatedly ruled, in other circumstances, that orders of state administrative agencies are the law of the State. In Grand Trunk Western R. Co. v. Indiana R. Comm'n, 221 U. S. 400, 221 U. S. 403, the Court stated, citing Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 211 U. S. 226:"the order [of the Indiana Railroad Commission] . . . is a law of the state within the meaning of the contract clause of the Constitution. . . ."And in Lake Erie & W. R. Co. v. Public Utilities Comm'n, 249 U. S. 422, 249 U. S. 424, it was said that an order of the state public utilities commission,"being legislative in its nature . . . is a state law within the meaning of the Constitution of the United States and the laws of Congress regulating our jurisdiction."A similar statement may be found in Arkadelphia Milling Co. v. St. Louis S.W. R. Co., 249 U. S. 134, 249 U. S. 141.It was suggested that the action of the court below is supported by United States v. Eaton, 144 U. S. 677. We believe the case is inapposite. It involved the regulation of manufacturers and dealers in oleomargarine under 24 Stat. 209. Section 18 of the Act provided a criminal penalty for the knowing or willful failure "to do, or cause to be done, any of the things required by law." Section 5 required manufacturers to keep certain records. A similar requirement was imposed upon wholesalers by a regulation made by the Commissioner of Internal Revenue pursuant to § 20. The defendant in the Eaton case, a Page 352 U. S. 216 wholesaler, failed to keep the proper records, but this Court held he had not committed a crime under § 18:"Regulations prescribed by the president and by the heads of departments, under authority granted by congress, may be regulations prescribed by law, so as lawfully to support acts done under them and in accordance with them, and may thus have, in a proper sense, the force of law; but it does not follow that a thing required by them is a thing so required by law as to make the neglect to do the thing a criminal offense in a citizen, where a statute does not distinctly make the neglect in question a criminal offense."Id., at 144 U. S. 688. The Court made particular mention of the fact that the Act expressly required manufacturers to keep certain books, but made no such requirement of wholesalers. Id. [Footnote 2] In Singer v. United States, 323 U. S. 338, 323 U. S. 345, we said:"United States v. Eaton turned on its special facts, as United States v. Grimaud, 220 U. S. 506, 220 U. S. 518-519, emphasizes. It has not been construed to state a fixed principle that a regulation can never be a 'law' for purposes of criminal prosecutions. It may or may not be, depending on the structure of the particular statute."See also Caha v. United States, 152 U. S. 211, 152 U. S. 219. Here, it is beyond question that the Florida Legislature, in Fla.Stat., § 372.83, intended to and did make infraction Page 352 U. S. 217 of any commission regulation a violation of state law, punishable as a misdemeanor.Appellee argues that the rules of the Florida Commission are so subject to change that they lack sufficient substance and permanence to be the "law" of Florida. We need not decide now whether a state agency could make a rule of such a temporary nature and so unaccompanied by the procedural niceties of rulemaking that the declaration should not be considered the law of the State for purposes of a statute such as the Black Bass Act. These considerations formed no part of the opinion below. Moreover appellee has not demonstrated that the rule here involved is of such a character.Commission promulgation of orders is regulated by § 372.021 of 14 Fla.Stat.Ann., a legislative enactment. It provides that no regulation or amendment to a regulation is effective until 30 days after the filing of a certified copy of such provisions with the secretary of state. The statute also directs that any change in the type of regulation involved here is to be filed in the office of each county judge, and that changes must be published in each county in a newspaper of general circulation. [Footnote 3] We are advised by the Government's brief that the Commission compiles its rules in a code book which is circulated without cost to all county judges, as is directed by statute, and also to principal sporting goods and license dealers. In fact, they seem to be available to anyone requesting them from the Commission. We are also told that it is the Commission's practice to conduct public hearings to give Page 352 U. S. 218 everyone an opportunity to air his own views on proposed changes in the rules. None of these assertions is challenged by appellee.We recognize that not all the above-described procedures are mandatory, and that whether any of them was employed with the enactment of Rule 14.01 cannot be ascertained from the record at this time. However, the fact that it is the asserted practice of the Commission to comply with them suggests a potent answer to appellee's charge of impermanence. Moreover, it is not inappropriate for us to note that transportation of some species of fish covered by this information has been prohibited in Florida since 1927. Fla.Stat.Ann.1943, § 372.29; Acts Fla.1929, c. 13644, § 35.The State of Florida prefers to entrust the regulation of its wildlife conservation program to a Game Commission. Such a preference is in accordance with the practice of 28 States that have vested full regulatory authority in commissions. Only 6 States reserve that full authority to their legislatures. Sport Fishing Institute Bulletin, No. 26, p. 60 (January 1954). Moreover, a document prepared by the Department of the Interior and submitted to us by the Government at our request shows that, even in 1926, the year the Black Bass Act was first passed, significant rulemaking power was entrusted to game commissions or commissioners in some 20 States. [Footnote 4]That the congressional purpose was to extend the enforcement guarantees of the Black Bass Act to these regulations is the most reasonable interpretation of the Act, and is an interpretation supported by the legislative history of the 1947 amendment to the Act. The amendment, Page 352 U. S. 219 which made the provisions of the Act applicable to all game fish, was accompanied by Senate and House reports containing the following language:"The bill is intended to supplement State laws applying to protection of game fish. . . . State laws become ineffectual when fish taken in violation of the law cross the State line. If we are to protect game fish, an important natural resource, the Federal Government must collaborate in the enforcement of protective laws and regulations at the point where State jurisdiction ends."S.Rep. No. 288, 80th Cong., 1st Sess. 2; H.R.Rep. No. 986, 80th Cong., 1st Sess.Accordingly we hold that the phrase "law of the State," as used in this Act, is sufficiently broad to encompass the type of regulation used in Florida.Reversed

U.S. Supreme CourtUnited States v. Howard, 352 U.S. 212 (1957)United States v. HowardNo. 52Argued December 6, 1956Decided January 14, 1957352 U.S. 212SyllabusThe Federal Black Bass Act makes it unlawful for any person to deliver black bass or other fish for transportation from any State if such transportation is contrary to the "law of the State." Rule 14.01 of the regulations of the Florida Game & Fresh Water Fish Commission prohibits the transportation of certain fresh fish out of the State, and § 372.83 of the Florida Statutes makes it a misdemeanor to violate any rule, regulation or order of the Commission.Held: Rule 14.01 of the Commission's regulations, as enforced by § 372.83 of the Florida Statutes, is a "law of the State" within the meaning of the Federal Act. Pp. 352 U. S. 213-219.(a) United States v. Eaton, 144 U. S. 677, distinguished. Pp. 352 U. S. 215-217.(b) By Fla. Stat. § 372.83, the Florida Legislature intended to and did make infraction of any commission regulation a violation of state law, punishable as a misdemeanor. Pp. 352 U. S. 216-217.(c) The record does not show that the rules of the Florida Commission are of such a temporary nature and so unaccompanied by the procedural niceties of rule making as to require that Rule 14.01 be considered not the "law of the State" for the purposes of the Federal Act. Pp. 352 U. S. 217-218.(d) That Congress intended to extend the enforcement guarantees of the Black Bass Act to such regulations as those of the Florida Commission is the most reasonable interpretation of the Act, and it is supported by the legislative history of the 1947 amendment to the Act. Pp. 352 U. S. 218-219.Reversed and remanded. Page 352 U. S. 213

1995_94-1387

the Righ Seas Act (DORSA), states that "[t]he provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter." 46 U. S. C. App. § 767. This statement, by its terms, simply stops DORSA from displacing state law in territorial waters. See, e. g., Miles, supra, at 25. Taking into account what Congress sought to achieve, however, the Court preserves the application of state statutes to deaths within territorial waters. Pp. 209-216.40 F.3d 622, affirmed.GINSBURG, J., delivered the opinion for a unanimous Court.James W Bartlett III argued the cause for petitioners.With him on the briefs were Jonathan Dryer, William R. Hoffman, and Francis P. Manchisi.Paul A. Engelmayer argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Bender, David v: Hutchinson, and Edward Himmelfarb.Alan B. Morrison argued the cause for respondents.With him on the brief were William J. Taylor and Timothy R. Chapin.*JUSTICE GINSBURG delivered the opinion of the Court. Twelve-year-old Natalie Calhoun was killed in a jet ski accident on July 6, 1989. At the time of her death, she was vacationing with family friends at a beach-front resort in Puerto Rico. Alleging that the jet ski was defectively de-*Briefs of amici curiae urging reversal were filed for the American Steamship Owners Mutual Protection and Indemnity Association, Inc., et al. by Michael F. Sturley; for the Maritime Law Association of the United States by Warren J. Marwedel, Dennis Minichello, and Chester D. Hooper; and for the National Marine Manufacturers Association by George J. Koelzer and Joshua S. Force.Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Ross Diamond III and Pamela Liapakis; and for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley.202signed or made, Natalie's parents sought to recover from the manufacturer pursuant to state survival and wrongful-death statutes. The manufacturer contended that state remedies could not be applied because Natalie died on navigable waters; federal, judge-declared maritime law, the manufacturer urged, controlled to the exclusion of state law.Traditionally, state remedies have been applied in accident cases of this order-maritime wrongful-death cases in which no federal statute specifies the appropriate relief and the decedent was not a seaman, longshore worker, or person otherwise engaged in a maritime trade. We hold, in accord with the United States Court of Appeals for the Third Circuit, that state remedies remain applicable in such cases and have not been displaced by the federal maritime wrongful-death action recognized in Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970).INatalie Calhoun, the 12-year-old daughter of respondents Lucien and Robin Calhoun, died in a tragic accident on July 6, 1989. On vacation with family friends at a resort hotel in Puerto Rico, Natalie had rented a "WaveJammer" jet ski manufactured by Yamaha Motor Company, Ltd., and distributed by Yamaha Motor Corporation, U. S. A. (collectively, Yamaha), the petitioners in this case. While riding the WaveJammer, Natalie slammed into a vessel anchored in the waters off the hotel frontage, and was killed.The Calhouns, individually and in their capacities as administrators of their daughter's estate, sued Yamaha in the United States District Court for the Eastern District of Pennsylvania. Invoking Pennsylvania's wrongful-death and survival statutes, 42 Pa. Cons. Stat. §§8301-8302 (1982 and Supp. 1995), the Calhouns asserted several bases for recovery (including negligence, strict liability, and breach of implied warranties), and sought damages for lost future earnings, loss of society, loss of support and services, and funeral expenses, as well as punitive damages. They grounded fed-203eral jurisdiction on both diversity of citizenship, 28 U. S. C. § 1332,1 and admiralty, 28 U. S. C. § 1333.Yamaha moved for partial summary judgment, arguing that the federal maritime wrongful-death action this Court recognized in Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970), provided the exclusive basis for recovery, displacing all remedies afforded by state law. Under Moragne, Yamaha contended, the Calhouns could recover as damages only Natalie's funeral expenses. The District Court agreed with Yamaha that Moragne's maritime death action displaced state remedies; the court held, however, that loss of society and loss of support and services were compensable under Moragne.Both sides asked the District Court to present questions for immediate interlocutory appeal pursuant to 28 U. S. C. § 1292(b). The District Court granted the parties' requests, and in its § 1292(b) certifying order stated:"Natalie Calhoun, the minor child of plaintiffs Lucien B. Calhoun and Robin L. Calhoun, who are Pennsylvania residents, was killed in an accident not far off shore in Puerto Rico, in the territorial waters of the United States. Plaintiffs have brought a diversity suit against, inter alia, defendants Yamaha Motor Corporation, U. S. A. and Yamaha Motor Co., Ltd. The counts of the complaint directed against the Yamaha defendants allege that the accident was caused by a defect or defects in a Yamaha jet ski which Natalie Calhoun had rented and was using at the time of the fatal accident. Those counts sound in negligence, in strict liability, and in implied warranties of merchantability and fitness. The district court has concluded that admiralty jurisdiction attaches to these several counts and that they1 The Calhouns are citizens of Pennsylvania. Yamaha Motor Corporation, U. S. A., is incorporated and has its principal place of business in California; Yamaha Motor Company, Ltd., is incorporated and has its principal place of business in Japan.204constitute a federal maritime cause of action. The questions of law certified to the Court of Appeals are whether, pursuant to such a maritime cause of action, plaintiffs may seek to recover (1) damages for the loss of the society of their deceased minor child, (2) damages for the loss of their child's future earnings, and (3) punitive damages." App. to Pet. for Cert. A-78.Although the Court of Appeals granted the interlocutory review petition, the panel to which the appeal was assigned did not reach the questions presented in the certified order, for it determined that an anterior issue was pivotal. The District Court, as just recounted, had concluded that any damages the Calhouns might recover from Yamaha would be governed exclusively by federal maritime law. But the Third Circuit panel questioned that conclusion and inquired whether state wrongful-death and survival statutes supplied the remedial prescriptions for the Calhouns' complaint. The appellate panel asked whether the state remedies endured or were "displaced by a federal maritime rule of decision." 40 F.3d 622, 624 (1994). Ultimately, the Court of Appeals ruled that state-law remedies apply in this case. Id., at 644.IIIn our order granting certiorari, we asked the parties to brief a preliminary question: "Under 28 U. S. C. § 1292(b), can the courts of appeals exercise jurisdiction over any question that is included within the order that contains the controlling question of law identified by the district court?" 514 U. S. 1126 (1995). The answer to that question, we are satisfied, is yes.Section 1292(b) provides, in pertinent part:"When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground205for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals ... may thereupon, in its discretion, permit an appeal to be takenfrom such order, if application is made to it within ten days after the entry of the order." (Emphasis added.)As the text of § 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court. The court of appeals may not reach beyond the certified order to address other orders made in the case. United States v. Stanley, 483 U. S. 669, 677 (1987). But the appellate court may address any issue fairly included within the certified order because "it is the order that is appealable, and not the controlling question identified by the district court." 9 J. Moore & B. Ward, Moore's Federal Practice' 110.25[1], p. 300 (2d ed. 1995). See also 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure § 3929, pp. 144-145 (1977) ("[T]he court of appeals may review the entire order, either to consider a question different than the one certified as controlling or to decide the case despite the lack of any identified controlling question."); Note, Interlocutory Appeals in the Federal Courts Under 28 U. S. C. § 1292(b), 88 Harv. L. Rev. 607, 628-629 (1975) ("scope of review [includes] all issues material to the order in question").We therefore proceed to the issue on which certiorari was granted: Does the federal maritime claim for wrongful death recognized in Moragne supply the exclusive remedy in cases involving the deaths of nonseafarers 2 in territorial waters?2 By "nonseafarers," we mean persons who are neither seamen covered by the Jones Act, 46 U. S. C. App. § 688 (1988 ed.), nor longshore workers covered by the Longshore and Harbor Workers' Compensation Act, 33 U. S. C. § 901 et seq.206IIIBecause this case involves a watercraft collision on navigable waters, it falls within admiralty's domain. See Sisson v. Ruby, 497 U. S. 358, 361-367 (1990); Foremost Ins. Co. v. Richardson, 457 U. S. 668, 677 (1982). "With admiralty jurisdiction," we have often said, "comes the application of substantive admiralty law." East River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858, 864 (1986). The exercise of admiralty jurisdiction, however, "does not result in automatic displacement of state law." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 545 (1995). Indeed, prior to Moragne, federal admiralty courts routinely applied state wrongful-death and survival statutes in maritime accident cases.3 The question before us is whether Moragne should be read to stop that practice.Our review of maritime wrongful-death law begins with The Harrisburg, 119 U. S. 199 (1886), where we held that the general maritime law (a species of judge-made federal common law) did not afford a cause of action for wrongful death. The Harrisburg Court said that wrongful-death actions are statutory and may not be created by judicial decree. The Court did not question the soundness of this view, or examine the historical justifications that account for it. Instead, the Court merely noted that common law in the United States, like the common law of England, did not allow recovery "for an injury which results in death," id., at 204 (internal quotation marks omitted), and that no country had "adopted a different rule on this subject for the sea from that which it maintains on the land," id., at 213. The Court did not consider itself free to chart a different course by crafting a judge-made wrongful-death action under our maritime law.Federal admiralty courts tempered the harshness of The Harrisburg's rule by allowing recovery under state3 Throughout this opinion, for economy, we use the term wrongful-death remedies or statutes to include survival statutes.207wrongful-death statutes. See, e. g., The Hamilton, 207 U. S. 398 (1907); The City of Norwalk, 55 F. 98 (SDNY 1893).4 We reaffirmed this practice in Western Fuel Co. v. Garcia, 257 U. S. 233 (1921), by holding that California's wrongfuldeath statute governed a suit brought by the widow of a maritime worker killed in that State's territorial waters. Though we had generally refused to give effect to state laws regarded as inconsonant with the substance of federal maritime law, we concluded that extending state wrongful-death statutes to fatal accidents in territorial waters was compatible with substantive maritime policies: "The subject is maritime and local in character and the specified modification of or supplement to the rule applied in admiralty courts ... will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations." Id., at 242.5 On similar reasoning, we also held that state survival statutes may be applied in cases arising out of accidents in territorial waters. See JustState wrongful-death statutes proved an adequate supplement to federal maritime law, until a series of this Court's4 Congress also mitigated the impact of The Harrisburg by enacting two statutes affording recovery for wrongful death. In 1920, Congress passed the Death on the High Seas Act (DOHSA), 46 U. S. C. App. § 761 et seq. (1988 ed.), which provides a federal claim for wrongful death occurring more than three nautical miles from the shore of any State or Territory. In that same year, Congress also passed the Jones Act, 46 U. S. C. App. § 688 (1988 ed.), which provides a wrongful-death claim to the survivors of seamen killed in the course of their employment, whether on the high seas or in territorial waters.5 Indeed, years before The Harrisburg, this Court rendered a pathmarking decision, Steamboat Co. v. Chase, 16 Wall. 522 (1873). In Steamboat, the Court upheld, under the "saving-to-suitors" proviso of the Judiciary Act of 1789 (surviving currently in 28 U. S. C. § 1333(1)), a state court's application of the State's wrongful-death statute to a fatality caused by a collision in territorial waters between defendants' steamboat and a sailboat in which plaintiff's decedent was passing.208decisions transformed the maritime doctrine of unseaworthiness into a strict-liability rule. Prior to 1944, unseaworthiness "was an obscure and relatively little used" liability standard, largely because "a shipowner's duty at that time was only to use due diligence to provide a seaworthy ship." Miles v. Apex Marine Corp., 498 U. S. 19, 25 (1990) (internal quotation marks omitted). See also Moragne, 398 U. S., at 398-399. Mahnich v. Southern S. S. Co., 321 U. S. 96 (1944), however, notably expanded a shipowner's liability to injured seamen by imposing a nondelegable duty "to furnish a vessel and appurtenances reasonably fit for their intended use." Mitchell v. Trawler Racer, Inc., 362 U. S. 539, 550 (1960). The duty imposed was absolute; failure to supply a safe ship resulted in liability "irrespective of fault and irrespective of the intervening negligence of crew members." Miles, 498 U. S., at 25. The unseaworthiness doctrine thus became a "species of liability without fault," Seas Shipping Co. v. Sieracki, 328 U. S. 85, 94 (1946), and soon eclipsed ordinary negligence as the primary basis of recovery when a seafarer was injured or killed. Miles, 498 U. S., at 25-26.6The disparity between the unseaworthiness doctrine's strict-liability standard and negligence-based state wrongful-death statutes figured prominently in our landmark Moragne decision. Petsonella Moragne, the widow of a longshore worker killed in Florida's territorial waters, brought suit under Florida's wrongful-death and survival statutes, alleging both negligence and unseaworthiness.6 The Court extended the duty to provide a seaworthy ship, once owed only to seamen, to longshore workers in Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946). Congress effectively overruled this extension in its 1972 amendments to the Longshore and Harbor Workers' Compensation Act, 33 U. S. C. § 901 et seq. See § 905(b). We have thus far declined to extend the duty further. See Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625, 629 (1959) (unseaworthiness doctrine inapplicable to invitee aboard vessel).209The District Court dismissed the claim for wrongful death based on unseaworthiness, citing this Court's decision in The Tungus v. Skovgaard, 358 U. S. 588 (1959). There, a sharply divided Court held that "when admiralty adopts a State's right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached." Id., at 592. Thus, in wrongful-death actions involving fatalities in territorial waters, state statutes provided the standard of liability as well as the remedial regime. Because the Florida Supreme Court had previously held that Florida's wrongfuldeath statute did not encompass unseaworthiness as a basis of liability, the Court of Appeals affirmed the dismissal of Moragne's unseaworthiness claim. See Moragne, 398 U. S., at 377.The Court acknowledged in Moragne that The Tungus had led to considerable uncertainty over the role state law should play in remedying deaths in territorial waters, but concluded that "the primary source of the confusion is not to be found in The Tungus, but in The Harrisburg." 398 U. S., at 378. Upon reexamining the soundness of The Harrisburg, we decided that its holding, "somewhat dubious even when rendered, is such an unjustifiable anomaly in the present maritime law that it should no longer be followed." 398 U. S., at 378. Accordingly, the Court overruled The Harrisburg and held that an action "lie[s] under general maritime law for death caused by violation of maritime duties." 398 U. S., at 409.IVYamaha argues that Moragne-despite its focus on "maritime duties" owed to maritime workers-covers the waters, creating a uniform federal maritime remedy for all deaths occurring in state territorial waters, and ousting all previously available state remedies. In Yamaha's view, state remedies can no longer supplement general maritime law210(as they routinely did before Moragne), because Moragne launched a solitary federal scheme.7 Yamaha's reading of Moragne is not without force; in several contexts, we have recognized that vindication of maritime policies demanded uniform adherence to a federal rule of decision, with no leeway for variation or supplementation by state law. See, e. g., Kossick v. United Fruit Co., 365 U. S. 731, 742 (1961) (federal maritime rule validating oral contracts precluded application of state Statute of Frauds); Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 409 (1953) (admiralty's comparative negligence rule barred application of state contributory negligence rule); Garrett v. Moore-McCormack Co., 317 U. S. 239, 248-249 (1942) (federal maritime rule allocating burden of proof displaced conflicting state rule).8 In addition, Ya-7If Moragne's wrongful-death action did not extend to nonseafarers like Natalie, one could hardly argue that Moragne displaced the state-law remedies the Calhouns seek. Lower courts have held that Moragne's wrongful-death action extends to nonseafarers. See, e. g., Sutton v. Earles, 26 F.3d 903 (CA9 1994) (recreational boater); Wahlstrom v. Kawasaki Heavy Industries, Ltd., 4 F.3d 1084 (CA2 1993) (jet skier), cert. denied, 510 U. S. 1114 (1994). We assume, for purposes of this decision, the correctness of that position. Similarly, as in prior encounters, we assume without deciding that Moragne also provides a survival action. See Miles v. Apex Marine Corp., 498 U. S. 19, 34 (1990). The question we confront is not what Moragne added to the remedial arsenal in maritime cases, but what, if anything, it removed from admiralty's stock.8 The federal cast of admiralty law, we have observed, means that "state law must yield to the needs of a uniform federal maritime law when this Court finds inroads on a harmonious system[,] [b]ut this limitation still leaves the States a wide scope." Romero v. International Terminal Operating Co., 358 U. S. 354, 373 (1959). Our precedent does not precisely delineate that scope. As we recently acknowledged, "[i]t would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in our admiralty jurisprudence." American Dredging Co. v. Miller, 510 U. S. 443, 452 (1994). We attempt no grand synthesis or reconciliation of our precedent today, but confine our inquiry to the modest question whether it was Moragne's design to terminate recourse to state remedies when nonseafarers meet death in territorial waters.211maha correctly points out that uniformity concerns informed our decision in Moragne.The uniformity concerns that prompted us to overrule The Harrisburg, however, were of a different order than those invoked by Yamaha. Moragne did not reexamine the soundness of The Harrisburg out of concern that state monetary awards in maritime wrongful-death cases were excessive, or that variations in the remedies afforded by the States threatened to interfere with the harmonious operation of maritime law. Variations of this sort had long been deemed compatible with federal maritime interests. See Western Fuel, 257 U. S., at 242. The uniformity concern that drove our decision in Moragne related, instead, to the availability of unseaworthiness as a basis of liability.By 1970, when Moragne was decided, claims premised on unseaworthiness had become "the principal vehicle for recovery" by seamen and other maritime workers injured or killed in the course of their employment. Moragne, 398 U. S., at 399. But with The Harrisburg in place, troubling anomalies had developed that many times precluded the survivors of maritime workers from recovering for deaths caused by an unseaworthy vessel. The Moragne Court identified three anomalies and concluded they could no longer be tolerated.First, the Court noted that "within territorial waters, identical conduct violating federal law (here the furnishing of an unseaworthy vessel) produces liability if the victim is merely injured, but frequently not if he is killed." 398 U. S., at 395. This occurred because in nonfatal injury cases, state substantive liability standards were superseded by federal maritime law, see Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625, 628 (1959); Pope & Talbot, 346 U. S., at 409, which provided for maritime worker recovery based on unseaworthiness. But if the same worker met death in the territorial waters of a State whose wrongfuldeath statute did not encompass unseaworthiness (as was the212case in Moragne itself), the survivors could not proceed under that generous standard of liability. See The Tungus, 358 U. S., at 592-593.Second, we explained in Moragne that "identical breaches of the duty to provide a seaworthy ship, resulting in death, produce liability outside the three-mile limit ... but not within the territorial waters of a State whose local statute excludes unseaworthiness claims." 398 U. S., at 395. This occurred because survivors of a maritime worker killed on the high seas could sue for wrongful death under the Death on the High Seas Act (DOHSA), 46 U. S. C. App. § 761 et seq. (1988 ed.), which encompasses unseaworthiness as a basis of liability. Moragne, 398 U. S., at 395 (citing Kernan v. American Dredging Co., 355 U. S. 426, 430, n. 4 (1958)).Finally, we pointed out that "a true seaman [a member of a ship's company] ... is provided no remedy for death caused by unseaworthiness within territorial waters, while a longshoreman, to whom the duty of seaworthiness was extended only because he performs work traditionally done by seamen, does have such a remedy when allowed by a state statute." 398 U. S., at 395-396. This anomaly stemmed from the Court's rulings in Lindgren v. United States, 281 U. S. 38 (1930), and Gillespie v. United States Steel Corp., 379 U. S. 148 (1964), that the Jones Act, 46 U. S. C. App. § 688 (1988 ed.), which provides only a negligence-based claim for the wrongful death of seamen, precludes any state remedy, even one accommodating unseaworthiness. As a result, at the time Moragne was decided, the survivors of a longshore worker killed in the territorial waters of a State whose wrongful-death statute incorporated unseaworthiness could sue under that theory, but the survivors of a similarly situated seaman could not.99 As noted earlier, unseaworthiness recovery by longshore workers was terminated by Congress in its 1972 amendments to the Longshore and Harbor Workers' Compensation Act, 33 U. S. C. § 901 et seq. See § 905(b).213The anomalies described in Moragne relate to ships and the workers who serve them, and to a distinctly maritime substantive concept-the unseaworthiness doctrine. The Court surely meant to "assure uniform vindication of federal policies," 398 U. S., at 401, with respect to the matters it examined. The law as it developed under The Harrisburg had forced on the States more than they could bear-the task of "provid[ing] the sole remedy" in cases that did not involve "traditional common-law concepts," but "concepts peculiar to maritime law." 398 U. S., at 401, n. 15 (internal quotation marks omitted). Discarding The Harrisburg and declaring a wrongful-death right of action under general maritime law, the Court concluded, would "remov[e] the tensions and discrepancies" occasioned by the need "to accommodate state remedial statutes to exclusively maritime substantive concepts." 398 U. S., at 401.10Moragne, in sum, centered on the extension of relief, not on the contraction of remedies. The decision recalled that " 'it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.'" Id., at 387 (quoting The Sea Gull, 21 F. Cas. 909, 910 (No. 12,578) (CC Md. 1865) (Chase, C. J.)). The Court tied Petsonella Moragne's plea based on the unseaworthiness10 The Court might have simply overruled The Tungus, see supra, at 209, thus permitting plaintiffs to rely on federal liability standards to obtain state wrongful-death remedies. The petitioner in Moragne, widow of a longshore worker, had urged that course when she sought certiorari. See Moragne v. States Marine Lines, Inc., 398 U. S. 375, 378, n. 1 (1970). But training Moragne solely on The Tungus would have left untouched the survivors of seamen, who remain blocked by the Jones Act from pursuing state wrongful-death claims-whether under a theory of negligence or unseaworthiness. See Gillespie v. United States Steel Corp., 379 U. S. 148, 154-155 (1964). Thus, nothing short of a federal maritime right of action for wrongful death could have achieved uniform access by seafarers to the unseaworthiness doctrine, the Court's driving concern in Moragne. See 398 U. S., at 396, n. 12.214of the vessel to a federal right-of-action anchor,l1 but notably left in place the negligence claim she had stated under Florida's law. See 398 U. S., at 376-377.12Our understanding of Moragne accords with that of theThird Circuit, which Judge Becker set out as follows:"Moragne ... showed no hostility to concurrent application of state wrongful-death statutes. Indeed, to read into Moragne the idea that it was placing a ceiling on recovery for wrongful death, rather than a floor, is somewhat ahistorical. The Moragne cause of action was in many respects a gap-filling measure to ensure that seamen (and their survivors) would all be treated alike. The 'humane and liberal' purpose underlying the general maritime remedy of Moragne was driven by the idea that survivors of seamen killed in state territorial waters should not have been barred from recovery simply because the tort system of the particular state in which a seaman died did not incorporate special maritime doctrines. It is difficult to see how this purpose can be taken as an intent to preclude the operation of state laws that do supply a remedy." 40 F. 3d, at 641-642 (citation omitted).We have reasoned similarly in Sun Ship, Inc. v. Pennsylvania, 447 U. S. 715 (1980), where we held that a State may apply its workers' compensation scheme to land-based injuries that fall within the compass of the Longshore and Har-11 While unseaworthiness was the doctrine immediately at stake in Moragne, the right of action, as stated in the Court's opinion, is "for death caused by violation of maritime duties." Id., at 409. See East River S. S. Corp. v. Transamerica Delaval Inc., 476 U. S. 858, 865 (1986) (maritime law incorporates strict product liability); Kermarec, 358 U. S., at 630 (negligence). See also G. Gilmore & C. Black, The Law of Admiralty 368 (2d ed. 1975).12 Moragne was entertained by the Court of Appeals pursuant to a 28 U. S. C. § 1292(b) certification directed to the District Court's order dismissing the unseaworthiness claim. See 398 U. S., at 376.215bor Workers' Compensation Act, 33 U. S. C. § 901 et seq. See Sun Ship, 447 U. S., at 724 (a State's remedial scheme might be "more generous than federal law" but nevertheless could apply because Congress indicated no concern "about a disparity between adequate federal benefits and superior state benefits") (emphasis in original).13When Congress has prescribed a comprehensive tort recovery regime to be uniformly applied, there is, we have generally recognized, no cause for enlargement of the damages statutorily provided. See Miles, 498 U. S., at 30-36 (Jones Act, rather than general maritime law, determines damages recoverable in action for wrongful death of seamen); Offshore Logistics, Inc. v. Tallentire, 477 U. S. 207, 232 (1986) (DOHSA, which limits damages to pecuniary losses, may not be supplemented by nonpecuniary damages under a state wrongful-death statute); Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 624-625 (1978) (DOHSA precludes damages for loss of society under general maritime law). But Congress has not prescribed remedies for the wrongful deaths of nonseafarers in territorial waters. See Miles, 498 U. S., at 31. There is, however, a relevant congressional disposition. Section 7 of DOHSA states: "The provisions of any State statute giving or regulating rights of action or remedies for death13 Federal maritime law has long accommodated the States' interest in regulating maritime affairs within their territorial waters. See, e. g., Just v. Chambers, 312 U. S. 383, 390 (1941) ("maritime law [is] not a complete and perfect system"; "a considerable body of municipal law ... underlies ... its administration"). States have thus traditionally contributed to the provision of environmental and safety standards for maritime activities. See, e. g., Askew v. American Waterways Operators, Inc., 411 U. S. 325 (1973) (oil pollution); Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960) (air pollution); Kelly v. Washington ex rel. Foss Co., 302 U. S. 1 (1937) (safety inspection); Cooley v. Board of Wardens of Port of Philadelphia ex rel. Soc. for Relief of Distressed Pilots, 12 How. 299 (1852) (pilotage regulation). Permissible state regulation, we have recognized, must be consistent with federal maritime principles and policies. See Romero, 358 U. S., at 373-374.216shall not be affected by this chapter." 46 U. S. C. App. § 767. This statement, by its terms, simply stops DOHSA from displacing state law in territorial waters. See Miles, 498 U. S., at 25; Tallentire, 477 U. S., at 224-225; Moragne, 398 U. S., at 397-398. Taking into account what Congress sought to achieve, we preserve the application of state statutes to deaths within territorial waters.***For the reasons stated, we hold that the damages available for the jet ski death of Natalie Calhoun are properly governed by state law.14 The judgment of the Court of Appeals for the Third Circuit is accordinglyAffirmed

OCTOBER TERM, 1995SyllabusYAMAHA MOTOR CORP., U. S. A., ET AL. v.CALHOUN ET AL., INDIVIDUALLY AND AS ADMINISTRATORS OF THE ESTATE OF CALHOUN, DECEASEDCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 94-1387. Argued October 31, 1995-Decided January 9, 1996Twelve-year-old Natalie Calhoun was killed in a collision in territorial waters off Puerto Rico while riding a jet ski manufactured and distributed by petitioners Yamaha. Natalie's parents, respondents Calhoun, filed this federal diversity and admiralty action for damages against Yamaha, invoking Pennsylvania's wrongful-death and survival statutes. The District Court agreed with Yamaha that the federal maritime wrongful-death action recognized in Moragne v. States Marine Lines, Inc., 398 U. S. 375, controlled to the exclusion of state law. In its order presenting the matter for immediate interlocutory appeal pursuant to 28 U. S. C. § 1292(b), the District Court certified questions of law concerning the recoverability of particular items of damages under Moragne. The Third Circuit granted interlocutory review, but the panel to which the appeal was assigned did not reach the questions presented in the certified order. Instead, the panel addressed and resolved an anterior issue; it held that state remedies remain applicable in accident cases of this type and have not been displaced by the federal maritime wrongful-death action recognized in Moragne.Held:1. Section 1292(b) provides that "[w]hen a district judge, in making ... an order not otherwise appealable ... , shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appealfrom the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order," and specifies that "the Court of Appeals ... may thereupon, in its discretion, permit an appeal to be takenfrom such order" (emphasis added). As that text indicates, the court of appeals can exercise interlocutory jurisdiction over any question fairly included within the order certified by the district court, and is not limited to the particular questions of law therein formulated. Pp. 204-205.2. In maritime wrongful-death cases in which no federal statute specifies the appropriate relief and the decedent was not a seaman, longshore200worker, or person otherwise engaged in a maritime trade, state remedies remain applicable and have not been displaced by the wrongfuldeath action recognized in Moragne. Pp.206-216.(a) In The Harrisburg, 119 U. S. 199, this Court ruled that the general maritime law (a species of judge-made federal common law) did not afford a cause of action for wrongful death. Federal admiralty courts, prior to Moragne, tempered the harshness of The Harrisburg's rule by allowing recovery under state wrongful-death and survival statutes in maritime accident cases. See, e. g., Western Fuel Co. v. Garcia, 257 U. S. 233. Such state laws proved an adequate supplement to federal maritime law, until a series of this Court's decisions transformed the maritime doctrine of unseaworthiness into a rule making shipowners strictly liable to seamen injured by the owners' failure to supply safe ships. See, e. g., Mahnich v. Southern S. S. Co., 321 U. S. 96. By the time Moragne was decided, claims premised on unseaworthiness had become "the principal vehicle for recovery" by seamen and other maritime workers injured or killed in the course of their employment. 398 U. S., at 399. The disparity between the unseaworthiness doctrine's strict liability standard and negligence-based state wrongful-death statutes prompted the Moragne Court, id., at 409, to overrule The Harrisburg and hold that an action "lie[s] under general maritime law for death caused by violation of maritime duties." pp.206-209.(b) This Court rejects Yamaha's argument that Moragne's wrongful-death action covers the waters, creating a uniform federal maritime remedy for all deaths occurring in state territorial waters, and ousting all state remedies previously available to supplement general maritime law. The uniformity concerns that prompted the Moragne Court to overrule The Harrisburg related to ships and the workers who serve them, and to the frequent unavailability of unseaworthiness, a distinctively maritime substantive concept, as a basis of liability under state law. See 398 U. S., at 395-396. The concerns underlying Moragne were of a different order than those invoked by Yamaha. Notably, Yamaha seeks the contraction of remedies, not the extension of relief in light of the "humane and liberal" character of admiralty proceedings recognized in Moragne. See id., at 387. The Moragne Court tied its petitioner's unseaworthiness plea to a federal right-of-action anchor, but left in place the negligence claim she had stated under Florida's law, and thus showed no hostility to concurrent application of state wrongful-death statutes that might provide a more generous remedy. Cf. Sun Ship, Inc. v. Pennsylvania, 447 U. S. 715, 724. No congressionally prescribed, comprehensive tort recovery regime prevents such enlargement of damages here. See Miles v. Apex Marine Corp., 498 U. S. 19, 30-36. The only relevant congressional disposition, the Death on201Full Text of Opinion

1973_72-702

MR. JUSTICE BRENNAN delivered the opinion of the Court.The principal question for decision in this case is whether the bona fide purchaser of a business, who acquires and continues the business with knowledge that his predecessor has committed an unfair labor practice in the discharge of an employee, may be ordered by the National Labor Relations Board to reinstate the employee with backpay.Petitioners are Golden State Bottling Co., Inc. (Golden State), and All American Beverages, Inc. (All American). All American bought Golden State's soft drink bottling and distribution business after the National Labor Relations Board had ordered Golden State, "its officers, agents, successors, and assigns" to reinstate with back pay a driver-salesman, Kenneth L. Baker, whose discharge by Golden State was found by the Board to have been an unfair labor practice. [Footnote 1] In a subsequent backpay Page 414 U. S. 171 specification proceeding to which both Golden State and All American were parties, see 29 CFR §§ 102.52-102.59, the Board found that All American continued after the acquisition to carry on the business without interruption or substantial changes in method of operation, employee complement, or supervisory personnel. In that circumstance, although All American was a bona fide purchaser of the business, unconnected with Golden State, the Board found that All American, having acquired the business with knowledge of the outstanding Board order, was a "successor" for purposes of the National Labor Relations Act and liable for the reinstatement of Baker with backpay under the principles announced in Perma Vinyl Corp., 164 N.L.R.B. 968 (1967), enforced sub nom. United States Pipe & Foundry Co. v. NLRB, 398 F.2d 544 (CA5 1968). [Footnote 2] The Board therefore ordered that Page 414 U. S. 172 All American reinstate Baker and that Golden State and All American jointly or severally pay Baker a specified sum of net backpay. 187 N.L.R.B. 1017 (1971). The Court of Appeals for the Ninth Circuit, one judge dissenting, enforced the order, 467 F.2d 164 (1972). We granted certiorari, 410 U.S. 953 (1973). We affirm.IThere is a threshold question of whether the Court of Appeals erred in determining that the evidence"offered substantial support for the Board's finding that All American purchased [the bottling business] with knowledge of the unfair labor practice litigation."467 F.2d at 165. We address that question mindful of the congressionally imposed limitation on this Court's review of the Court of Appeals' determination:"Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied. 340 U. S. v. Page 414 U. S. 173 NLRB, 340 U. S. 474, 340 U. S. 491 (1951). (Emphasis added.)"Thus limited, we cannot find fault with the Court of Appeals' conclusion that, on the record as a whole, substantial evidence supported the Board's finding that All American purchased the business with knowledge of the unfair labor practice litigation. Eugene Schilling, Golden State's secretary and manager of the bottling business, who had discharged Baker and then closely followed the progress of the litigation, continued with the enterprise under All American's ownership with the title of general manager and "president." Indeed, All American's purchase of the business was conditioned on Schilling's staying on in a managerial capacity; the sales contract expressly stipulated that Schilling "shall have agreed to be employed by [All American] for a period of one year after the Closing Date as General Manager. . . ." Schilling participated on at least one occasion with Golden State's president, Edwin J. Crofoot, in the sale negotiations. Even if strict agency principles would not impute Schilling's knowledge to All American until Schilling actually entered its employ, see Restatement (Second) of Agency § 9(3) (1958); Thomas Engine Corp., 179 N.L.R.B. 1029, 1042 (1970), enforced sub nom. UAW v. NLRB, 442 F.2d 1180 (CA9 1971), the Court of Appeals cannot be said to have "misapprehended or grossly misapplied" the governing standard in appraising this evidence as sufficiently substantial to support an inference that Schilling informed his prospective employer of the litigation before completion of the sale. It is true that both Schilling and Crofoot testified at the hearing in the specification proceeding that they had not informed All American of the litigation before the sale was completed. But the trial examiner refused to credit their testimony in light of documentary evidence from which he inferred that the Golden State officials had Page 414 U. S. 174 attempted to conceal the sale from the Board, 187 N.L.R.B. at 1021. The examiner also refused to credit Crofoot's testimony that, while All American expressly asked him whether any litigation was pending, he did not mention the unfair labor practice case because he had forgotten it, although admitting that he had authorized payment of substantial fees in connection with it. Ibid. Finally, the examiner inferred from the unexplained failure of All American to produce its negotiators as witnesses that their testimony would not have supported All American's disclaimer of knowledge. [Footnote 3]On this state of the record, there is no justification for this Court's intervention, since Universal Camera precludes us from substituting our judgment for that of the Court of Appeals."This is not the place . . . to reverse a Court of Appeals because, were we in its place, we would find the record tilting one way, rather than the other. . . ."NLRB v. Pittsburgh S.S. Co., 340 U. S. 498, 340 U. S. 503 (1951); see Central Hardware Co. v. NLRB, 407 U. S. 539, 407 U. S. 548 (1972).IIThe Board has pursued an uneven course in its treatment of a bona fide successor's liability to remedy the unfair labor practices of its predecessor. In 1944, the Board determined that liability would not be imposed on a bona fide successor, South Carolina Granite Co., 58 N.L.R.B. 1448, enforced sub nom. NLRB v. Blair Quarries, Inc., 152 F.2d 25 (CA4 1945). In 1947, the Board abandoned that view and determined that joint and several remedial responsibility would be imposed upon a bona fide successor who had knowledge of the seller's unfair labor practice at the time of the purchase, Alexander Page 414 U. S. 175 Milburn Co., 78 N.L.R.B. 747. When, however, two Courts of Appeals refused to enforce remedial orders against bona fide successors, NLRB v. Birdsall-Stockdale Motor Co., 208 F.2d 234 (CA10 1953), and NLRB v. Lunder Shoe Corp., 211 F.2d 284 (CA1 1954), the Board, in 1954, reexamined and overruled Alexander Milburn Co., declaring, in Symns Grocery Co., 109 N.L.R.B. 346, that"[n]o provision of the [National Labor Relations] Act authorizes the Board to impose the responsibility for remedying unfair labor practices on persons who did not engage therein."Id. at 348. Finally, in 1967, in yet another turnabout, the Board overruled Symns Grocery Co. in Perma Vinyl, supra, and announced that, in circumstances there defined, see n 2, supra, remedial orders would be imposed upon bona fide successors for the unfair labor practices of their predecessors.We must consider at the outset whether the issuance of a reinstatement and backpay order against a bona fide successor exceeds the Board's remedial powers under § 10(c) of the Act, 29 U.S.C. § 160(c). Section 10(c), in pertinent part, provides:"If upon the preponderance of the testimony taken, the Board shall be of the opinion that any person named in the complaint has engaged in . . . any such unfair labor practice, then the Board . . . shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act. . . ."(Emphasis added.) The Board's restrictive view in Symns Grocery Co. of its remedial powers derived from a limitation perceived to inhere in the words "any person named in the complaint has engaged in . . . any such unfair labor practice" Page 414 U. S. 176(emphasis added). These words were regarded as precluding authority to issue remedial orders against persons, like bona fide successors, who had not perpetrated the unfair labor practice. In Perma Vinyl, however, the Board found a broader authority in the words of the section authorizing the Board "to take such affirmative action . . . as will effectuate the policies of this Act." These words were construed as granting"broad administrative power . . . to frame such remedial orders . . . not, of course, restricted to requiring remedial action by the offending employer alone,"164 N.L.R.B. at 969, as were necessary to further the public interest subserved by the Act. See NLRB v. Colten, 105 F.2d 179 (CA6 1939).We agree that the Board's remedial powers under § 10(c) include broad discretion to fashion and issue the order before us as relief adequate to achieve the ends, and effectuate the policies, of the Act. Early on, this Court recognized that § 10(c) does not limit the Board's remedial powers to the actual perpetrator of an unfair labor practice, and thereby prevent the Board from issuing orders binding a successor who did not himself commit the unlawful act. We have said that a Board order that, as in this case, runs to the "officers, agents, successors, and assigns" of an offending employer may be applied not only to a new employer who is "merely a disguised continuance of the old employer," Southport Petroleum Co. v. NLRB, 315 U. S. 100, 315 U. S. 106 (1942), but also,"'in appropriate circumstances . . . , [to] those to whom the business may have been transferred, whether as a means of evading the judgment or for other reasons.'"Regal Knitwear Co. v. NLRB, 324 U. S. 9, 324 U. S. 14 (1945) (emphasis added); see also NLRB v. Ozark Hardwood Co., 282 F.2d 1, 5 (CA8 1960). If the words "person named in the complaint has engaged in . . . any . . . unfair labor practice" in § 10(c) do not restrict Board authority to prevent Page 414 U. S. 177 orders running to the offending employer's successors and assigns who have acquired the business as a means of evading the Board order, we do not see how those words may be read to bar the Board from issuing reinstatement and backpay orders against bona fide successors when the Board has properly found such orders to be necessary to protect the public interest in effectuating the policies of the Act. The Board's orders run to the evader and the bona fide purchaser, not because the act of evasion or the bona fide purchase is an unfair labor practice, but because the Board is obligated to effectuate the policies of the Act. Construing § 10(c) thus to grant the Board remedial power to issue such orders results in a reading of the section, as it should be read, in the light of "the provisions of the whole law, and . . . its object and policy.'" Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 350 U. S. 285 (1956); see NLRB v. Lion Oil Co., 352 U. S. 282, 352 U. S. 288 (1957).It is also argued, however, that Fed.Rule Civ.Proc. 65(d), in any event, is a bar to judicial enforcement of a Board order requiring that a bona fide successor reinstate with backpay an employee illegally discharged by its predecessor. We disagree. [Footnote 4] Rule 65(d) provides that Page 414 U. S. 178 injunctions and restraining orders shall be"binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise."See generally O. Fiss, Injunctions 691-700 (1972). We reject petitioners' contention that Real Knitwear Co. v. NLRB, supra, at 14, supports the argument that this Rule is a bar to judicial authority to enforce Board orders against bona fide successors. In Real Knitwear, the Court refused the offending employer's application to strike the phrase "successors and assigns" from the Board's order, citing Walling v. James v. Reuter, Inc., 321 U. S. 671 (1944), which involved an injunction against violation of the Fair Labor Standards Act. Real Knitwear treated a Board cease and desist order as "somewhat analogous" to such an injunction, and stated:"'Not only is such an injunction enforceable by contempt proceedings against the corporation, its agents and officers and those individuals associated with it in the conduct of its business, but it may also, in appropriate circumstances, be enforced against those to whom the business may have been Page 414 U. S. 179 transferred, whether as a means of evading the judgment or for other reasons.' . . .""We do not undertake to decide whether or under what circumstances any kind of successor or assign will be liable for violation of a Labor Board order. . . . [W]hether one brings himself in contempt as a 'successor or assign' depends on an appraisal of his relations and behavior, and not upon mere construction of terms of the order."324 U.S. at 324 U. S. 14-15.Plainly then, Regal Knitwear recognizes that Rule 65(d) is not a bar to enforcement of all Board orders running to successors or assigns not themselves offending employers. The Court simply left open the question of whether the Rule precludes the enforcement of remedial orders running to a successor who is a bona fide purchaser. We answer that question today by holding that the Rule is not a bar to judicial enforcement of the Board order entered against the bona fide successor in this case.Rule 65(d)"is derived from the common law doctrine that a decree of injunction not only binds the parties defendant, but also those identified with them in interest, in 'privity' with them, represented by them or subject to their control."Regal Knitwear, 324 U.S. at 324 U. S. 14. Persons acquiring an interest in property that is a subject of litigation are bound by, or entitled to the benefit of, a subsequent judgment, despite a lack of knowledge. Restatement of Judgments § 89, and comment c (1942); see 1 J. Story, Equity Jurisprudence § 536 (14th ed.1918). This principle has not been limited to in rem or quasi in rem proceedings. Restatement of Judgments, supra, § 89, comment d; see ICC v Western N.Y. & P. R. Co., 82 F. 192, 194 (WD Pa. 1897). We apply that principle here in order to effectuate the public policies of the Act."Courts of equity may, and frequently Page 414 U. S. 180 do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustomed to go when only private interests are involved."Virginian R. Co. v. System Federation, 300 U. S. 515, 300 U. S. 552 (1937); see Walling v. James v. Reuter, Inc., 321 U.S. at 321 U. S. 674-675. We hold that a bona fide purchaser, acquiring, with knowledge that the wrong remains unremedied, the employing enterprise which was the locus of the unfair labor practice, may be considered in privity with its predecessor for purposes of Rule 65(d). Cf. United States v. Hall, 472 F.2d 261, 266-267 (CA5 1972); Rivera v. Lawton, 35 F.2d 823 (CA1 1929); United States v. Dean Rubber Mfg. Co., 71 F. Supp. 96 (WD Mo.1946); United Gilpin Corp. v. Wilmore, 100 Colo. 453, 68 P.2d 34 (1937); 7 J. Moore, Federal Practice � 65.13, p. 109 and n. 1 (2d ed.1973).Our holding in no way contravenes the policy underlying Rule 65(d) of not having"order[s] or injunction[s] so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law."Regal Knitwear, 324 U.S. at 324 U. S. 13; see Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (CA2 1930). The tie between the offending employer and the bona fide purchaser of the business, supplied by a Board finding of a continuing business enterprise, establishes the requisite relationship of dependence. Moreover, procedures were announced in Perma Vinyl which provide the necessary procedural safeguards. There will be no adjudication of liability against a bona fide successor"without affording [it] a full opportunity at a hearing, after adequate notice, to present evidence on the question of whether it is a successor which is responsible for remedying a predecessor's unfair labor practices. The successor [will] also be entitled, of course, to be heard against the enforcement of any order issued against it."164 N.L.R.B. at 969. Page 414 U. S. 181In this case, All American has no complaint that it was denied due notice and a fair hearing. It was made a parry to the supplemental backpay specification proceeding, given notice of the hearing, and afforded full opportunity, with the assistance of counsel, to contest the question of its successorship for purposes of the Act and its knowledge of the pendency of the unfair labor practice litigation at the time of purchase.We now turn to the question whether the Board properly exercised its discretion in issuing the order against All American. The Board's decisional process in the Perma Vinyl line of cases has involved striking a balance between the conflicting legitimate interests of the bona fide successor, the public, and the affected employee. What we said of the Board's decisional process in another context is pertinent here:"The ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review."NLRB v. Teamsters Local 4, 353 U. S. 87, 353 U. S. 96 (1957).The Board's Perma Vinyl principles introduced into the balancing process an emphasis upon protection for the victimized employee:"Especially in need of help, it seems to us, are the employee victims of unfair labor practices who, because of their unlawful discharge, are now without meaningful remedy when title to the employing business operation changes hands."164 N.L.R.B. at 969. The Board found support for this policy, and we think Page 414 U. S. 182 properly, in the Court's observation in John Wiley Sons, Inc. v. Livingston, 376 U. S. 543, 376 U. S. 549 (1964):"Employees . . . ordinarily do not take part in negotiations leading to a change in corporate ownership. The negotiations will ordinarily not concern the wellbeing of the employees, whose advantage or disadvantage, potentially great, will inevitably be incidental to the main considerations. The objectives of national labor policy, reflected in established principles of federal law, require that the rightful prerogative of owners independently to rearrange their businesses and even eliminate themselves as employers be balanced by some protection to the employees from a sudden change in the employment relationship."In Wiley, a labor union sued under § 301 of the Labor Management Relations Act, 1947, 61 Stat. 156, 29 U.S.C. § 185, to compel a corporate employer to arbitrate under a collective bargaining agreement. The agreement originally had been entered into with another corporation which had subsequently merged with Wiley for genuine business reasons. We held that the disappearance of the contracting corporation by merger did not necessarily terminate the rights of employees guaranteed by the agreement, and that the successor employer could be compelled to arbitrate so long as there was a "substantial continuity of identity in the business enterprise," evidenced there by the wholesale transfer of the predecessor's employees to the successor. 376 U.S. at 376 U. S. 551. [Footnote 5] Page 414 U. S. 183Later, in NLRB v. Burns International Security Services, Inc., 406 U. S. 272 (1972), the Court extended the Wiley principle to a case where the original employer, a plant protection company, was displaced by a different company. The new company hired a majority of the employees of the old company. The Court held that the new company had been properly ordered to bargain with the bargaining representative which had been certified to the old company, since the bargaining unit remained essentially unchanged. It was also held, however, that the new employer was not bound by the collective bargaining agreement agreed to by the union and the predecessor employer, inasmuch as § 8(d) of the Act, as well as the legislative history of the labor laws, reflected a policy against compelling a party to agree to substantive contractual obligations. 406 U.S. at 406 U. S. 281-284, Page 414 U. S. 184 406 U. S. 291. Similarly, the Court refused to bind the union, since it might have made bargaining concessions with the previous employer which it would not necessarily agree to in negotiations with the successor. Id. at 414 U. S. 288.We in no way qualify the Burns holdings in concluding that the Board's order against All American strikes an equitable balance. [Footnote 6] When a new employer, such as All American, has acquired substantial assets of its predecessor and continued, without interruption or substantial change, the predecessor's business operations, those employees who have been retained will understandably view their job situations as essentially unaltered. Under these circumstances, the employees may well perceive the successor's failure to remedy the predecessor employer's unfair labor practices arising out of an unlawful discharge as a continuation of the predecessor's labor policies. To the extent that the employees' legitimate expectation is that the unfair labor practices will be remedied, a successor's failure to do so may result in labor unrest as the employees engage in collective activity to force remedial action. Similarly, if the employees identify the new employer's labor policies with those of the predecessor but do not take collective action, the successor may benefit from the unfair labor practices due to a continuing deterrent effect on union activities. Moreover, the Board's experience may reasonably lead it to believe that employers Page 414 U. S. 185 intent on suppressing union activity may select for discharge those employees most actively engaged in union affairs, so that a failure to reinstate may result in a leadership vacuum in the bargaining unit. Cf. Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 313 U. S. 193 (1941). Further, unlike Burns, where an important labor policy opposed saddling the successor employer with the obligations of the collective bargaining agreement, there is no underlying congressional policy here militating against the imposition of liability.Avoidance of labor strife, prevention of a deterrent effect on the exercise of rights guaranteed employees by § 7 of the Act, 29 U.S.C. § 157, and protection for the victimized employee -- all important policies subserved by the National Labor Relations Act, see 29 U.S.C. § 141 -- are achieved at a relatively minimal cost to the bona fide successor. Since the successor must have notice before liability can be imposed,"his potential liability for remedying the unfair labor practices is a matter which can be reflected in the price he pays for the business, or he may secure an indemnity clause in the sales contract which will indemnify him for liability arising from the seller's unfair labor practices."Perma Vinyl Corp., 164 N.L.R.B. at 969. If the reinstated employee does not effectively perform, he may, of course, be discharged for cause. See 29 U.S.C. § 160(C). [Footnote 7] Page 414 U. S. 186IIIGolden State attacked in the Court of Appeals the provision of the Board's order directing that it and All American jointly or severally pay Baker a specified sum of net backpay. Golden State contends that, at most, it"should be ordered to pay to Baker back pay he would have earned as a driver-salesman in Golden State's employ from the date of this wrongful termination until the date of sale of the bottling company by Golden State, January 31, 1968."Brief for Petitioners 60. [Footnote 8] The Court of Appeals declined to consider this argument because Golden State had agreed orally and in the contract of sale to indemnify All American for any backpay paid Baker by All American, and therefore was "liable for such wages by virtue of its agreement, whether or not it would also be liable absent that agreement." 467 F.2d at 166. But Golden State's contractual obligation may be subject to contractual defenses, and, for that reason, may not, in fact, be the equivalent of the liability imposed upon Golden State by the order. We shall therefore decide Golden State's challenge to the validity of the imposition of joint and several liability upon Golden State. We find no merit in the challenge.The Board justified such provisions in Perma Vinyl in these words:"With respect to the offending employer himself, it must be obvious that it cannot be in the public interest to permit the violator of the Act to shed all Page 414 U. S. 187 responsibility for remedying his own unfair labor practices by simply disposing of the business. If he has unlawfully discharged employees before transferring ownership to another, he should at least be required to make whole the dischargees for any loss of pay suffered by reason of the discharges until such time as they secure substantially equivalent employment with another employer."164 N.L.R.B. at 970. In addition, joint and several liability will more fully insure that the employee is fully recompensed by protecting him, e.g., against the insolvency of the successor. The possibility that the successor will unjustifiably delay reinstatement to the predecessor's prejudice can be met by a protective provision in the contract of sale. We cannot say that the Board has erred in thus "striking [the] balance to effectuate national labor policy. . . ." NLRB v. Teamsters Local 449, 353 U.S. at 353 U. S. 96. [Footnote 9]IVWhen Baker was discharged on August 16, 1963, he was Golden State's leading driver-salesman. On October 1, 1964, Golden State began converting its top driver-salesmen to distributors, or independent contractors, who realized net profits, after the deduction of their operating expenses, from the purchase of products from Golden State and the resale to customers. The Board found that Baker would have become a distributor on October 1, 1964, but for his discharge on August 16, 1963. The Board therefore computed Baker's gross backpay Page 414 U. S. 188 subsequent to October 1, 1964, on the basis of what he would have earned as a distributor after that date.Petitioners argue that the change on October 1, 1964, from driver-salesman to distributor ended their liability to Baker on that date, because distributors are "independent contractors" excluded from coverage of the Act by 29 U.S.C. § 152(3). The Court of Appeals rejected that contention, stating:"However, it is undisputed that, when Baker was discriminatorily discharged he was an ordinary employee. The Act's remedies are not thwarted by the fact that an employee who is within the Act's protections when the discrimination occurs would have been promoted or transferred to a position not covered by the Act if he had not been discriminated against. NLRB v. Bell Aircraft Corp., 206 F.2d 235, 236-237 (2d Cir.1953)."467 F.2d at 166. We agree with the Court of Appeals, and add only the observation that its conclusion is buttressed by the consideration that an order requiring reinstatement and backpay is aimed at "restoring the economic status quo that would have obtained but for the company's wrongful refusal to reinstate. . . ." NLRB v. J. H. Rutter-Rex Mfg. Co., Inc., 396 U. S. 258, 396 U. S. 263 (1969). [Footnote 10] The Board treats net profits of the employee who goes into business on his own as interim earnings for the purpose of computing net backpay. Mastro Plastics Corp., 136 N.L.R.B. 1342, 1350 (1962), enforced in part, NLRB v. Mastro Plastics Corp., 354 F.2d 170 (CA2 1965). In the effort to restore the economic status quo that would have Page 414 U. S. 189 obtained but for Baker's wrongful discharge, it was also proper to compute what he would have earned after October 1, 1964, on the basis of his net profits as a distributor. Cf. NLRB v. Rice Lake Creamery Co., 124 U.S.App.D.C. 355, 358, 365 F.2d 888, 891 (1966); NLRB v. Mooney Aircraft, Inc., 375 F.2d 402 (CA5 1967).Affirmed

U.S. Supreme CourtGolden State Bottling Co., Inc. v. NLRB, 414 U.S. 168 (1973)Golden State Bottling Co., Inc. v. NLRBNo. 72-702Argued October 11, 1973Decided December 5, 1973414 U.S. 168SyllabusPetitioner All American Beverages, Inc. (All American), purchased the soft drink bottling and distribution business of petitioner Golden State Bottling Co. (Golden State) after the National Labor Relations Board (NLRB) had ordered Golden State, "its officers, agents, successors, and assigns" to reinstate with backpay a driver-salesman whose discharge by Golden State was found to have been an unfair labor practice. In a subsequent back-pay specification proceeding to which both firms were parties, upon finding that All American, after the acquisition, continued the business without interruption or substantial change in operations, employee complement, or supervisory personnel, and that, hence, All American, having acquired the business with knowledge of the outstanding NLRB order, was a "successor" for purposes of the National Labor Relations Act (NLRA) liable for the reinstatement of the driver-salesman with backpay, the NLRB ordered All American to reinstate him and both firms jointly or severally to pay him a specified sum of backpay. The Court of Appeals enforced the order.Held:1. The Court of Appeals did not err in determining that, on the record as a whole, substantial evidence supported the NLRB's finding that All American purchased the business with knowledge of the unfair labor practice litigation, since it cannot be said on the basis of the record that the Court of Appeals "misapprehended or grossly misapplied" the standard of review. Universal Camera Corp. v. NLRB, 340 U. S. 474. Pp. 340 U. S. 172-174.2. The issuance of a reinstatement and backpay order against a bona fide successor that did not itself commit the unfair labor practice does not exceed the NLRB's remedial powers under § 10(c) of the NLRA, since such powers include broad discretion to fashion and issue such an order in order to achieve the ends and effectuate the policies of the Act. Pp. 414 U. S. 175-177. Page 414 U. S. 1693. Federal Rule Civ.Proc. 65(d), which provides that injunctions and restraining orders shall be binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order, does not bar judicial enforcement of the NLRB order running to All American, since a bona fide successor, acquiring, with knowledge that the wrong remains unremedied, the employing enterprise which was the locus of the unfair labor practice, may be considered in privity with its predecessor for purposes of Rule 65(d). Pp. 414 U. S. 177-181.4. The NLRB properly exercised its discretion in issuing the order against All American by striking an equitable balance among the conflicting legitimate interests of the bona fide successor, the public, and the affected employee for purposes of effectuating the national labor policies of avoiding labor strife, preventing a deterrent effect on the exercise of rights guaranteed employees by § 7 of the NLRA, and protecting the victimized employee, such policies being achieved at a relatively minimal cost to the bona fide successor. Pp. 414 U. S. 181-185.5. The NLRB did not err in ordering both firms jointly or severally to pay the driver-salesman a specified sum of backpay, since an offending predecessor employer should at least be required to make the dischargee whole for any loss of pay suffered by reason of the discharge until such time as he secures substantially equivalent employment, since joint and several liability will more fully insure that the employee is fully recompensed by protecting him against, e.g., the successor's insolvency, and since the possibility that the successor will unjustifiably delay reinstatement to the predecessor's prejudice can be met by a protective provision in the contract of sale. Pp. 414 U. S. 186-187.6. The fact that the driver-salesman, but for his discharge as an ordinary employee would, under Golden State's policy, have become a distributor about a year later, and, as an independent contractor, would have been excluded from NLRA coverage, did not preclude the NLRB from including in the gross backpay computation the dischargee's putative earnings as a distributor, since a reinstatement and backpay order is aimed at restoring the status quo that would have obtained but for the employer's unfair labor practice. Pp. 414 U. S. 187-189.467 F.2d 164, affirmed.BRENNAN, J., delivered the opinion for a unanimous Court. Page 414 U. S. 170

1998_97-1642

contractor, the subcontractor sought to collect directly from the Army by asserting an equitable lien on certain funds held by the Army. The Court of Appeals for the Ninth Circuit held that § 10(a) of the Administrative Procedure Act (AP A), 5 U. S. C. § 702, waived the Government's immunity for the subcontractor's claim. We hold that § 702 did not nullify the long settled rule that sovereign immunity bars creditors from enforcing liens on Government property.Participating in a business development program for socially and economically disadvantaged firms run by the Small Business Administration (SBA), the Department of the Army contracted with Verdan Technology, Inc., in September 1993, to install a telephone switching system at an Army depot in Umatilla, Oregon. Verdan, in turn, employed respondent Blue Fox, Inc., as a subcontractor on the project to construct a concrete block building to house the telephone system and to install certain safety and support systems.Under the Miller Act, 40 U. S. C. §§ 270a-270d, a contractor that performs "construction, alteration, or repair of any public building or public work of the United States" generally must post two types of bonds. § 270a(a). First, the contractor must post a "performance bond ... for the protection of the United States" against defaults by the contractor. § 270a(a)(1). Second, the contractor must post a "payment bond ... for the protection of all persons supplying labor and material." § 270a(a)(2). The Miller Act gives the subcontractors and other suppliers "the right to sue on such payment bond for the amount, or the balance thereof, unpaid at the time of institution of such suit and to prosecute said action to final execution and judgment for the sum or sums justly due him." § 270b(a). Although the Army's original solicitation in this case required the contractor to furnish payment and performance bonds if the contract price exceeded $25,000, the Army later amended the solicitation, treated the contract as a "services contract," and deleted258the bond requirements. Verdan therefore did not post any Miller Act bonds.Blue Fox performed its obligations, but Verdan failed to pay it the $46,586.14 that remained due on the subcontract. After receiving notices from Blue Fox that it had not been fully paid, the Army nonetheless disbursed a total of $86,132.33 to Verdan as payment for all work that Verdan had completed. In January 1995, the Army terminated its contract with Verdan for various defaults and another contractor completed the Umatilla project. Blue Fox obtained a default judgment in tribal court against Verdan. Seeing that it could not collect from Verdan or its officers, it sued the Army for the balance due on its contract with Verdan in Federal District Court.1Predicating jurisdiction on 28 U. S. C. § 1331 and the AP A, Blue Fox sought an "equitable lien" on any funds from the Verdan contract not paid to Verdan, or any funds available or appropriated for completion of the Umatilla project, and an order directing payment of those funds to it. Blue Fox also sought an injunction preventing the Army from paying any more money on the Verdan contract or on the follow-on contract until Blue Fox was paid. By the time of the suit, however, the Army had paid all amounts due on the Verdan contract, Blue Fox failed to obtain any preliminary relief, and the Army subsequently paid the replacement contractor the funds remaining on the Verdan contract plus additional funds.21 Although Blue Fox also named the SEA as a defendant, the District Court granted summary judgment in the SEA's favor, the Court of Appeals affirmed that decision, and Blue Fox has not challenged that ruling.2 The Army paid the replacement contractor, in part, with the funds from the undisbursed balance on the Verdan contract (approximately $85,000) which had been designated for certain work that Verdan failed to complete. No funds due to Verdan for work actually performed had been held back or retained by the Army. The Army paid the replacement contractor in July 1995, two months after Blue Fox filed its action against the Army in the District Court.259On cross-motions for summary judgment, the District Court held that the waiver of sovereign immunity provided by the AP A did not apply to respondent's claim against the Army. The District Court thus concluded that it did not have jurisdiction over respondent's claim and accordingly granted the Army's motion for summary judgment. In a split decision, the Court of Appeals for the Ninth Circuit reversed in relevant part. See Blue Fox Inc. v. Small Business Admin., 121 F.3d 1357 (1997). The majority held that under this Court's decision in Bowen v. Massachusetts, 487 U. S. 879 (1988), the APA waives immunity for equitable actions. Based in part on its analysis of several of our cases examining a surety's right of subrogation, the majority held that the AP A had waived the Army's immunity from Blue Fox's suit to recover the amount withheld by the Army. The majority concluded that the lien attached to funds retained by the Army but owed to Verdan at the time the Army received Blue Fox's notice that Verdan had failed to pay. The majority stated that "[t]he Army cannot escape Blue Fox's equitable lien by wrongly paying out funds to the prime contractor when it had notice of Blue Fox's unpaid claims." 121 F. 3d, at 1363.The dissenting judge stated that "no matter how you slice Blue Fox's claim, it seeks funds from the treasury to compensate for the Army's failure to require Verdan to post a bond." Id., at 1364 (opinion of Rymer, J.). In her view, Congress chose to protect subcontractors like Blue Fox through the bond requirements of the Miller Act, not by waiving immunity in the AP A to permit subcontractors to sue the United States directly for amounts owed to them by the prime contractor. Because this rule has been "conventional wisdom for at least fifty years," she did not agree that Congress had waived the Army's sovereign immunity from Blue Fox's suit. Ibid. The Government petitioned for review, and we granted certiorari to decide whether the AP A has260waived the Government's immunity from suits to enforce an equitable lien. 524 U. S. 951 (1998)."Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U. S. 471, 475 (1994). Congress, of course, has waived its immunity for a wide range of suits, including those that seek traditional money damages. Examples are the Federal Tort Claims Act, 28 U. S. C. § 2671 et seq., and the Tucker Act, 28 U. S. C. § 1491.3 They are not involved here. Respondent sued the Army under § 10(a) of the APA, which provides in relevant part:"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party." 5 U. S. C. § 702 (emphasis added).Respondent asks us to hold, as did the court below, that this provision, which waives the Government's immunity from3 The Federal Tort Claims Act provides that, subject to certain exceptions, "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U. S. C. §2674. The Tucker Act grants the Court of Claims jurisdiction "to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U. S. C. § 1491(a)(1). The Tucker Act also gives federal district courts concurrent jurisdiction over claims founded upon the same substantive grounds for relief but not exceeding $10,000 in damages. See § 1346(a)(2).261actions seeking relief "other than money damages," allows subcontractors to place liens on funds held by the United States Government for work completed on a prime contract. We have frequently held, however, that a waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor of the sovereign. See, e. g., Lane v. Pena, 518 U. S. 187, 192 (1996) (citing cases); Library of Congress v. Shaw, 478 U. S. 310, 318 (1986). Such a waiver must also be "unequivocally expressed" in the statutory text. See Lane, supra, at 192. Respondent's claim must therefore meet this high standard.Respondent argues, and the court below held, that our analysis of § 702 in Bowen compels the allowance of respondent's lien. We disagree. In Bowen, we examined the text and legislative history of § 702 to determine whether the Commonwealth of Massachusetts could sue the Secretary of Health and Human Services to enforce a provision of the Medicaid Act that required the payment of certain amounts to the State for Medicaid services. We held that the State's complaint in Bowen was not barred by the AP A's prohibition on suits for money damages. The Court of Appeals below read our decision in Bowen as interpreting § 702's reference to "other than money damages" as waiving immunity from all actions that are equitable in nature. See 121 F. 3d, at 1361 ("Since the APA waives immunity for equitable actions, the district court had jurisdiction under the AP A").Bowen's analysis of § 702, however, did not turn on distinctions between "equitable" actions and other actions, nor could such a distinction have driven the Court's analysis in light of § 702's language. As Bowen recognized, the crucial question under § 702 is not whether a particular claim for relief is "equitable" (a term found nowhere in § 702), but rather what Congress meant by "other than money damages" (the precise terms of § 702). Bowen held that Congress employed this language to distinguish between specific relief and compensatory, or substitute, relief. The Court stated:262"'We begin with the ordinary meaning of the words Congress employed. The term "money damages," 5 U. S. C. § 702, we think, normally refers to a sum of money used as compensatory relief. Damages are given to the plaintiff to substitute for a suffered loss, whereas specific remedies "are not substitute remedies at all, but attempt to give the plaintiff the very thing to which he was entitled."'" 487 U. S., at 895 (quoting Maryland Dept. of Human Resources v. Department of Health and Human Services, 763 F.2d 1441, 1446 (CADC 1985) (citation omitted)).Bowen also concluded from its analysis of relevant legislative history that "the drafters had in mind the time-honored distinction between damages and specific relief." 487 U. S., at 897. Bowen's interpretation of § 702 thus hinged on the distinction between specific relief and substitute relief, not between equitable and nonequitable categories of remedies.We accordingly applied this interpretation of § 702 to the State's suit to overturn a decision by the Secretary disallowing reimbursement under the Medicaid Act. We held that the State's suit was not one "seeking money in compensation for the damage sustained by the failure of the Federal Government to pay as mandated; rather, it [was] a suit seeking to enforce the statutory mandate itself, which happens to be one for the payment of money." Id., at 900. The Court therefore concluded that the substance of the State's suit was one for specific relief, not money damages, and hence the suit fell within § 702's waiver of immunity.It is clear from Bowen that the equitable nature of the lien sought by respondent here does not mean that its ultimate claim was not one for "money damages" within the meaning of § 702. Liens, whether equitable or legal, are merely a means to the end of satisfying a claim for the recovery of money. Indeed, equitable liens by their nature constitute substitute or compensatory relief rather than specific relief. An equitable lien does not "give the plaintiff the very thing263to which he was entitled," id., at 895 (citations and internal quotation marks omitted); instead, it merely grants a plaintiff "a security interest in the property, which [the plaintiff] can then use to satisfy a money claim," usually a claim for unjust enrichment, 1 D. Dobbs, Law of Remedies § 4.3(3), p. 601 (2d ed. 1993); see also Laycock, The Scope and Significance of Restitution, 67 Texas L. Rev. 1277, 1290 (1989) ("The equitable lien is a hybrid, granting a money judgment and securing its collection with a lien on the specific thing"). Commentators have warned not to view equitable liens as anything more than substitute relief:"[T]he form of the remedy requires that [a] lien or charge should be established, and then enforced, and the amount due obtained by a sale total or partial of the fund, or by a sequestration of its rents, profits, and proceeds. These preliminary steps may, on a casual view, be misleading as to the nature of the remedy, and may cause it to appear to be something more than compensatory; but a closer view shows that all these steps are merely auxiliary, and that the real remedy, the final object of the proceeding, is the pecuniary recovery." 1 J. Pomeroy, Equity Jurisprudence § 112, p. 148 (5th ed.1941).See also Dobbs, supra, at 601 (equitable lien foreclosure "results in only a monetary payment to the plaintiff and obviously does not carry with it the advantages of recovering specific property").We accordingly hold that the sort of equitable lien sought by respondent here constitutes a claim for "money damages"; its goal is to seize or attach money in the hands of the Government as compensation for the loss resulting from the default of the prime contractor. As a form of substitute and not specific relief, respondent's action to enforce an equitable lien falls outside of § 702's waiver of sovereign immunity.264Our holding today is in accord with our precedent establishing that sovereign immunity bars creditors from attaching or garnishing funds in the Treasury, see Buchanan v. Alexander, 4 How. 20 (1845), or enforcing liens against property owned by the United States, see United States v. Ansonia Brass & Copper Co., 218 U. S. 452, 471 (1910); United States ex rel. Hill v. American Surety Co. of N. Y., 200 U. S. 197,203 (1906) ("As against the United States, no lien can be provided upon its public buildings or grounds"). Respondent points to nothing in the text or history of § 702 that suggests that Congress intended to overrule this precedent, let alone anything that "'unequivocally express[esJ''' such an intent. Lane, 518 U. S., at 192.Instead, recognizing that sovereign immunity left subcontractors and suppliers without a remedy against the Government when the general contractor became insolvent, Congress enacted the Miller Act (and its predecessor the Heard Act) to protect these workers. See United States v. Munsey Trust Co., 332 U. S. 234, 241 (1947); Ansonia Brass & Copper Co., supra, at 471. But the Miller Act by its terms only gives subcontractors the right to sue on the surety bond posted by the prime contractor, not the right to recover their losses directly from the Government.Respondent contends that in several cases examining a surety's right of equitable subrogation, this Court suggested that subcontractors and suppliers can seek compensation directly against the Government. See, e. g., Prairie State Bank v. United States, 164 U. S. 227 (1896); Henningsen v. United States Fidelity & Guaranty Co. of Baltimore, 208 U. S. 404, 410 (1908); Pearlman v. Reliance Ins. Co., 371 U. S. 132, 141 (1962) (stating that "the laborers and materialmen had a right to be paid out of the fund [retained by the Government]" and hence a surety was subrogated to this right); but see Munsey Trust Co., supra, at 241 ("[N]othing is more clear than that laborers and materialmen do not have enforceable rights against the United States for their com-265pensation"). None of the cases relied upon by respondent involved a question of sovereign immunity, and, in fact, none involved a subcontractor directly asserting a claim against the Government. Instead, these cases dealt with disputes between private parties over priority to funds which had been transferred out of the Treasury and as to which the Government had disclaimed any ownership. They do not in any way disturb the established rule that, unless waived by Congress, sovereign immunity bars subcontractors and other creditors from enforcing liens on Government property or funds to recoup their losses.The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1998SyllabusDEPARTMENT OF THE ARMY v. BLUE FOX, INC.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 97-1642. Argued December 1, 1998-Decided January 20,1999Verdan Technology, Inc., an insolvent prime contractor, failed to pay respondent Blue Fox, Inc., a subcontractor, for work the latter completed on a construction project for petitioner, the Department of the Army. Because the Army did not require Verdan to post Miller Act bonds, Blue Fox sued the Army directly, asserting an equitable lien on certain funds held by the Army. Holding that the waiver of sovereign immunity in § lO(a) of the Administrative Procedure Act (APA), 5 U. S. C. § 702, did not apply to Blue Fox's claim, the District Court concluded that it lacked jurisdiction and granted the Army summary judgment. The Ninth Circuit reversed in relevant part, holding that under Bowen v. Massachusetts, 487 U. S. 879, and this Court's cases examining a surety's right of subrogation, the APA waives immunity for equitable actions, thus compelling allowance of Blue Fox's equitable lien.Held: Section 702 does not nullify the long settled rule that, unless waived by Congress, sovereign immunity bars creditors from enforcing liens on Government property. Although § 702 waives the Government's immunity from actions seeking relief "other than money damages," the waiver must be strictly construed, in terms of its scope, in the sovereign's favor and must be "unequivocally expressed" in the statutory text. See Lane v. Pena, 518 U. S. 187, 192. Blue Fox's claim does not meet this high standard. Bowen's analysis of § 702 did not turn on whether a particular claim for relief is "equitable" (a term not found in § 702), but on whether the claim is for "money damages," i. e., a sum used as compensatory relief to substitute for a suffered loss, as opposed to a specific remedy that attempts to give the plaintiff the very thing to which he was entitled. See 487 U. S., at 895, 897, 900. The sort of equitable lien Blue Fox sought here constitutes a "money damages" claim within § 702's meaning; its goal is to seize or attach money in the Government's hands as compensation for the loss resulting from Verdan's default. As a form of substitute and not specific relief, Blue Fox's action to enforce an equitable lien falls outside the scope of § 702's immunity waiver. This holding accords with the Court's precedent establishing that sovereign immunity bars creditors from attaching or garnishing funds in the Treasury, see Buchanan v. Alexander, 4 How. 20, and enforcing liens against property owned by the United States,256see, e. g., United States v. Ansonia Brass & Copper Co., 218 U. S. 452, 471. Respondent points to nothing in § 702's text or history that suggests that Congress intended to overrule this precedent, let alone anything that "unequivocally express[es]" such an intent. Lane, supra, at 192. Instead, recognizing that sovereign immunity left subcontractors and suppliers without a remedy against the Government when the general contractor became insolvent, Congress enacted the Miller Act, which by its terms only gives subcontractors the right to sue on the prime contractor's surety bond, not the right to recover its losses directly from the Government. The cases examining a surety's right of equitable subrogation, see, e. g., Pearlman v. Reliance Ins. Co., 371 U. S. 132, 141, do not suggest that subcontractors can seek compensation directly against the Government, since none of them involved a sovereign immunity question or a subcontractor directly asserting a claim against the Government. Pp. 260-265.121 F.3d 1357, reversed and remanded.REHNQUIST, C. J., delivered the opinion for a unanimous Court.Jeffrey A. Lamken argued the cause for petitioner. With him on the briefs were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, and Barbara C. Biddle.Thomas F. Spaulding argued the cause for respondent.With him on the brief was David A. Webster. *CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.An insolvent prime contractor failed to pay a subcontractor for work the latter completed on a construction project for the Department of the Army. The Department of the Army having required no Miller Act bond from the prime*Briefs of amici curiae urging affirmance were filed for the American Subcontractors Association by David R. Hendrick and Joel S. Rubinstein; and for the Chamber of Commerce of the United States by Herbert L. Fenster, Tami Lyn Azorsky, and Robin S. Conrad.Edward G. Gallagher filed a brief for the Surety Association of America as amicus curiae.257Full Text of Opinion

1989_88-1323

Justice SCALIA delivered the opinion of the Court.If the Secretary of Health and Human Services determines that a beneficiary has received "more or less than the correct Page 494 U. S. 85 amount of payment," the Social Security Act requires him to effect "proper adjustment or recovery," subject to certain restrictions in the case of overpayments. This case requires us to decide whether the Secretary's so-called "netting" regulations, under which he calculates the difference between past underpayments and past overpayments, are merely a permissible method of determining whether "more or less than the correct amount of payment" was made, or are instead, as to netted-out overpayments, an "adjustment or recovery" that must comply with procedures for recovery of overpayments imposed by the Act.ITwo statutory benefit programs established by the Social Security Act (Act) are involved: the Old-Age, Survivors, and Disability Insurance program (OASDI), 53 Stat. 1362, as amended, 42 U.S.C. § 401 et seq. (1982 ed. and Supp. IV), and the Supplemental Security Income program (SSI), 86 Stat. 1465, 42 U.S.C. § 1381 et seq. (1982 ed. and Supp. IV). Millions of Americans receive benefits under these programs; inevitably, some beneficiaries occasionally receive more than their entitlement, and others less. The OASDI program provides the following procedure for correcting such errors:"Whenever the Secretary finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under regulations prescribed by the Secretary, as follows:""(A) With respect to payment to a person of more than the correct amount, the Secretary shall decrease any payment under this subchapter to which such overpaid Page 494 U. S. 86 person is entitled, or shall require such overpaid person or his estate to refund the amount in excess of the correct amount, or shall decrease any payment under this subchapter payable to his estate or to any other person on the basis of the wages and self-employment income which were the basis of the payments to such overpaid person, or shall apply any combination of the foregoing. . . . ""(B) With respect to payment to a person of less than the correct amount, the Secretary shall make payment of the balance of the amount due such underpaid person. . . ."Act § 204(a)(1)(A), (B); 42 U.S.C. § 404(a)(1)(A), (B) (1982 ed., Supp. IV). As to overpayments, the Act provides:"In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience."Act § 204(b); 42 U.S.C. § 404(b) (1982 ed.). The provisions regulating payment errors in the SSI program are substantially similar.** Califano v. Yamasaki, 442 U. S. 682, 442 U. S. 697 (1979), held that the limitation on adjustment or recovery of overpayments imposed by § 204(b) of the Act Page 494 U. S. 87 gives recipients the right to an oral hearing at which they may attempt to convince the Secretary to waive recoupment.In the provisions set forth above, the Act contemplates that the Secretary will "fin[d] [whether] more or less than the correct amount" of payment has been made. Elsewhere, it confers upon the Secretary general authority to"make rules and regulations and to establish procedures, not inconsistent with the provisions of this subchapter, which are necessary or appropriate to carry out such provisions,"Act § 205(a), 42 U.S.C. § 405(a) (1982 ed.); see also Act § 1631(d)(1), 42 U.S.C. § 1383(d)(1) (1982 ed., Supp. IV) (SSI). Pursuant to that authority, the Secretary promulgated the regulations at issue here. The SSI regulation provides:"The amount of an underpayment or overpayment is the difference between the amount paid to a recipient and the amount of payment actually due such recipient for a given period. An overpayment or underpayment period begins with the first month for which there is a difference between the amount paid and the amount actually due for that month. The period ends with the month the initial determination of overpayment or underpayment is made."20 CFR § 416.538 (1989). The OASDI regulation unhelpfully provides that"[t]he amount of an overpayment or underpayment is the difference between the amount paid to the beneficiary and the amount of the payment to which the beneficiary was actually entitled,"20 CFR § 404.504 (1989), but the Secretary has interpreted this as embodying the methodology set forth in the SSI regulation. Dept. of Health and Human Services, Social Security Ruling 81-19a (cum. ed. 1981). Two hypotheticals will illustrate the operation of the netting regulations. Mr. A, entitled to $100 per month, is erroneously paid $80 in January and erroneously paid $150 in February. In March, the Secretary determines that these payments were incorrect, nets the errors (i.e., calculates the difference between the underpayment and the overpayment), Page 494 U. S. 88 and seeks to recover the net overpayment of $30. Mrs. B, also entitled to $100 per month, receives $50 in April and $110 in May. In June, the Secretary makes the incorrect payment determination, nets the errors, and pays out $40. In neither case may the beneficiaries seek to have the underpayment and the overpayment treated separately: Mr. A could not demand $20 for January and seek a waiver of the recoupment of $50 for February, and Mrs. B could not demand $50 for April and seek a waiver for the $10 in May.In the present case, the Secretary made both underpayments and overpayments to each of the respondents, and netted those errors pursuant to the regulations. He determined that three respondents (the original plaintiffs) received net underpayments, and paid that net amount. The other respondents (intervenors below) received net overpayments, and the Secretary offered them hearings to determine whether recoupment should be waived as to the net overpayment. The plaintiffs (later joined by the intervenors) filed this suit under §§ 205(g) and 1631(c)(3) of the Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (1982 ed.), in the United States District Court for the District of Colorado. They claimed that the netting regulations were facially invalid because (1) they were contrary to the Act and (2) they violated beneficiaries' rights to procedural due process. The District Court granted respondents' motion for summary judgment on the former ground, and the Court of Appeals for the Tenth Circuit affirmed in all relevant respects. 853 F.2d 1532 (1988). The court noted that two other Courts of Appeals had upheld the netting regulations against similar attacks. Id. at 1536-1537 (citing Lugo v. Schweicker, 776 F.2d 1143 (CA3 1985), and Webb v. Bowen, 851 F.2d 190 (CA8 1988)).We granted certiorari. 490 U.S. 1080.IIOur mode of reviewing challenges to an agency's interpretation of its governing statute is well established: we first Page 494 U. S. 89 ask"whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress."Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 842-843 (1984)."In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole."K Mart Corp. v. Cartier, Inc., 486 U. S. 281, 486 U. S. 291 (1988); see also Mead Corp. v. Tilley, 490 U. S. 714, 490 U. S. 722-723 (1989). But"if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute,"Chevron, supra, 467 U.S. at 467 U. S. 843, that is, whether the agency's construction is "rational and consistent with the statute." NLRB v. United Food & Commercial Workers, 484 U. S. 112, 484 U. S. 123 (1987). These principles apply fully to the Secretary's administration of the Act. See Schweiker v Gray Panthers, 453 U. S. 34, 453 U. S. 43 (1981); Batterton v. Francis, 432 U. S. 416, 432 U. S. 425 (1977).AWe first consider whether the Act speaks directly to the validity of the netting regulations. Two provisions are relevant: a general authorization, and a specific limitation. First, the Act authorizes the Secretary to determine whether "more or less than the correct amount" has been paid. 42 U.S.C. §§ 404(a), 1383(b)(1)(A) (1982 ed., Supp. IV). The Act does not define the term "correct amount." It assuredly could be construed to refer to the amount properly owing for a given month. If that were the only possible interpretation, respondents would prevail, since the netting regulations ascertain the correct amount for a longer time period. But the Act does not foreclose a more expansive interpretation of "correct amount," viz., the amount properly owing as of the date of the determination. Although the Act elsewhere describes OASDI and SSI as monthly benefit programs, e.g., Page 494 U. S. 90 Act § 202(a), 42 U.S.C. § 402(a) (1982 ed., Supp. IV); Act § 1611(c)(1), 42 U.S.C. § 1382(c)(1) (1982 ed., Supp. IV), it nowhere specifies that the correctness of payments must be determined on a month-by-month basis.The fuller context of the OASDI provisions suggests that Congress, in authorizing the Secretary to determine whether the "correct amount" was paid, did not prohibit him from making that determination for more than a monthly time period. The Act authorizes a determination of whether "the correct amount of payment has been made," 42 U.S.C. § 404(a)(1), and mandates adjustments "[w]ith respect to payment to a person of more than the correct amount," § 404(a)(1)(A), and "[w]ith respect to payment to a person of less than the correct amount," § 404(a)(1)(B). If Congress had in mind only shortfalls or excesses in individual monthly payments, rather than in the overall payment balance, it would have been more natural to refer to "the correct amount of any payment," and to require adjustment "with respect to any payment . . . of less [or more] than the correct amount." This terminology is used elsewhere in § 204(a)(1)(A), whenever individual monthly payments are at issue ("the Secretary shall decrease any payment under this subchapter to which such overpaid person is entitled"; "shall decrease any payment under this subchapter payable to his estate"). 42 U.S.C. § 404(a)(1)(A) (emphases added). Moreover, the provision governing adjustment of overpayments to a deceased beneficiary seems to contemplate computation on a multi-payment basis ("the Secretary . . . shall decrease any payment under this subchapter payable to his estate or to any other person on the basis of the wages and self-employment income, which were the basis of the payments to such overpaid person") Ibid. (emphasis added).The Act's provisions governing SSI are slightly different, but in no way contradict the Secretary's position. They authorize Page 494 U. S. 91 the Secretary to determine whether "more or less than the correct amount of benefits has been paid," 42 U.S.C. § 1383(b)(1)(A) (1982 ed., Supp. IV) (emphasis added). Had this read "more or less than the correct amount of any benefit" it might support respondents' position, but as written it at least bears (if it does not indeed favor) the interpretation that more than a single monthly benefit is at issue.Respondents nevertheless maintain, as did the Court of Appeals, that another provision of the Act directly precludes the Secretary from netting underpayments and overpayments. They point to § 204(b), 42 U.S.C. § 404(b) (1982 ed.), which provides:"In any case in which more than the correct amount of payment has been made, there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against equity and good conscience."See also Act § 1631(b)(1)(B), 42 U.S.C. § 1383(b)(1)(B) (1982 ed., Supp. IV) (SSI). Respondents argue that by using the phrase "adjustment or recovery," Congress intended to subject to this requirement all collection methods, including the set off effected by netting. They claim this broad meaning is given to the words "adjustment" and "recovery" by other Social Security regulations (e.g., 20 CFR §§ 404.502-404.503 (1989)), common usage (e.g., Webster's Third New International Dictionary 27, 1898 (1981) (hereinafter Webster's)), and general legal usage (e.g., United States v. Burchard, 125 U. S. 176 (1888)). Under this interpretation, when the agency calculates the difference between, or nets, Mr. A's $20 underpayment and his $50 overpayment, see supra at 963, it has engaged in "adjustment or recovery," but without complying with the restrictions on "adjustment or recovery" that the Act imposes.In our view, however, with this provision as with those discussed earlier, respondents have established at most that the language may bear the interpretation they desire -- not that it Page 494 U. S. 92 cannot bear the interpretation adopted by the Secretary. "Adjustment" can have the more limited meaning (which the Secretary favors) of "an increase or decrease" of payments (Webster's 27), and "recovery" can have the more limited meaning of "get[ting] back" payments already made (see id., at 1898 ("recover")). Moreover, other provisions of the Act support this limited meaning. It is at least reasonable, if not necessary, to read the phrase "adjustment or recovery" in § 204(b) in pari materia with the identical phrase in § 204(a)(1). The latter section directs the Secretary, if he finds that incorrect payment has been made, to make "proper adjustment or recovery . . . as follows." In the case of overpayment, he shall"decrease any payment under this subchapter to which such overpaid person is entitled, or shall require such overpaid person or his estate to refund the amount in excess of the correct amount. . . ."42 U.S.C. § 404(a)(1)(A) (1982 ed., Supp. IV). As to SSI,"adjustment or recovery shall . . . be made by appropriate adjustments in future payments to such individual or by recovery from . . . or by payment to such individual or his eligible spouse. . . ."42 U.S.C. § 1383(b)(1)(A) (1982 ed., Supp. IV). Giving the terms their more limited meaning does not produce absurd policy consequences. Reducing future benefits, or requiring the beneficiary to pay over cash, will ordinarily produce more hardship than merely setting off past underpayments and overpayments. It is not at all unreasonable to think that waiver hearings were established only for the former.As used in the Act, therefore, adjustment can be read to mean decreasing future payments, and recovery to mean obtaining a refund from the beneficiary. Under this interpretation, when the agency nets Mr. A's underpayment against his overpayment, it is not engaged in "adjustment or recovery," but only in the calculation of whether "more or less than the correct amount of payment has been made." Only after making that calculation does the Secretary take the additional step of rectifying any error by "adjustment" (increasing Page 494 U. S. 93 or decreasing future payments) or "recovery" (obtaining a refund from the beneficiary). And it is only this latter step that is governed by § 204(b) of the Act. We do not say this is an inevitable interpretation of the statute, but it is assuredly a permissible one.BSince the Act reasonably bears the Secretary's interpretation that netting is permitted, only one issue remains: Respondents contend that the manner in which the regulations provide for netting to be conducted is arbitrary and capricious, because of their definition of the netting period. Overpayments are netted with underpayments up to the "month [of] the initial determination" of error. 20 CFR § 416.538 (1989). "Initial determination" is a term of art meaning the Secretary's formal determination that an error was committed. See 20 CFR §§ 404.902, 416.1402 (1989). Needless to say, that formal determination will not be simultaneous with the Secretary's first discovery that something is amiss; delay is inevitable. Respondents contend that this delay is fatal. At best, they say, the period over which netting is conducted will turn on the fortuity of the time period between discovery and formal determination. At worst, the Secretary will manipulate the netting period by delaying formal determination, thus including more underpayments in the netting period and reducing the net overpayment subject to the recoupment-waiver procedures.It seems to us not arbitrary or capricious to establish a grace period within which these determinations can be considered and formally made; they should not be spur-of-the-moment decisions. That delay will extend the netting period, and may result in the inclusion of more underpayments to be netted. But we cannot say that the alternatives -- immediate determinations, or determinations within a fixed period -- would not produce errors that make beneficiaries worse off on the whole. Page 494 U. S. 94Moreover, although the Secretary's regulations do not establish a fixed time period for the formal determination, they do establish a time limit upon the principal adverse consequence of delay: the netting-in of additional underpayments. The regulations provide:"Where an apparent overpayment has been detected but determination of the overpayment has not been made (see § 416.558(a)), a determination and payment of an underpayment which is otherwise due cannot be delayed unless a determination with respect to the apparent overpayment can be made before the close of the month following the month in which the underpaid amount was discovered."20 CFR § 416.538 (1989). See also HHS, Program Operation Manual System, GN 02201.002 (1989) (Social Security Administration policy to resolve overpayments as quickly as possible). Respondents' fear of intentional manipulation of the netting period can be entirely dismissed if this provision is observed in good faith -- as we must presume, in this facial challenge, it will be. See, e.g., FCC v. Schreiber, 381 U. S. 279, 381 U. S. 296 (1965). The intentional manipulation hypothesis is in any event implausible. Deliberately protracting the netting period may indeed draw in future underpayments; but it may just as likely draw in future overpayments, which will be uncollectible until the Secretary's determination is made. The Secretary might conceivably ensure that delay works to the Government's financial advantage by deliberately underpaying while keeping the netting period open, but since that is an obvious violation of the Act, it is again not the stuff of which a facial challenge can be constructed.In addition to the fact that the disadvantages of the Secretary's approach are less than respondents assert, the disadvantages of respondents' approach are more. The Secretary points out that a separate accounting for each month would cause the agency great expense, in the cost of a greatly increased Page 494 U. S. 95 volume of complex recoupment-waiver proceedings, in the cost of overpayments that are simply written off because the cost of the proceedings would exceed the recovery, and in the cost of overpayments whose return will be subject to lengthy delays. These expenses "in the end come out of the pockets of the deserving since resources available for any particular program of social welfare are not unlimited." Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 348 (1976).Respondents seek to minimize the administrative burden by proposing a scheme under which the Secretary would notify the beneficiary of underpayments and overpayments, withhold reimbursement of the underpayments for a brief period during which the beneficiary may seek waiver of recoupment of overpayments, and then net the underpayments and that portion of the overpayments as to which waiver has not been sought. This scheme, however, does not at all address the problem of delay in netting that is the asserted basis for finding the regulations arbitrary and capricious. Substituting "notification" of underpayments and overpayments for "determination" of underpayments and overpayments merely gives the occasion for the delay another name. What this alternative proposal of respondents really puts forward is an alternative means of assuring that overpayments cannot be "netted out" without an opportunity for waiver hearing. As we discussed at length earlier, the statute does not require such assurance. In sum, we find no basis for holding the regulations arbitrary and capricious.* * * *The Court of Appeals did not reach respondents' contention that the regulations violate due process, and we will not address that claim in the first instance. See, e.g., United States v. Sperry Corp., 493 U. S. 52, 493 U. S. 66 (1989). Accordingly, the judgment is reversed and the case remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtSullivan v. Everhart, 494 U.S. 83 (1990)Sullivan v. EverhartNo. 88-1323Argued Nov. 27, 1989Decided Feb. 21, 1990494 U.S. 83SyllabusThe Social Security Act requires the Secretary of Health and Human Services, when he "finds that more or less than the correct amount" of "payment" has been made under the Old-Age, Survivors and Disability Insurance program, or of "benefits" has been paid under the Supplemental Security Income program, to make "proper adjustment or recovery." If less than the correct amount has been paid, the Secretary shall pay the balance due; if more than the correct amount has been paid, the Secretary shall reduce future payment or obtain a refund from the beneficiary. The Act prohibits, however, "adjustment of payments to, or recovery . . . from, any person who is without fault," if such adjustment or recovery would defeat the Act's purposes or be against equity and good conscience. Califano v. Yamasaki, 442 U. S. 682, 442 U. S. 697, interpreted that limitation as entitling the beneficiary to an oral hearing on waiver of recoupment. Pursuant to his authority to "fin[d] [whether] more or less than the correct amount" of payment has been made, and under his general rulemaking authority, the Secretary promulgated "netting" regulations. Under these regulations, the Secretary calculates the difference between the amount due and the amount paid for the period beginning with the first month for which there was a payment error and ending with the month of the "initial determination." If the beneficiary was overpaid in certain months and underpaid in others, the Secretary will net the errors (i.e., calculate the difference between the underpayments and the overpayments) and treat the netted amount as an overpayment or underpayment, as the case may be, for purposes of adjustment or recovery. In this case, after the Secretary made both underpayments and overpayments to each respondent, he netted the errors, paid the net underpayments, and offered recoupment waiver hearings as to the net overpayments. The District Court granted summary judgment to respondents in their ensuing lawsuit, ruling that the regulations violated the Act. The Court of Appeals affirmed.Held: The netting regulations are facially valid. Pp. 494 U. S. 88-95.(a) The regulations are based on a permissible construction of the Act. The Act authorizes the Secretary to determine whether "more or less than the correct amount" has been paid; and the "correct amount" can Page 494 U. S. 84 reasonably be construed to mean the net amount owing as of the date of the determination, rather than the amount owing each month. The Act refers to the correct amount "of payment," not of "any payment" (as it does elsewhere), which suggests computation on a multipayment basis. Nor does the restriction on "adjustment or recovery" of overpayments foreclose the netting regulations. These terms do not necessarily embrace all collection methods. The Secretary has reasonably interpreted "adjustment" to mean a reduction in future payments, and "recovery" to mean refund. Pp. 494 U. S. 89-93.(b) The method of computing the netting period does not make the regulations arbitrary and capricious. The inevitable delay between the discovery that something is amiss and the formal "initial determination" of error (which closes the netting period) is necessary to avoid spur-of-the-moment decisions. The Secretary's regulations limit delay, and the hypothesis that the Secretary will deliberately delay to net-in additional underpayments is implausible. The respondents' alternative regime of separate accounting would increase the administrative burden, and their alternative suggestion of delayed reimbursement of underpayments does not address the alleged delay problem. Pp. 494 U. S. 93-95.853 F.2d 1532, (CA10 1988) reversed and remanded.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, and O'CONNOR, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and KENNEDY, JJ., joined,, post, p. 494 U. S. 96.

1995_95-6

tions-interlock when the fingers are curled.1 When cars come together, the open knuckle on one car engages a closed knuckle on the other car, automatically coupling the cars. The drawbar extends the knuckle out from the end of the car and is designed to pivot in its housing, allowing the knuckled end some lateral play to prevent moving cars from derailing on a curved track. As a consequence of this lateral movement, drawbars may remain off center when cars are uncoupled. This misalignment, if not corrected, may prevent cars from coupling by allowing the knuckles to pass by each other. To ensure proper coupling, railroad employees must realign drawbars manually.Respondent William J. Hiles was a member of a switching crew at petitioner Norfolk & Western Railway Company's Luther Yard in St. Louis, Missouri. His duties included coupling and uncoupling railroad cars and aligning drawbars. On July 18, 1990, Hiles injured his back while attempting to realign an off-center drawbar. Hiles sued in Illinois state court, alleging that Norfolk & Western had violated the SAA, which requires that cars be equipped with "couplers coupling automatically by impact, and capable of being uncoupled, without the necessity of individuals going between the ends of the vehicles." 49 U. S. C. § 20302(a)(1)(A). Norfolk & Western argued that the misaligned drawbar did not result from defective equipment. The trial court granted Hiles' motion for directed verdict on liability.The Illinois Appellate Court affirmed. 268 Ill. App. 3d 561, 644 N. E. 2d 508 (1994). The Illinois Appellate Court recognized a deep split of authority over the proper interpretation of the SAA, but determined that it would not reconsider its "longstanding authority permitting a plaintiff ... to1 See R. Reinhardt, Workin' on the Railroad 274 (1970) (the automatic coupler style "use[s] the principle of the hooked fingers of the human hand").403recover under the Safety Appliance Act for InJuries sustained while attempting to align a misaligned drawbar." Id., at 565,644 N. E. 2d, at 511. The Illinois Supreme Court denied review, and we granted certiorari, 515 U. S. 1191 (1995), to resolve the conflict among the lower courts.2II AFor most of the 19th century, the link-and-pin coupler was the standard coupler used to hook together freight cars. It consisted of a tubelike body that received an oblong link. During coupling, a railworker had to stand between the cars as they came together and guide the link into the coupler pocket. Once the cars were joined, the employee inserted a pin into a hole a few inches from the end of the tube to hold the link in place. See J. White, American Railroad Freight Car 490 (1993) (hereinafter White). The link-and-pin coupler, though widely used, ultimately proved unsatisfactory because (i) it made a loose connection between the cars with too much give and play; (ii) there was no standard design and train crews often spent hours trying to match pins and links while coupling cars; (iii) links and pins were frequently lost, resulting in substantial replacement costs; and (iv) crew members had to go between moving cars during coupling and were frequently injured and sometimes killed. Id., at 490-497.2 Compare, e. g., Kavorkian v. CSX Transportation, Inc., 33 F.3d 570 (CA6 1994), Lisek v. Norfolk & Western R. Co., 30 F.3d 823 (CA7 1994), cert. denied, 513 U. S. 1112 (1995), Goedel v. Norfolk & Western R. Co., 13 F.3d 807 (CA4 1994), Reed v. Philadelphia, Bethlehem & New England R. Co., 939 F.2d 128 (CA3 1991), and Maldonado v. Missouri Pacific R. Co., 798 F.2d 764 (CA5 1986), with Coleman v. Burlington Northern, Inc., 681 F.2d 542 (CA8 1982), and Metcalfe v. Atchison, Topeka & Santa Fe R. Co., 491 F.2d 892 (CAlO 1974).404In 1873, Eli H. Janney patented a knuckle-style coupler that was to become the standard for the freight car couplers used even today.3 See Figure 1. The coupler had a bifurcated drawhead and a revolving hook, which, when brought in contact with another coupler, would automatically interlock with its mate.Figure 1The Janney coupler had several advantages over link-andpin couplers. Not only did it alleviate the problem of loose parts that plagued the link-and-pin coupler,4 it also allowed railworkers to couple and uncouple cars without having to3 Janney was a dry goods clerk and former Confederate Army officer from Alexandria, Virginia, who used his lunch hours to whittle from wood an alternative to the link-and-pin coupler. See F. Wilner, Safety: "A great investment," Railway Age, Mar. 1993, p. 53 (hereinafter Wilner).4 Automatic couplers also made possible the use of power air brakes, which had not been successfully used with link-and-pin couplers because of excessive slack in the coupling. See Hearings on S. 811 et al. before the Senate Committee on Interstate Commerce, 52d Cong., 1st Sess. (1892), reprinted in S. Rep. No. 1049, 52d Cong., 1st Sess., 9 (1892) (hereinafter Sen. Hearings).405go between the cars to guide the link and set the pin.5 One commentator described the automatic coupling operation as follows:"While the cars were apart, the brakeman had to make sure the knuckle of the coupler on the waiting car stood in an open position and that the pin had been lifted into its set position. When the opposite coupler was closed and locked in position, the brakeman was able to stand safely out of the way and signal the engineer to move the cars together. When the knuckle of the coupler of the moving car hit the lever arm of the revolving knuckle on the open coupler, it revolved around the locked one, while concurrently the locking pin dropped automatically from its set position into the coupler, locking the knuckle in place. Although the brakeman had to set up the entire situation by hand, the actual locking operation was automatic and did not require the brakeman to stand between the cars." Clark 191.Though the market was flooded with literally thousands of patented couplers,6 Janney's design was clearly among the best and slowly achieved recognition in the industry. See id., at 193-201. In 1888, the Master Car Builders Association Executive Committee obtained a limited waiver of patent rights-placing much of Janney's design in the public domain-and adopted the design as its standard. Conversion5 Ezra Miller is generally credited with creating the first semiautomatic coupling device for passenger cars-known as the Miller Hook-but it was never widely used on freight cars. See C. Clark, Development of the Semiautomatic Freight-Car Coupler, 1863-1893, 13 Technology and Culture 170, 180-182 (1972) (hereinafter Clark); White 505-506.6 In 1875, there were more than 900 car coupler patents. White 498.By 1887, the number of coupler patents had topped 4,000, ibid., and by 1900, approximately 8,000 coupler patents had been issued. Clark 179.406to the new standard proceeded slowly,7 partly as a result of the sheer number of competing designs on the market. The lack of standardized couplers itself caused safety problems,s and reformers pushed Congress to pass legislation requiring the use of standardized automatic couplers.In 1893, satisfied that an automatic coupler could meet the demands of commercial railroad operations and, at the same time, be manipulated safely, see Clark 206, Congress passed the SAA. Its success in promoting switchyard safety was stunning. Between 1877 and 1887, approximately 38% of all railworker accidents involved coupling. Id., at 179. That percentage fell as the railroads began to replace link-and-pin couplers with automatic couplers. The descent accelerated during the SAA's 7-year grace period and by 1902, only two years after the SAA's effective date, coupling accidents constituted only 4% of all employee accidents. In absolute numbers, coupler-related accidents dropped from nearly 11,000 in 1892 to just over 2,000 in 1902, even though the number of railroad employees steadily increased during that decade.7The Pennsylvania Railroad Company, for instance, adopted a policy of putting automatic couplers on all new cars and on every car that went into the shop for repairs. Sen. Hearings, at 27. In 1890, approximately 10% of all freight cars in use in the United States were equipped with automatic couplers and power brakes. Wilner 54. By 1893, approximately 16% of freight cars were so equipped. Ibid. Witnesses testifying before the Senate Committee in 1892 placed the figure between 12% and 20%. Sen. Hearings, at 12 (12% of cars fitted with Janney-style couplers); id., at 27,42 (20% of cars fitted with mutually interchangeable couplers).8 The new automatic couplers had design modifications that permitted them to couple with link-and-pin style couplers, but not easily. See Clark 192 ("[T]he knuckle of the Janney was notched in order to allow the opposing link to enter the drawhead to the point of coupling ... but in practical service it was most difficult to effect"); S. Rep. 1049, 52d Cong., 1st Sess., 5 (1892) ("These representative men, speaking for thousands of their associates, say that what they desire is uniformity, and that the danger of their calling has increased rather than diminished by the introduction of different types of couplers").407EMPLOYEE COUPLING ACCIDENTS, 1892-1902 9YearRailroadEmployeesEmployeeAccidentsEmployeeCouplerAccidentsPercentageCouplerAccidents1892821,41530,82110,69734.711893873,60234,45611,71033.991894779,60825,2457,49129.671895785,03427,5078,42830.641896826,62031,8308,68627.291897823,47629,3606,49722.131898874,55833,7195,64816.751899928,92437,1335,47714.7519001,017,65342,1934,1989.9519011,071,16943,8172,9666.7719021,189,31553,4932,2564.22"[I]t shall be unlawful for any ... common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled[,] without the necessity of men going between the ends of the cars." Act of Mar. 2, 1893, 27 Stat. 531, 45 U. S. C. § 2 (1988 ed.), recodified, as amended, 49 U. S. C. § 20302(a).10The text of § 2 requires that rail cars be equipped with automatic couplers and that all couplers be sufficiently compatible9 Clark 207.10 In Johnson v. Southern Pacific Co., 196 U. S. 1, 18-19 (1904), we clarified that the statute should be read as though there were a comma after the word "uncoupled," so that the words "without the necessity of men going between the ends of the cars" applies to both coupling and uncoupling. When Congress recodified the SAA in 1994, it placed a comma behind the word "uncoupled." See 49 U. S. C. § 20302(a)(1)(A).408so that they will couple on impact. Johnson v. Southern Pacific Co., 196 U. S. 1, 16-17 (1904). The railroad is liable for an employee's injury or death caused by a violation of the SAA. See St. Louis, 1. M. & S. R. Co. v. Taylor, 210 U. S. 281, 295 (1908) ("If the railroad ... use[s] cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it").l1Early SAA cases involved injuries that occurred when an employee was forced to go between the cars during coupling operations. See, e. g., Johnson, supra, at 2 (hand crushed between cars during coupling); San Antonio & Aransas Pass R. Co. v. Wagner, 241 U. S. 476, 478 (1916) (foot crushed between couplers); Atlantic City R. Co. v. Parker, 242 U. S. 56, 58 (1916) (arm caught in drawhead between cars during coupling). Our later cases extended the reach of SAA liability beyond injuries occurring between cars during coupling to other injuries caused by the failure of cars to automatically couple. Affolder v. New York, C. & St. L. R. Co., 339 U. S. 96, 97 (1950) (railroad employee who ran after a runaway train caused by failure to couple lost a leg when he fell under a car); Carter v. Atlanta & St. Andrews Bay R. Co., 338 U. S. 430, 432-433 (1949) (plaintiff successfully boarded runaway cars that failed to couple, but was injured when the cars collided with another train); O'Donnell v. Elgin, J. & E. R. Co., 338 U. S. 384, 385-386 (1949) (railworker killed when two runaway cars-the result of a broken coupler-collided with cars whose couplers he was adjusting). Liability in each of these cases was predicated on the failure of coupling equipment to perform as required by the SAA, and we held that the SAA creates an absolute duty requiring not only11 We have held that the Federal Employers' Liability Act (FE LA), 45 U. S. C. § 51 et seq., makes railroads liable for a violation of the SAA, see O'Donnell v. Elgin, J. & E. R. Co., 338 U. S. 384, 391 (1949), although early cases, like Johnson, supra, preceded FELA's enactment in 1908. Hiles did not assert a negligence claim under FELA.409that automatic couplers be present, but also that they actually perform. See, e. g., Affolder, supra, at 98; Carter, supra, at 433-434.IIIHiles urges that railroads have an absolute duty to outfit their cars with safe equipment and that the SAA is violated if an employee is required to go between the ends of cars to manually adjust a misaligned drawbar. We cannot agree. Hiles correctly points out that failure to perform as required by the SAA is itself an actionable wrong dependent on neither negligence nor proof of a defect,12 see Affolder, supra, at 98-99; O'Donnell, supra, at 390, 393, but the absolute duty to which we have referred on numerous occasions is not breached as a matter of law when a drawbar becomes misaligned during the ordinary course of railroad operations.In Affolder, the plaintiff was working with a crew coupling cars. The 25th and 26th cars failed to couple and, after a few more cars were added, the first 25 cars began rolling down a slight incline. The plaintiff ran after the runaway cars in an attempt to board and stop them, but instead fell under a car and lost his leg. At trial, the railroad attempted to prove that the coupler at issue was not defective and that the knuckle on the coupler was closed when the coupling attempt was made. Following O'Donnell, we reaffirmed that the failure of equipment to perform as required is sufficient to create SAA liability, Affolder, supra, at 99 (quoting O'Donnell, supra, at 390), but we noted that failure to couple would not create liability if the coupler was not properly set:"Of course [imposition of failure-to-perform liability] assumes that the coupler was placed in a position to operate on impact. Thus, if 'the failure of these two cars to couple on impact was because the coupler on the Penn-12 Hiles neither pleaded nor attempted to prove at trial that Norfolk & Western acted negligently or that the drawbar was defective.410sylvania car had not been properly opened,' the railroad had a good defense." 339 U. S., at 99.13In Carter, we similarly conditioned the duty on the coupler's being "properly set." 338 U. S., at 434; see O'Donnell, supra, at 394, n. 7 (declining to consider "a situation where an adequate coupler failed to hold because it was improperly set").In Affolder, we predicated failure-to-perform liability on placing the coupler "in a position to operate on impact." 339 U. S., at 99. We implicitly recognized that certain preliminary steps, such as ensuring that the knuckle is open, are necessary to proper performance of the coupler and that a failure to couple will not constitute an SAA violation if the railroad can show that the coupler had not been placed in a position to automatically couple. Though Affolder involved a claimed closed knuckle, its language was not so limited and, as a matter of common sense, could not have been. Hiles could not reasonably complain that an otherwise working electrical appliance failed to perform if he had neglected to plug in the power cord. Similarly, a court cannot reasonably find as a matter of law that an otherwise nondefective coupler has failed to perform when the drawbar has not been placed "in a position to operate on impact." We think Affolder's restriction on failure-to-perform liability logically extends to every step necessary to prepare a nondefective coupler for coupling, see supra, at 404-405 (describing the ordinary process of preparing for an automatic coupling), including ensuring proper alignment of the drawbar.1413 Justice Jackson, dissenting on other grounds, agreed: "Before a failure to couple establishes a defective coupler, it must be found that it was properly set so it could couple. If it was not adjusted as such automatic couplers must be, of course the failure is not that of the device." Affolder, 339 U. S., at 101.14 Our holding that Affolder's restriction on liability extends to misaligned drawbars suggests that, at least in this case, the absence of a failed coupling attempt is of no consequence. On this record, Hiles would not411Hiles contends that the distinction between a closed knuckle and a misaligned drawbar makes a difference because opening a knuckle can be accomplished without going between cars but realigning a drawbar cannot. This is particularly true, Hiles argues, given that Congress' "central policy" in enacting the BAA was to protect the worker by obviating the necessity of going between cars. Brief for Respondent 12-13. We decline to adopt an expansive interpretation of § 2 that would prohibit railroad employees from going between cars to realign slued drawbars. The language of § 2, which requires couplers that both will couple and can be uncoupled without the necessity of persons going between the cars, does not easily lend itself to Hiles' interpretation. Instead, as even Hiles apparently concedes, see Brief for Respondent 19, the text of § 2 only requires railroads to use a particular kind of coupler with certain attributes, and there is no question that Norfolk & Western's cars are equipped with couplers with the necessary functional characteristics.15have been entitled to judgment as a matter of law even if he had been injured during a failed coupling attempt.15 Hiles reads into the legislative history a singular congressional intent to keep railroad workers from going between cars. Our construction of § 2 rests on the text of the statute and our prior interpretations of that language. In any event, we think Hiles' reading of the legislative history is erroneous. For instance, Hiles selectively quotes statements made by W. E. Rodgers during Senate Committee hearings to suggest that Congress wanted to force the railroads to adopt a coupler that would keep railworkers out from between cars altogether. Brief for Respondent 14. A full reading of these statements makes clear, however, that Mr. Rodgers believed that adoption of the Janney design, as it then existed, would fully satisfy the requirements of § 2. Sen. Hearings, at 14. Hiles' reliance on statements made by H. S. Haines, vice president of the American Railway Association, is similarly misplaced. See Brief for Respondent 15. Mr. Haines evidently thought that 500 existing couplers would satisfy the requirements of the proposed bill. Sen. Hearings, at 41; see Hearings on Automatic Couplers and Power Brakes before the House Committee on Interstate and Foreign Commerce, 52d Cong., 1st Sess., 6 (1892). If Con-412Adopting Hiles' reading of § 2 would require us to hold that a misaligned drawbar, by itself, is a violation of the SAA, and we are quite unwilling to do that. It is true that our failure-to-perform cases made clear that the railroad will be liable for injuries caused by malfunctioning equipment, even when cars are equipped with automatic couplers. But we cannot agree that a misaligned drawbar is, as a matter of law, a malfunctioning drawbar. Historically, misaligned drawbars were an inevitable byproduct of the ability to traverse curved track and, like the closed knuckle in Affolder, are part of the normal course of railroad car operations.We are understandably hesitant to adopt a reading of § 2 that would suggest that almost every railroad car in service for nearly a century has been in violation of the SAA. See United Transportation Union v. Lewis, 711 F.2d 233, 251, n. 39 (CADC 1983). Our hesitance is augmented by the enforcement scheme Congress enacted with the SAA. From its beginning, § 6 of the SAA provided that railroads in viola-gress had any singular purpose in enacting § 2, it was to require the railroads to equip cars with uniformly compatible automatic couplers that employees could operate without having to go between the cars. See H. R. Rep. No. 1678, 52d Cong., 1st Sess., 3 (1892) ("It is the judgment of this committee that all cars and locomotives should be equipped with automatic couplers, obviating the necessity of the men going between the cars"); S. Rep. No. 1049, supra n. 8, at 6 (1892) ("What the railroad employes need to secure greater safety in the performance of their duties is uniformity. They want all couplers alike and perfectly interchangeable"). We think Congress fairly intended to prohibit the practice of placing railworkers between moving cars to guide a link into its matching coupler pocket or, worse, into an unfamiliar coupler cavity. Cf. Hearings on Automatic Couplers and Power Brakes before the House Committee on Interstate and Foreign Commerce, 52d Cong., 1st Sess., 11 (1892) ("He goes in to make a coupling. He does not know the conditions that exist there. He can not tell whether it is a Janney or a Hinson, a Dowling, a Drexel, or some other kind of a drawbar"). Contrary to Hiles' assertion, the legislative history contains no suggestion that Congress intended to prevent an employee from going between cars to ensure that the knuckle is open, that the locking pin is set, see supra, at 405, or that the drawbar is aligned.413tion of § 2 were liable for "a penalty of one hundred dollars for each and every such violation." Act of Mar. 2, 1893, 27 Stat. 531, 45 U. S. C. § 6 (1988 ed.), recodified, as amended, 49 U. S. C. § 21302(a). The amount of the penalty for a § 2 violation has varied over the years,16 but the threat of a penalty has not. Yet Hiles points to not a single instance in which a railroad has been fined for misaligned drawbars. It is not the case that the Government has simply neglected to enforce the penalty provisions of the SAA for nearly 100 yearsP We think there is a better explanation than that the Government has failed to enforce this particular aspect of the SAA since its inception: A misaligned drawbar simply is not a violation of § 2.18Finally, relying on the railroads' experimental attempts to develop automatic realigning devices, Hiles argues that Congress' clear intent to protect railroad employees in coupling operations required the railroads to "develop a mechanism for automatic realignment of a drawbar." Brief for Respondent 27. Or, in the words of his amicus, "[t]he Legislative wisdom of Section 2 is that it is as flexible as technology." Brief for United Transportation Union as Amicus16 The statute currently requires the Secretary of Transportation to impose a penalty of "at least $500 but not more than $10,000." 49 U. S. C. § 21302(a)(2).17 See, e. g., Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559 (1911) (§ 1 power brake violations); Alabama Great Southern R. Co. v. United States, 233 F.2d 520 (CA5 1956) (§ 2 coupler violation); United States v. St. Louis-San Francisco R. Co., 271 F. Supp. 212 (WD Mo. 1967) (§ 9 brake violation); United States v. Gulf, M. & O. R. Co., 76 F. Supp. 289 (ED La. 1948) (§ 2 coupler violation).18 Hiles' view of § 2 also conflicts with regulations promulgated by the Federal Railroad Administration (FRA) that provide for the safety of employees who go between cars to "prepare rail cars for coupling," 49 CFR § 218.22(c)(5) (1994), or to "adjust a coupling device," § 218.39(a). In its proposed rulemaking for § 218.39, the FRA explained that the proposed rule would protect employees who place themselves between cars to couple air hoses or adjust coupling devices, including "adjusting drawbars." 48 Fed. Reg. 45272, 45273 (1983).414Curiae 17. We reject this argument, for we find no such command in the text of § 2. Congress plainly instructed the railroads to install compatible and automatic couplers on all cars, at a time when this basic technology had been in existence for two decades and had received widespread testing and recognition as a feasible technology superior to what was then in primary use. In contrast, Hiles concedes that automatic realignment technology did not even exist in 1893 when Congress passed the BAA, see Brief for Respondent 26-27, and, according to Norfolk & Western, automatic realignment has never been shown to be effective. But this matters not, because Congress legislated working automatic couplers for employee safety, not employee safety by whatever method a court might deem appropriate.The judgment of the Illinois Appellate Court isReversed

OCTOBER TERM, 1995SyllabusNORFOLK & WESTERN RAILWAY CO. v. HILESCERTIORARI TO THE APPELLATE COURT OF ILLINOIS, 5TH JUDICIAL DISTRICTNo. 95-6. Argued January 8, 1996-Decided February 27,1996Railroad cars are connected by couplers consisting of knuckles-clamps that lock with their mates-joined to the ends of drawbars, which are fastened to housing mechanisms on the cars. Cars automatically couple when they come together and one car's open knuckle engages the other car's closed knuckle. The drawbar pivots in its housing, allowing the knuckled end some lateral play to prevent moving cars from derailing on a curved track. As a consequence of this lateral movement, drawbars may remain off center when cars are uncoupled and must be realigned manually to ensure proper coupling. Respondent Hiles injured his back while attempting to realign an off-center drawbar on a car at one of petitioner Norfolk & Western Railway Company's yards. He sued in Illinois state court, alleging that Norfolk & Western had violated § 2 of the Safety Appliance Act (SAA or Act), which requires that cars be equipped with "couplers coupling automatically by impact, and capable of being uncoupled, without the necessity of individuals going between the ends of the vehicles." The trial court granted Hiles a directed verdict on liability, and the State Appellate Court affirmed.Held: Section 2 does not make a railroad liable as a matter of law for injuries incurred by a railroad employee while trying to straighten a misaligned drawbar. Pp.403-414.(a) Congress passed the SAA in 1893 to promote switchyard safety by requiring the use of standardized automatic couplers. SAA liability may be predicated on the failure of coupling equipment to perform as required by the Act, and the SAA creates an absolute duty requiring not only that automatic couplers be present, but also that they actually perform. See, e. g., Affolder v. New York, C. & St. L. R. Co., 339 U. S. 96, 98. Pp. 403-409.(b) However, failure to couple will not cause a violation if the railroad can show that a coupler has not been properly set to couple on impact. Affolder, supra, at 99. Affolder's restriction on failure-to-perform liability logically extends to every step necessary to prepare a nondefective coupler for coupling, including ensuring a drawbar's proper alignment. Thus, the absolute duty is not breached as a matter of law when a drawbar becomes misaligned during the ordinary course of railroad operations. Hiles' interpretation would require a finding that, as a mat-401ter of law, a misaligned drawbar is a malfunctioning drawbar, when, in fact, misalignment occurs as a part of the normal course of railroad car operations. His reading of § 2 would mean that every railroad car for nearly a century has been in violation of the SAA. Also contrary to Hiles' argument, § 2 does not command railroads to develop a mechanism for automatic drawbar realignment. Congress legislated working automatic couplers for employee safety, not employee safety by whatever means a court might deem appropriate. Pp. 409-414.268 Ill. App. 3d 561, 644 N. E. 2d 508, reversed.THOMAS, J., delivered the opinion for a unanimous Court.Carter G. Phillips argued the cause for petitioner. With him on the briefs were Thomas W Alvey, Jr., Kurt E. Reitz, and Mary Sue Juen.Lawrence M. Mann argued the cause for respondent.With him on the brief was Jeanne Sathre. *JUSTICE THOMAS delivered the opinion of the Court. Before us in this case is the question whether § 2 of the Safety Appliance Act (SAA), 49 U. S. C. § 20302(a)(1)(A), makes a railroad liable as a matter of law for injuries incurred by a railroad employee while trying to straighten a misaligned drawbar. We hold that it does not and, accordingly, reverse the judgment of the Illinois Appellate Court.IRailroad cars in a train are connected by couplers located at both ends of each car. A coupler consists of a knuckle joined to the end of a drawbar, which itself is fastened to a housing mechanism on the car. A knuckle is a clamp that interlocks with its mate, just as two cupped hands-placed palms together with the fingertips pointing in opposite direc-* Robert W Blanchette filed a brief for the Association of American Railroads as amicus curiae urging reversal.Robert B. Thompson, Patrick J. Harrington, and Clinton J. Miller III filed a brief for the United Transportation Union as amicus curiae urging affirmance.402Full Text of Opinion

1971_70-117

MR. JUSTICE POWELL delivered the opinion of the Court.This case presents the question whether the United States Government may compel testimony from an unwilling witness, who invokes the Fifth Amendment privilege against compulsory self-incrimination, by conferring on the witness immunity from use of the compelled testimony in subsequent criminal proceedings, as well as immunity from use of evidence derived from the testimony.Petitioners were subpoenaed to appear before a United States grand jury in the Central District of California on February 4, 1971. The Government believed that petitioners were likely to assert their Fifth Amendment privilege. Prior to the scheduled appearances, the Government applied to the District Court for an order directing petitioners to answer questions and produce evidence before the grand jury under a grant of immunity conferred pursuant to 18 U.S.C. §§ 6002-6003. Petitioners opposed issuance of the order, contending primarily that the scope of the immunity provided by the statute was not coextensive with the scope of the privilege against self-incrimination, and therefore was not sufficient to supplant the privilege and compel their testimony. The District Court rejected this contention, and ordered petitioners to appear before the grand jury and answer its questions under the grant of immunity.Petitioners appeared but refused to answer questions, asserting their privilege against compulsory self-incrimination. They were brought before the District Court, and each persisted in his refusal to answer the grand jury's questions, notwithstanding the grant of immunity. The court found both in contempt, and committed them to the custody of the Attorney General until either they answered the grand jury's questions or the term of the grand jury expired. [Footnote 1] The Court of Page 406 U. S. 443 Appeals for the Ninth Circuit affirmed. Stewart v. United States, 440 F.2d 954 (CA9 1971). This Court granted certiorari to resolve the important question whether testimony may be compelled by granting immunity from the use of compelled testimony and evidence derived therefrom ("use and derivative use" immunity), or whether it is necessary to grant immunity from prosecution for offenses to which compelled testimony relates ( "transactional" immunity). 402 U.S. 971 (1971).IThe power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence. [Footnote 2] The power with respect to courts was established by statute in England as early as 1562, [Footnote 3] and Lord Bacon observed in 1612 that all subjects owed the King their "knowledge and discovery." [Footnote 4] While it is not clear when grand juries first resorted to compulsory process to secure the attendance and testimony of witnesses, the general common law principle that "the public has a right to every man's evidence" was considered an "indubitable certainty" that "cannot be denied" by 1742. [Footnote 5] The power to compel testimony, and the corresponding duty to testify, are recognized in the Sixth Amendment Page 406 U. S. 444 requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor. The first Congress recognized the testimonial duty in the Judiciary Act of 1789, which provided for compulsory attendance of witnesses in the federal courts. [Footnote 6] MR. JUSTICE WHITE noted the importance of this essential power of government in his concurring opinion in Murphy v. Waterfront Comm'n, 378 U. S. 52, 378 U. S. 93-94 (1964):"Among the necessary and most important of the powers of the States as well as the Federal Government to assure the effective functioning of government in an ordered society is the broad power to compel residents to testify in court or before grand juries or agencies. See Blair v. United States, 250 U. S. 273. Such testimony constitutes one of the Government's primary sources of information."But the power to compel testimony is not absolute. There are a number of exemptions from the testimonial duty, [Footnote 7] the most important of which is the Fifth Amendment privilege against compulsory self-incrimination. The privilege reflects a complex of our fundamental values and aspirations, [Footnote 8] and marks an important advance in the development of our liberty. [Footnote 9] It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, [Footnote 10] and it Page 406 U. S. 445 protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. [Footnote 11] This Court has been zealous to safeguard the values that underlie the privilege. [Footnote 12]Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, [Footnote 13] are not incompatible Page 406 U. S. 446 with these values. Rather, they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime. Indeed, their origins were in the context of such offenses, [Footnote 14] Page 406 U. S. 447 and their primary use has been to investigate such offenses. [Footnote 15] Congress included immunity statutes in many of the regulatory measures adopted in the first half of this century. [Footnote 16] Indeed, prior to the enactment of the statute under consideration in this case, there were in force over 50 federal immunity statutes. [Footnote 17] In addition, every State in the Union, as well as the District of Columbia and Puerto Rico, has one or more such statutes. [Footnote 18] The commentators, [Footnote 19] and this Court on several occasions, [Footnote 20] have characterized immunity statutes as essential to the effective enforcement of various criminal statute. As Mr. Justice Frankfurter observed, speaking for the Court in Ullmann v. United States, 350 U. S. 422 (1856), such statutes have "become part of our constitutional fabric." [Footnote 21] Id. at 350 U. S. 438. Page 406 U. S. 448IIPetitioners contend, first, that the Fifth Amendment's privilege against compulsory self-incrimination, which is that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself," deprives Congress of power to enact laws that compel self-incrimination, even if complete immunity from prosecution is granted prior to the compulsion of the incriminatory testimony. In other words, petitioners assert that no immunity statute, however drawn, can afford a lawful basis for compelling incriminatory testimony. They ask us to reconsider and overrule Brown v. Walker, 161 U. S. 591 (1896), and Ullmann v. United States, supra, decisions that uphold the constitutionality of immunity statutes. [Footnote 22] We find no merit to this contention, and reaffirm the decisions in Brown and Ullmann.IIIPetitioners' second contention is that the scope of immunity provided by the federal witness immunity statute, 18 U.S.C. § 6002, is not coextensive with the scope of the Fifth Amendment privilege against compulsory self-incrimination, and therefore is not sufficient to supplant the privilege and compel testimony over a claim of the privilege. The statute provides that, when a witness is compelled by district court order to testify over a claim of the privilege:"the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information Page 406 U. S. 449 directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. [Footnote 23]"23 18 U.S.C. § 6002.The constitutional inquiry, rooted in logic and history as well as in the decisions of this Court, is whether the immunity granted under this statute is coextensive with the scope of the privilege. [Footnote 24] If so, petitioners' refusals to answer based on the privilege were unjustified, and the judgments of contempt were proper, for the grant of immunity has removed the dangers against which the privilege protects. Brown v. Walker, supra. If, on the other hand, the immunity granted is not as comprehensive as the protection afforded by the privilege, petitioners were justified in refusing to answer, and the judgments of contempt must be vacated. McCarthy v. Arndstein, 266 U. S. 34, 266 U. S. 42 (1924).Petitioners draw a distinction between statutes that provide transactional immunity and those that provide, as does the statute before us, immunity from use and derivative use. [Footnote 25] They contend that a statute must, at a minimum, grant full transactional immunity in order to be coextensive with the scope of the privilege. In support of this contention, they rely on Counselman v. Hitchcock, 142 U. S. 547 (1892), the first case in which this Court considered a constitutional challenge to an immunity statute. The statute, a reenactment of the Immunity Act of 1868, [Footnote 26] provided that no"evidence obtained from a party or witness by means of a judicial Page 406 U. S. 450 proceeding . . . shall be given in evidence, or in any manner used against him . . . in any court of the United States. . . . [Footnote 27]"Notwithstanding a grant of immunity and order to testify under the revised 1868 Act, the witness, asserting his privilege against compulsory self-incrimination, refused to testify before a federal grand jury. He was consequently adjudged in contempt of court. [Footnote 28] On appeal, this Court construed the statute as affording a witness protection only against the use of the specific testimony compelled from him under the grant of immunity. This construction meant that the statute "could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him." [Footnote 29] Since the revised 1868 Act, as construed by the Court, would permit the use against the immunized witness of evidence derived from his compelled testimony, it did not protect the witness to the same extent that a claim of the privilege would protect him. Accordingly, under the principle that a grant of immunity cannot supplant the privilege, and is not sufficient to compel testimony over a claim of the privilege, unless the scope of the grant of immunity is coextensive with the scope of the privilege, [Footnote 30] the witness' refusal to testify was held proper. In the course of its opinion, the Court made the following statement, on which petitioners heavily rely:"We are clearly of opinion that no statute which leaves the party or witness subject to prosecution Page 406 U. S. 451 after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. [The immunity statute under consideration] does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates."142 U.S. at 142 U. S. 585-586.Sixteen days after the Counselman decision, a new immunity bill was introduced by Senator Cullom, [Footnote 31] who urged that enforcement of the Interstate Commerce Act would be impossible in the absence of an effective immunity statute. [Footnote 32] The bill, which became the Compulsory Testimony Act of 1893, [Footnote 33] was drafted specifically to meet the broad language in Counselman set forth above. [Footnote 34] The new Act removed the privilege against self-incrimination in hearings before the Interstate Commerce Commission, and provided that:"no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise. . . ."Act of Feb. 11, 1893, 27 Stat. 444. Page 406 U. S. 452 This transactional immunity statute became the basic form for the numerous federal immunity statutes [Footnote 35] until 1970, when, after reexamining applicable constitutional principles and the adequacy of existing law, Congress enacted the statute here under consideration. [Footnote 36] The new statute, which does not "afford [the] absolute immunity against future prosecution" referred to in Counselman, was drafted to meet what Congress judged to be the conceptual basis of Counselman, as elaborated in subsequent decisions of the Court, namely, that immunity from the Page 406 U. S. 453 use of compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege. [Footnote 37]The statute's explicit proscription of the use in any criminal case of"testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information)"is consonant with Fifth Amendment standards. We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege. While a grant of immunity must afford protection commensurate with that afforded by the privilege, it need not be broader. Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being "forced to give testimony leading to the infliction of penalties affixed to . . . criminal acts.'" [Footnote 38] Immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom, affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.Our holding is consistent with the conceptual basis of Counselman. The Counselman statute, as construed by the Court, was plainly deficient in its failure to Page 406 U. S. 454 prohibit the use against the immunized witness of evidence derived from his compelled testimony. The Court repeatedly emphasized this deficiency, noting that the statute:"could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding . . ."142 U.S. at 142 U. S. 564;that it:"could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted,"ibid.; and that it:"affords no protection against that use of compelled testimony which consists in gaining therefrom a knowledge of the details of a crime, and of sources of information which may supply other means of convicting the witness or party."142 U.S. at 142 U. S. 586. The basis of the Court's decision was recognized in Ullmann v. United States, 350 U. S. 422 (1956), in which the Court reiterated that the Counselman statute was insufficient:"because the immunity granted was incomplete, in that it merely forbade the use of the testimony given and failed to protect a witness from future prosecution based on knowledge and sources of information obtained from the compelled testimony."Id. at 350 U. S. 437. (Emphasis supplied.) See also Arndstein v. McCarthy, 254 U. S. 71, 254 U. S. 73 (1920). The broad language in Counselman relied upon by petitioners Page 406 U. S. 455 was unnecessary to the Court's decision, and cannot be considered binding authority. [Footnote 39]In Murphy v. Waterfront Comm'n, 378 U. S. 52 (1964), the Court carefully considered immunity from use of compelled testimony and evidence derived therefrom. The Murphy petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor. After refusing to answer certain questions on the ground that the answers might tend to incriminate them, petitioners were granted immunity Page 406 U. S. 456 from prosecution under the laws of New Jersey and New York. [Footnote 40] They continued to refuse to testify, however, on the ground that their answers might tend to incriminate them under federal law, to which the immunity did not purport to extend. They were adjudged in civil contempt, and that judgment was affirmed by the New Jersey Supreme Court. [Footnote 41]The issue before the Court in Murphy was whether New Jersey and New York could compel the witnesses, whom these States had immunized from prosecution under their laws, to give testimony that might then be used to convict them of a federal crime. Since New Jersey and New York had not purported to confer immunity from federal prosecution, the Court was faced with the question what limitations the Fifth Amendment privilege imposed on the prosecutorial powers of the Federal Government, a nonimmunizing sovereign. After undertaking an examination of the policies and purposes of the privilege, the Court overturned the rule that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction. [Footnote 42] The Court held that the privilege protects state witnesses against incrimination under federal as well as state law, and federal witnesses against incrimination Page 406 U. S. 457 under state, as well as federal, law. Applying this principle to the state immunity legislation before it, the Court held the constitutional rule to be that:"[A] state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that, in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits. [Footnote 43]"378 U.S. at 378 U. S. 79. The Court emphasized that this rule left the state witness and the Federal Government, against which the witness had immunity only from the use of the compelled testimony and evidence derived therefrom, "in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity." Ibid.It is true that, in Murphy, the Court was not presented with the precise question presented by this case, whether a jurisdiction seeking to compel testimony may do so by granting only use and derivative use immunity, for New Jersey and New York had granted petitioners transactional immunity. The Court heretofore has not Page 406 U. S. 458 squarely confronted this question, [Footnote 44] because post-Counselman immunity statutes reaching the Court either have followed the pattern of the 1893 Act in providing transactional immunity [Footnote 45] or have been found deficient for failure to prohibit the use of all evidence derived from compelled testimony. [Footnote 46] But both the reasoning of the Court in Murphy and the result reached compel the conclusion that use and derivative use immunity is constitutionally sufficient to compel testimony over a claim of the privilege. Since the privilege is fully applicable and its scope is the same whether invoked in a state or in a federal jurisdiction, [Footnote 47] the Murphy conclusion that a prohibition on use and derivative use secures a witness' Fifth Amendment privilege against infringement by the Federal Government demonstrates that immunity from use and derivative use is coextensive with the scope of the privilege. As the Murphy Court noted, immunity from use and derivative use "leaves the witness and the Federal Government in substantially the same position Page 406 U. S. 459 as if the witness had claimed his privilege" [Footnote 48] in the absence of a grant of immunity. The Murphy Court was concerned solely with the danger of incrimination under federal law, and held that immunity from use and derivative use was sufficient to displace the danger. This protection coextensive with the privilege is the degree of protection that the Constitution requires, and is all that the Constitution requires even against the jurisdiction compelling testimony by granting immunity. [Footnote 49]IVAlthough an analysis of prior decisions and the purpose of the Fifth Amendment privilege indicates that use and derivative use immunity is coextensive with the privilege, we must consider additional arguments advanced by petitioners against the sufficiency of such immunity. We start from the premise, repeatedly affirmed by this Court, that an appropriately broad immunity grant is compatible with the Constitution.Petitioners argue that use and derivative use immunity will not adequately protect a witness from various possible incriminating uses of the compelled testimony: for example, the prosecutor or other law enforcement officials may obtain leads, names of witnesses, or other information not otherwise available that might result in a prosecution. It will be difficult, and perhaps impossible, the argument goes, to identify, by testimony or cross-examination, the subtle ways in which the compelled testimony may disadvantage a witness, especially in the jurisdiction granting the immunity.This argument presupposes that the statute's prohibition Page 406 U. S. 460 will prove impossible to enforce. The statute provides a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom:"[N]o testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case. . . ."18 U.S.C. § 6002. This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an "investigatory lead," [Footnote 50] and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures.A person accorded this immunity under 18 U.S.C. § 6002, and subsequently prosecuted, is not dependent for the preservation of his rights upon the integrity and good faith of the prosecuting authorities. As stated in Murphy:"Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence."378 U.S. at 378 U. S. 79 n. 18. This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. Page 406 U. S. 461This is very substantial protection, [Footnote 51] commensurate with that resulting from invoking the privilege itself. The privilege assures that a citizen is not compelled to incriminate himself by his own testimony. It usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer. This statute, which operates after a witness has given incriminatory testimony, affords the same protection by assuring that the compelled testimony can in no way lead to the infliction of criminal penalties. The statute, like the Fifth Amendment, grants neither pardon nor amnesty. Both the statute and the Fifth Amendment allow the government to prosecute using evidence from legitimate independent sources.The statutory proscription is analogous to the Fifth Amendment requirement in cases of coerced confessions. [Footnote 52] A coerced confession, as revealing of leads as testimony given in exchange for immunity, [Footnote 53] is inadmissible in a criminal trial, but it does not bar prosecution. [Footnote 54] Moreover, a defendant against whom incriminating evidence has been obtained through a grant of immunity may be in a stronger position at trial than a defendant who asserts a Fifth Amendment coerced confession claim. One raising a claim under this statute need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from Page 406 U. S. 462 legitimate independent sources. [Footnote 55] On the other hand, a defendant raising a coerced confession claim under the Fifth Amendment must first prevail in a voluntariness hearing before his confession and evidence derived from it become inadmissible. [Footnote 56]There can be no justification in reason or policy for holding that the Constitution requires an amnesty grant where, acting pursuant to statute and accompanying safeguards, testimony is compelled in exchange for immunity from use and derivative use when no such amnesty is required where the government, acting without colorable right, coerces a defendant into incriminating himself.We conclude that the immunity provided by 18 U.S.C. 6002 leaves the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege. The immunity therefore is coextensive with the privilege and suffices to supplant it. The judgment of the Court of Appeals for the Ninth Circuit accordingly isAffirmed

U.S. Supreme CourtKastigar v. United States, 406 U.S. 441 (1972)Kastigar v. United StatesNo. 70-117Argued January 11, 1972Decided May 22, 1972406 U.S. 441SyllabusThe United States can compel testimony from an unwilling witness who invokes the Fifth Amendment privilege against compulsory self-incrimination by conferring immunity, as provided by 18 U.S.C. § 6002, from use of the compelled testimony and evidence derived therefrom in subsequent criminal proceedings, as such immunity from use and derivative use is coextensive with the scope of the privilege and is sufficient to compel testimony over a claim of the privilege. Transactional immunity would afford broader protection than the Fifth Amendment privilege, and is not constitutionally required. In a subsequent criminal prosecution, the prosecution has the burden of proving affirmatively that evidence proposed to be used is derived from a legitimate source wholly independent of the compelled testimony. Pp. 406 U. S. 443-462.440 F.2d 954, affirmed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and BLACKMUN, JJ., joined. DOUGLAS, J., post, p. 406 U. S. 462, and MARSHALL, J., post, p. 406 U. S. 467, filed dissenting opinions. BRENNAN and REHNQUIST, JJ., took no part in the consideration or decision of the case. Page 406 U. S. 442

1997_96-1693

THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 101.Don Stenberg, Attorney General of Nebraska, argued the cause for petitioner. With him on the briefs was J. Kirk Brown, Assistant Attorney General.Roy W McLeese III argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.Paula Hutchinson, by appointment of the Court, 522 U. S. 1074, argued the cause for respondent. With her on the brief were Kent Gipson and Timothy K. Ford. *JUSTICE THOMAS delivered the opinion of the Court.In Beck v. Alabama, 447 U. S. 625 (1980), we held unconstitutional a state statute that prohibited lesser included offense instructions in capital cases, when lesser included offenses to the charged crime existed under state law and such instructions were generally given in noncapital cases. In this case, we consider whether Beck requires state trial courts to instruct juries on offenses that are not lesser included offenses of the charged crime under state law. We* A brief of amici curiae urging reversal was filed for the State of Arizona et al. by Grant Woods, Attorney General of Arizona, Paul J. McMurdie, and Jon G. Anderson, Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Daniel E. Lungren of California, M. Jane Brady of Delaware, Alan G. Lance of Idaho, James E. Ryan of Illinois, Mike Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Mark W Barnett of South Dakota, John Knox Walkup of Tennessee, and Richard Cullen of Virginia.David Porter and Helen C. Trainor filed a brief for the National Association of Criminal Defense Lawyers as amici curiae urging affirmance.91conclude that such instructions are not constitutionally required, and we therefore reverse the contrary judgment of the Court of Appeals.IIn the early morning hours of March 29, 1980, police received an emergency call from the Religious Society of Friends meetinghouse in Lincoln, Nebraska. Responding to the call, they found Janet Mesner, the live-in caretaker, lying on the floor in the rear of the house with seven stab wounds in her chest. When an officer asked who had stabbed her, Mesner gave respondent's name. The officers then went to an upstairs bedroom and found the partially clad dead body of Victoria Lamm, a friend of Mesner who had been visiting the meetinghouse. She had been stabbed twice, the first blow penetrating the main pulmonary artery of her heart and the second her liver. A billfold containing respondent's identification was lying near Lamm's body. The police found underwear, later identified as respondent's, in the middle of the blood-soaked sheets of the bed; subsequent examination of the underwear revealed semen of respondent's blood type. N ear the bed, the police found a serrated kitchen knife with Mesner's blood on it. Before dying, Mesner told an officer that respondent had raped her. Shortly thereafter, the police arrested respondent, who told them that although he could not remember much about the murders due to severe intoxication, he did recall stabbing and raping Mesner.The State proceeded against respondent for both murders on a felony-murder theory. Under Nebraska law, felony murder is a form of first-degree murder and is defined as murder committed "in the perpetration of or attempt to perpetrate" certain enumerated felonies, including sexual assault or attempt to commit sexual assault in the first degree. Neb. Rev. Stat. § 28-303 (1995). When proceeding on such a theory, Nebraska prosecutors do not need to prove a culpable mental state with respect to the murder because intent to kill is conclusively presumed if the State proves intent to92commit the underlying felony. State v. Reeves, 216 Neb. 206, 217, 344 N. W. 2d 433, 442 (1984). Although a conviction for felony murder renders a defendant eligible for the death penalty, see § 28-303, the jury is not charged with sentencing the defendant; under Nebraska law, capital sentencing is a judicial function, § 29-2520.At trial, respondent requested that the jury be instructed on both murder in the second degree and manslaughter, which, he argued, were lesser included offenses of felony murder. App.6-9.1 The trial court refused on the ground that the Nebraska Supreme Court consistently has held that second-degree murder and manslaughter are not lesser included offenses of that crime. Id., at 10. Respondent's jury thus was presented with only the two felony-murder counts.2 Although respondent raised an insanity defense, the jury rejected it and convicted him on both counts. A three-judge sentencing panel then convened to consider aggravating and mitigating circumstances. It sentenced respondent to death on both convictions.After the Nebraska Supreme Court affirmed his convictions and sentences, State v. Reeves, 216 Neb. 206, 344 N. W. 2d 433, cert. denied, 469 U. S. 1028 (1984), respondent unsuccessfully pursued state collateral relief, State v. Reeves, 234 Neb. 711,453 N. W. 2d 359 (1990). This Court then vacated the Nebraska Supreme Court's judgment for further consideration in light of Clemons v. Mississippi, 494 U. S. 738 (1990), because respondent's death sentence had been based in part on an invalid aggravating factor. See Reeves v. Nebraska, 498 U. S. 964 (1990). On remand, the Nebraska Su-1 Under Nebraska law, second-degree murder is defined as "caus[ing] the death of a person intentionally, but without premeditation," § 28-304, and manslaughter as "kill[ing] another without malice, either upon a sudden quarrel, or caus[ing] the death of another unintentionally while in the commission of an unlawful act," § 28-305.2 Respondent did not request an instruction on sexual assault in the first degree.93preme Court followed Clemons, independently reweighed the applicable aggravating and mitigating factors, and reaffirmed respondent's sentences. State v. Reeves, 239 Neb. 419,476 N. W. 2d 829 (1991), cert. denied, 506 U. S. 837 (1992).Respondent then filed a petition for a writ of habeas corpus in Federal District Court. He raised 44 claims, including a claim that the trial court's failure to give his requested instructions was unconstitutional under Beck. The District Court rejected the Beck claim but granted relief on an unrelated ground. 871 F. Supp. 1182, 1202, 1205-1206 (Neb. 1994). After the Court of Appeals for the Eighth Circuit reversed the latter determination and remanded the case, 76 F.3d 1424, 1427-1431 (1996), the District Court again granted respondent's petition, finding a due process violation arising out of the reaffirmance of his sentences by the Nebraska Supreme Court. See 928 F. Supp. 941, 959-965 (Neb. 1996).On the State's appeal, the Court of Appeals held that although respondent was not entitled to relief on his due process claim, the Nebraska trial court had committed constitutional error in failing to give the requested second-degree murder and manslaughter instructions. 102 F.3d 977 (1997). The Court of Appeals reasoned that the constitutional error was the same as that in Beck, despite the fact that there are no lesser included homicide offenses to felony murder under Nebraska law: In both cases, state law "prohibited instructions on noncapital murder charges in cases where conviction made the defendant death-eligible." 102 F. 3d, at 983 (emphasis in original). Because respondent "could have been convicted and sentenced for either second degree murder or manslaughter," the Court of Appeals concluded that he was constitutionally entitled to his proposed instructions. See id., at 984. It further stated that denial of the instructions could not be justified by the fact that felony murder in Nebraska does not require a culpable mental state with respect to the killing, because in Enmund v. Flor-94ida, 458 U. S. 782 (1982), and Tison v. Arizona, 481 U. S. 137 (1987), this Court held that the death penalty could not be imposed in a felony-murder case if the defendant was a minor participant in the crime and neither intended to kill nor had shown reckless indifference to human life. See 102 F. 3d, at 984-985. The Court of Appeals therefore granted respondent's petition and, relying on Circuit precedent holding that Beck applies only where the defendant is in fact sentenced to death, gave the State the option of retrying respondent or agreeing to modify his sentence to life imprisonment. See 102 F. 3d, at 986.Because the decision below conflicted with a prior decision of the Court of Appeals for the Ninth Circuit, see Greenawalt v. Ricketts, 943 F.2d 1020 (1991), cert. denied, 506 U. S. 888 (1992), we granted certiorari. 521 U. S. 1151 (1997).3IIThe Court of Appeals erred in concluding that its holding was compelled by Beck, as the two cases differ fundamentally. In Beck, the defendant was indicted and convicted of the capital offense of "'[r]obbery or attempts thereof when the victim is intentionally killed by the defendant.''' 447 U. S., at 627 (quoting Ala. Code § 13-11-2(a)(2) (1975)). Although state law recognized the noncapital, lesser included offense of felony murder, see 447 U. S., at 628-630, and although lesser included offense instructions were generally available to noncapital defendants under state law, the Ala-3 One of the questions on which we granted certiorari was whether the Court of Appeals' holding was a "new rule" under Teague v. Lane, 489 U. S. 288 (1989). See Pet. for Cert. i. Because the State raised this argument for the first time in its petition for a writ of certiorari, we choose to decide the case on the merits. Cf. Godinez v. Moran, 509 U. S. 389, 397, n. 8 (1993) (declining to address whether the Court of Appeals created a "new rule" because the petitioner did not raise a Teague defense in the lower courts or in its petition for certiorari).95bama death penalty statute prohibited such instructions in capital cases, id., at 628. As a result, Alabama juries had only two options: to convict the defendant of the capital crime, in which case they were required to impose the death penalty,4 or to acquit. Id., at 628-629. We found that the denial of the third option of convicting the defendant of a noncapital lesser included offense "diminish[ed] the reliability of the guilt determination." I d., at 638. Without such an option, if the jury believed that the defendant had committed some other serious offense, it might convict him of the capital crime rather than acquit him altogether. See id., at 642-643. We therefore held that Alabama was "constitutionally prohibited from withdrawing that option from the jury in a capital case." See id., at 638.In Nebraska, instructions on offenses that have been determined to be lesser included offenses of the charged crime are available to defendants when the evidence supports them, in capital and noncapital cases alike.5 Respondent's proposed instructions were refused because the Nebraska Supreme Court has held for over 100 years, in both capital and noncapital cases, that second-degree murder and manslaughter are not lesser included offenses of felony murder. See, e. g., State v. Price, 252 Neb. 365, 372, 562 N. W. 2d 340, 346 (1997); State v. Masters, 246 Neb. 1018, 1025, 524 N. W. 2d 342, 348 (1994); State v. Ruyle, 234 Neb. 760, 773, 452 N. W. 2d 734, 742-743 (1990); State v. McDonald, 195 Neb. 625, 636-637, 240 N. W. 2d 8, 15 (1976); Thompson v. State,4 If the jury imposed the death penalty, the trial judge had the authority to reduce the sentence to life imprisonment without the possibility of parole. The jury, however, was not instructed to this effect; rather, it was told that it was required to impose the death penalty if it found the defendant guilty. See 447 U. S., at 639, n. 15.5We noted this fact in Beck in distinguishing Alabama's scheme from the practices in the rest of the States. See 447 U. S., at 636, n. 12 (citing State v. Hegwood, 202 Neb. 379, 275 N. W. 2d 605 (1979)).96106 Neb. 395, 184 N. W. 68 (1921); Morgan v. State, 51 Neb. 672, 695, 71 N. W. 788, 794-795 (1897). If a Nebraska trial court gives instructions on those offenses, and the defendant is convicted only of second-degree murder or manslaughter, that conviction must be reversed on appeal. See Thompson v. State, supra, at 396, 184 N. w., at 68. Thus, as a matter of law, Nebraska prosecutors cannot obtain convictions for second-degree murder or manslaughter in a felony-murder trial.Beck is therefore distinguishable from this case in two critical respects. The Alabama statute prohibited instructions on offenses that state law clearly recognized as lesser included offenses of the charged crime, and it did so only in capital cases. Alabama thus erected an "artificial barrier" that restricted its juries to a choice between conviction for a capital offense and acquittal. Brief for United States as Amicus Curiae 20 (citing California v. Ramos, 463 U. S. 992, 1007 (1983)). Here, by contrast, the Nebraska trial court did not deny respondent instructions on any existing lesser included offense of felony murder; it merely declined to give instructions on crimes that are not lesser included offenses. In so doing, the trial court did not create an "artificial barrier" for the jury; nor did it treat capital cases differently from noncapital cases. Instead, it simply followed the Nebraska Supreme Court's interpretation of the relevant offenses under state law.By ignoring these distinctions, the Court of Appeals limited state sovereignty in a manner more severe than the rule in Beck. Almost all States, including Nebraska, provide instructions only on those offenses that have been deemed to constitute lesser included offenses of the charged crime. See n. 5, supra.6 We have never suggested that the Consti-6 In determining whether an offense is a lesser included offense of a particular crime, the States have adopted a variety of approaches. See, e. g., State v. Berlin, 133 Wash. 2d 541, 550-551, 947 P. 2d 700, 704-70597tution requires anything more. The Court of Appeals in this case, however, required in effect that States create lesser included offenses to all capital crimes, by requiring that an instruction be given on some other offense-what could be called a "lesser related offense"-when no lesser included offense exists. Such a requirement is not only unprecedented, but also unworkable. Under such a scheme, there would be no basis for determining the offenses for which instructions are warranted. The Court of Appeals apparently would recognize a constitutional right to an instruction on any offense that bears a resemblance to the charged crime and is supported by the evidence. Such an affirmative obligation is unquestionably a greater limitation on a State's prerogative to structure its criminal law than is Beck's rule that a State may not erect a capital-specific, arti-(1997) (en banc) (comparing statutory elements of the lesser offense to determine whether all of them are contained in the greater offense); People v. Beach, 429 Mich. 450, 462, 418 N. W. 2d 861, 866-867 (1988) (applying the "cognate evidence" approach: a lesser included offense instruction may be given even though all of the statutory elements of the lesser offense are not contained in the greater offense, if the "overlapping elements relate to the common purpose of the statutes" and the specific evidence adduced would support an instruction on the cognate offense (internal quotation marks and citation omitted)); State v. Curtis, 130 Idaho 522, 524, 944 P. 2d 119, 121-122 (1997) (court looks both to the statutory elements and to the information to determine whether it "charges the accused with a crime the proof of which necessarily includes proof of the acts that constitute the lesser included offense"). Cf. Schmuck v. United States, 489 U. S. 705 (1989) (adopting statutory elements test for federal criminal law).Since the time of respondent's conviction, Nebraska has alternated between use of the statutory elements test and the cognate evidence test; it currently employs the former. See State v. Williams, 243 Neb. 959, 963965, 503 N. W. 2d 561, 564-565 (1993) (readopting statutory elements test), overruling State v. Garza, 236 Neb. 202, 207-208, 459 N. W. 2d 739, 743 (1990) (reaffirming cognate evidence test), disapproving State v. Lovelace, 212 Neb. 356, 359-360, 322 N. W. 2d 673, 674-675 (1982) (applying statutory elements test). It has nonetheless consistently reaffirmed its holding that felony murder has no lesser included homicide offenses.98ficial barrier to the provision of instructions on offenses that actually are lesser included offenses under state law.The Court of Appeals justified its holding principally on the ground that respondent had been placed in the same position as the defendant in Beck-that there had been a distortion of the factfinding process because his jury had been "'forced into an all-or-nothing choice between capital murder and innocence.'" 102 F. 3d, at 982 (quoting Spaziano v. Florida, 468 U. S. 447, 455 (1984)). In so doing, the Court of Appeals again overlooked significant distinctions between this case and Beck. In Beck, the death penalty was automatically tied to conviction, and Beck's jury was told that if it convicted the defendant of the charged offense, it was required to impose the death penalty. See Beck v. Alabama, 447 U. S., at 639, n. 15. This threatened to make the issue at trial whether the defendant should be executed or not, rather than "whether the State ha[d] proved each and every element of the capital crime beyond a reasonable doubt." Id., at 643, n.19. In addition, the distortion of the trial process carried over directly to sentencing, because an Alabama jury unwilling to acquit had no choice but to impose the death penalty. There was thus a significant possibility that the death penalty would be imposed upon defendants whose conduct did not merit it, simply because their juries might be convinced that they had committed some serious crime and should not escape punishment entirely.These factors are not present here. Respondent's jury did not have the burden of imposing a sentence. Indeed, with respect to respondent's insanity defense, it was specifically instructed that it had "no right to take into consideration what punishment or disposition he mayor may not receive in the event of his conviction or ... acquittal by reason of insanity." App.24. In addition, the three-judge panel that imposed the death penalty did not have to consider the dilemma faced by Beck's jury; its alternative to death was not99setting respondent free, but rather sentencing him to life imprisonment.7Moreover, respondent's proposed instructions would have introduced another kind of distortion at trial. Nebraska proceeded against respondent only on a theory of felony murder, a crime that under state law has no lesser included homicide offenses. The State therefore assumed the obligation of proving only that crime, as well as any lesser included offenses that existed under state law and were supported by the evidence; its entire case focused solely on that obligation. To allow respondent to be convicted of homicide offenses that are not lesser included offenses of felony murder, therefore, would be to allow his jury to find beyond a reasonable doubt elements that the State had not attempted to prove, and indeed that it had ignored during the course of trial. This can hardly be said to be a reliable result: "Where no lesser included offense exists, a lesser included offense instruction detracts from, rather than enhances, the rationality of the process." Spaziano v. Florida, supra, at 455.The Court of Appeals also erroneously relied upon our decisions in Tison v. Arizona, 481 U. S. 137 (1987), and Enmund v. Florida, 458 U. S. 782 (1982), to support its holding. It reasoned that because those cases require proof of a culpable mental state with respect to the killing before the death penalty may be imposed for felony murder, Nebraska could not refuse lesser included offense instructions on the ground that the only intent required for a felony-murder conviction is the intent to commit the underlying felony. See 102 F. 3d, at 984. In so doing, the Court of Appeals read Tison and7We are not, of course, presented with a case that differs from Beck only in that the jury is not the sentencer, and we express no opinion here whether that difference alone would render Beck inapplicable. The crucial distinction between Beck and this case, as noted, is the distinction between a State's prohibiting instructions on offenses that state law recognizes as lesser included, and a State's refusing to instruct on offenses that state law does not recognize as lesser included.100Enmund as essentially requiring the States to alter their definitions of felony murder to include a mens rea requirement with respect to the killing.8 In Cabana v. Bullock, 474 U. S. 376 (1986), however, we rejected precisely such a reading and stated that "our ruling in Enmund does not concern the guilt or innocence of the defendant-it establishes no new elements of the crime of murder that must be found by the jury" and "does not affect the state's definition of any substantive offense." Id., at 385 (internal quotation marks and citation omitted). For this reason, we held that a State could comply with Enmund's requirement at sentencing or even on appeal. See 474 U. S., at 392. Accordingly, Tison and Enmund do not affect the showing that a State must make at a defendant's trial for felony murder, so long as their requirement is satisfied at some point thereafter. As such, these cases cannot override state-law determinations of when instructions on lesser included offenses are permissible and when they are not.Finally, respondent argues that the Nebraska Supreme Court's longstanding interpretation that felony murder has no lesser included homicide offenses is arbitrary because, in his view, it is based only on recitations from prior cases, rather than on application of the lesser included offense tests in place since his conviction. See Brief for Respondent 4043. This contention is certainly strained with respect to the crime of second-degree murder, which requires proof of intent to kill, while felony murder does not. See Neb. Rev. Stat. §§ 28-303, 28-304 (1995). It appears that the Nebraska Supreme Court has not undertaken respondent's suggested analysis with respect to unlawful act manslaughterunintentional killing, committed in the perpetration of an unlawful act. See § 28-305. On his direct appeal, however, respondent did not challenge the Nebraska Supreme Court's8The dissent also appears to be of this view, contending that Nebraska's justification for not providing an instruction on second-degree murder is inapplicable when the death penalty is sought. See post, at 101-102.101interpretation on this ground, and the clearest statement in his briefs on why a manslaughter instruction should have been given referred to manslaughter generally, for the following reason: "As the Court ruled in State v. Ellis, 208 Neb. 379,303 N. W. 2d 741 (1981), such an instruction is necessary 'where there is no eye witness to the act, and the evidence is largely circumstantial.' " Reply Brief for Appellant in No. 81-706 (Neb. Sup. Ct.), p. 11. We will not second-guess the Nebraska Supreme Court's 100-year-old interpretation of state law when respondent failed to present his challenge to that court in the first instance.For the foregoing reasons, the Court of Appeals' judgment granting respondent a conditional writ of habeas corpus is reversed.It is so ordered

OCTOBER TERM, 1997SyllabusHOPKINS, WARDEN v. REEVESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 96-1693. Argued February 23, 1998-Decided June 8,1998Respondent was indicted on two counts of felony murder under Nebraska law. The Nebraska first-degree murder statute defines felony murder as murder committed in the perpetration of certain enumerated felonies, including, as relevant here, sexual assault and attempt to commit sexual assault in the first degree. Under Nebraska law, intent to kill is conclusively presumed if the State proves intent to commit the underlying felony. A felony-murder conviction makes a defendant eligible for the death penalty, which in Nebraska is imposed judicially, not by the trial jury. The trial court refused respondent's request to instruct the jury on second-degree murder and manslaughter on the ground that the State Supreme Court consistently has held that these crimes are not lesser included offenses of felony murder. Respondent's jury then convicted him on both felony-murder counts, and a three-judge panel sentenced him to death. After exhausting his state remedies, respondent filed a federal habeas corpus petition, claiming, inter alia, that the trial court's failure to give the requested instructions was unconstitutional under Beck v. Alabama, 447 U. S. 625, in which this Court invalidated an Alabama law that prohibited lesser included offense instructions in capital cases, when lesser included offenses to the charged crime existed under state law and such instructions were generally given in noncapital cases. The District Court granted relief on an unrelated due process claim, which the Eighth Circuit rejected. However, the Eighth Circuit also held that, in failing to give the requested instructions, the trial court had committed the same constitutional error as that in Beck.Held: Beck does not require state trial courts to instruct juries on offenses that are not lesser included offenses of the charged crime under state law. Pp. 94-10l.(a) Beck is distinguishable from this case in two critical respects: The Alabama statute prohibited instructions on offenses that state law clearly recognized as lesser included offenses of the charged crime, and it did so only in capital cases. Alabama thus erected an artificial barrier that restricted its juries to a choice between conviction for a capital offense and acquittal. By contrast, when the Nebraska trial court declined to give the requested instructions, it merely followed the State Supreme Court's 100-year-old rule that second-degree murder and man-89slaughter are not lesser included offenses of felony murder. The trial court neither created an artificial barrier for the jury nor treated capital and non capital cases differently. By ignoring these distinctions, the Eighth Circuit limited the State's prerogative to structure its criminal law more severely than does the rule in Beck, for it required in effect that States create lesser included offenses to all capital crimes when no such offense exists under state law. Pp. 94-97.(b) The Eighth Circuit again overlooked significant distinctions between this case and Beck when it found that there was a distortion of the factfinding process because respondent's jury had been forced into an all-or-nothing choice between capital murder and innocence. The fact that Beck's jury was told that if it convicted him of the charged offense it must impose the death penalty threatened to make the issue at trial whether he should be executed or not, and not whether he was guilty beyond a reasonable doubt. The distortion of the trial process carried over to sentencing because an Alabama jury unwilling to acquit had no choice but to impose death. These factors are not present here. Respondent's jury did not impose sentence, and the sentencing panel's alternative to death was not setting respondent free, but rather sentencing him to life imprisonment. Moreover, respondent's proposed instructions would have introduced another kind of distortion at trial, for they would have allowed the jury to find beyond a reasonable doubt elements that the State, having assumed the obligation of proving only one crime, had not attempted to prove and indeed had ignored during trial. Pp. 98-99.(c) The requirement of Tison v. Arizona, 481 U. S. 137, and Enmund v. Florida, 458 U. S. 782, that a culpable mental state with respect to the killing be proved before the death penalty may be imposed for felony murder does not affect the showing that a State must make at a defendant's felony-murder trial, so long as the requirement is satisfied at some point thereafter, such as at sentencing or on appeal. Cabana v. Bullock, 474 U. S. 376, 385, 392. As such, these cases cannot override state-law determinations of when instructions on lesser included offenses are permissible and when they are not. Respondent's argument that the Nebraska Supreme Court's longstanding interpretation that felony murder has no lesser included homicide offenses is arbitrary is without merit. That contention is certainly strained with respect to the crime of second-degree murder, which requires proof of intent to kill, while felony murder does not; respondent did not present such a challenge with respect to manslaughter to the Nebraska Supreme Court, and therefore that claim is not considered here. Pp. 99-101.102 F.3d 977, reversed.90Full Text of Opinion

1988_87-1555

JUSTICE KENNEDY delivered the opinion of the Court.The Federal Railroad Safety Act of 1970 authorizes the Secretary of Transportation to "prescribe, as necessary, appropriate rules, regulations, orders, and standards for all areas of railroad safety." 84 Stat. 971, 45 U.S.C. § 431(a). Finding that alcohol and drug abuse by railroad employees poses a serious threat to safety, the Federal Railroad Administration (FRA) has promulgated regulations that mandate blood and urine tests of employees who are involved in certain train accidents. The FRA also has adopted regulations that do not require, but do authorize, railroads to administer breath and urine tests to employees who violate certain safety rules. The question presented by this case is whether these regulations violate the Fourth Amendment.IAThe problem of alcohol use on American railroads is as old as the industry itself, and efforts to deter it by carrier rules began at least a century ago. For many years, railroads have prohibited operating employees from possessing alcohol or being intoxicated while on duty, and from consuming alcoholic beverages while subject to being called for duty. More recently, these proscriptions have been expanded to forbid possession or use of certain drugs. These restrictions are Page 489 U. S. 607 embodied in "Rule G," an industry-wide operating rule promulgated by the Association of American Railroads, and are enforced, in various formulations, by virtually every railroad in the country. The customary sanction for Rule G violations is dismissal.In July, 1983, the FRA expressed concern that these industry efforts were not adequate to curb alcohol and drug abuse by railroad employees. The FRA pointed to evidence indicating that on-the-job intoxication was a significant problem in the railroad industry. [Footnote 1] The FRA also found, after a review of accident investigation reports, that, from 1972 to 1983,"the nation's railroads experienced at least 21 significant train accidents involving alcohol or drug use as a probable cause or contributing factor,"and that these accidents"resulted in 25 fatalities, 61 non-fatal injuries, and property damage estimated at $19 million (approximately $27 million in 1982 dollars)."48 Fed.Reg. 30726 (1983). The FRA further identified"an additional 17 fatalities to operating employees working on or around rail rolling stock that involved alcohol or drugs as a contributing factor."Ibid. In light of these problems, the FRA solicited comments from interested parties on a various regulatory approaches to the problems of alcohol and drug abuse throughout the Nation's railroad system.Comments submitted in response to this request indicated that railroads were able to detect a relatively small number of Rule G violations, owing, primarily, to their practice of Page 489 U. S. 608 relying on observation by supervisors and coworkers to enforce the rule. 49 Fed.Reg. 24266-24267 (1984). At the same time, "industry participants . . . confirmed that alcohol and drug use [did] occur on the railroads with unacceptable frequency," and available information from all sources"suggest[ed] that the problem includ[ed] 'pockets' of drinking and drug use involving multiple crew members (before and during work), sporadic cases of individuals reporting to work impaired, and repeated drinking and drug use by individual employees who are chemically or psychologically dependent on those substances."Id. at 24253-24254. "Even without the benefit of regular post-accident testing," the FRA"identified 34 fatalities, 66 injuries and over $28 million in property damage (in 1983 dollars) that resulted from the errors of alcohol and drug-impaired employees in 45 train accidents and train incidents during the period 1975 through 1983."Id. at 24254. Some of these accidents resulted in the release of hazardous materials and, in one case, the ensuing pollution required the evacuation of an entire Louisiana community. Id. at 24254, 24259. In view of the obvious safety hazards of drug and alcohol use by railroad employees, the FRA announced, in June, 1984, its intention to promulgate federal regulations on the subject.BAfter reviewing further comments from representatives of the railroad industry, labor groups, and the general public, the FRA, in 1985, promulgated regulations addressing the problem of alcohol and drugs on the railroads. The final regulations apply to employees assigned to perform service subject to the Hours of Service Act, ch. 2939, 34 Stat. 1415, as amended, 45 U.S.C. § 61 et seq. The regulations prohibit covered employees from using or possessing alcohol or any controlled substance. 49 CFR § 219.101(a)(1) (1987). The regulations further prohibit those employees from reporting for covered service while under the influence of, or Page 489 U. S. 609 impaired by, alcohol, while having a blood alcohol concentration of .04 or more, or while under the influence of, or impaired by, any controlled substance. § 219.101(a)(2). The regulations do not restrict, however, a railroad's authority to impose an absolute prohibition on the presence of alcohol or any drug in the body fluids of persons in its employ, § 219.101(c), and, accordingly, they do not "replace Rule G or render it unenforceable." 50 Fed.Reg. 31538 (1985).To the extent pertinent here, two subparts of the regulations relate to testing. Subpart C, which is entitled "Post-Accident Toxicological Testing," is mandatory. It provides that railroads"shall take all practicable steps to assure that all covered employees of the railroad directly involved . . . provide blood and urine samples for toxicological testing by FRA,"§ 219.203(a), upon the occurrence of certain specified events. Toxicological testing is required following a "major train accident," which is defined as any train accident that involves (i) a fatality, (ii) the release of hazardous material accompanied by an evacuation or a reportable injury, or (iii) damage to railroad property of $500,000 or more. § 219.201 (a)(1). The railroad has the further duty of collecting blood and urine samples for testing after an "impact accident," which is defined as a collision that results in a reportable injury, or in damage to railroad property of $50,000 or more. § 219.201(a)(2). Finally, the railroad is also obligated to test after "[a]ny train incident that involves a fatality to any on-duty railroad employee." § 219.201(a)(3).After occurrence of an event which activates its duty to test, the railroad must transport all crew members and other covered employees directly involved in the accident or incident to an independent medical facility, where both blood and urine samples must be obtained from each employee. [Footnote 2] After Page 489 U. S. 610 the samples have been collected, the railroad is required to ship them by prepaid air freight to the FRA laboratory for analysis. § 219.205(d). There, the samples are analyzed using "state-of-the-art equipment and techniques" to detect and measure alcohol and drugs. [Footnote 3] The FRA proposes to place primary reliance on analysis of blood samples, as blood is "the only available body fluid . . . that can provide a clear indication not only of the presence of alcohol and drugs but also their current impairment effects." 49 Fed.Reg. 24291 (1984). Urine samples are also necessary, however, because drug traces remain in the urine longer than in blood, and in some cases it will not be possible to transport employees to a medical facility before the time it takes for certain drugs to be eliminated from the bloodstream. In those instances, a"positive urine test, taken with specific information on the pattern of elimination for the particular drug and other information on the behavior of the employee and the circumstances of the accident, may be crucial to the determination of"the cause of an accident. Ibid.The regulations require that the FRA notify employees of the results of the tests and afford them an opportunity to respond in writing before preparation of any final investigative report. See § 219.211(a)(2). Employees who refuse to provide required blood or urine samples may not perform covered Page 489 U. S. 611 service for nine months, but they are entitled to a hearing concerning their refusal to take the test. § 219.213.Subpart D of the regulations, which is entitled "Authorization to Test for Cause," is permissive. It authorizes railroads to require covered employees to submit to breath or urine tests in certain circumstances not addressed by Subpart C. Breath or urine tests, or both, may be ordered (1) after a reportable accident or incident, where a supervisor has a "reasonable suspicion" that an employee's acts or omissions contributed to the occurrence or severity of the accident or incident, § 219.301(b)(2); or (2) in the event of certain specific rule violations, including noncompliance with a signal and excessive speeding, § 219.301(b)(3). A railroad also may require breath tests where a supervisor has a "reasonable suspicion" that an employee is under the influence of alcohol, based upon specific, personal observations concerning the appearance, behavior, speech, or body odors of the employee. § 219.301(b)(1). Where impairment is suspected, a railroad, in addition, may require urine tests, but only if two supervisors make the appropriate determination, § 219.301(c)(2)(i), and, where the supervisors suspect impairment due to a substance other than alcohol, at least one of those supervisors must have received specialized training in detecting the signs of drug intoxication, § 219.301(c)(2)(ii).Subpart D further provides that, whenever the results of either breath or urine tests are intended for use in a disciplinary proceeding, the employee must be given the opportunity to provide a blood sample for analysis at an independent medical facility. § 219.303(c). If an employee declines to give a blood sample, the railroad may presume impairment, absent persuasive evidence to the contrary, from a positive showing of controlled substance residues in the urine. The railroad must, however, provide detailed notice of this presumption to its employees, and advise them of their right to provide a contemporaneous blood sample. As in the case of samples procured under Subpart C, the regulations set forth Page 489 U. S. 612 procedures for the collection of samples, and require that samples "be analyzed by a method that is reliable within known tolerances." § 219.307(b).CRespondents, the Railway Labor Executives' Association and various of its member labor organizations, brought the instant suit in the United States District Court for the Northern District of California, seeking to enjoin the FRA's regulations on various statutory and constitutional grounds. In a ruling from the bench, the District Court granted summary judgment in petitioners' favor. The court concluded that railroad employees "have a valid interest in the integrity of their own bodies" that deserved protection under the Fourth Amendment. App. to Pet. for Cert. 53a. The court held, however, that this interest was outweighed by the competing"public and governmental interest in the . . . promotion of . . . railway safety, safety for employees, and safety for the general public that is involved with the transportation."Id. at 52a. The District Court found respondents' other constitutional and statutory arguments meritless.A divided panel of the Court of Appeals for the Ninth Circuit reversed. Railway Labor ExecUtives' Assn. v. Burnley, 839 F.2d 575 (1988). The court held, first, that tests mandated by a railroad in reliance on the authority conferred by Subpart D involve sufficient Government action to implicate the Fourth Amendment, and that the breath, blood, and urine tests contemplated by Page 489 U. S. 613 the FRA regulations are Fourth Amendment searches. The court also"agre[ed] that the exigencies of testing for the presence of alcohol and drugs in blood, urine or breath require prompt action which precludes obtaining a warrant."Id. at 583. The court further held"that accommodation of railroad employees' privacy interest with the significant safety concerns of the government does not require adherence to a probable cause requirement,"and, accordingly, that the legality of the searches contemplated by the FRA regulations depends on their reasonableness under all the circumstances. Id. at 587.The court concluded, however, that particularized suspicion is essential to a finding that toxicological testing of railroad employees is reasonable. Ibid. A requirement of individualized suspicion, the court stated, would impose "no insuperable burden on the government," id. at 588, and would ensure that the tests are confined to the detection of current impairment, rather than to the discovery of"the metabolites of various drugs, which are not evidence of current intoxication and may remain in the body for days or weeks after the ingestion of the drug."Id. at 588-589. Except for the provisions authorizing breath and urine tests on a "reasonable suspicion" of drug or alcohol impairment, 49 CFR §§ 219.301(b)(1) and (c)(2) (1987), the FRA regulations did not require a showing of individualized suspicion, and, accordingly, the court invalidated them.Judge Alarcon dissented. He criticized the majority for "fail[ing] to engage in [a] balancing of interests" and for focusing instead "solely on the degree of impairment of the workers' privacy interests." 839 F.2d at 597. The dissent would have held "that the government's compelling need to assure railroad safety by controlling drug use among railway personnel outweighs the need to protect privacy interests." Id. at 596.We granted the federal parties' petition for a writ of certiorari, 486 U.S. 1042 (1988), to consider whether the regulations invalidated by the Court of Appeals violate the Fourth Amendment. We now reverse.IIThe Fourth Amendment provides that"[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ."The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary Page 489 U. S. 614 and invasive acts by officers of the Government or those acting at their direction. Camara v. Municipal Court of San Francisco, 387 U. S. 523, 387 U. S. 528 (1967). See also Delaware v. Prouse, 440 U. S. 648, 440 U. S. 653-654 (1979); United States v. Martinez-Fuerte, 428 U. S. 543, 428 U. S. 554 (1976). Before we consider whether the tests in question are reasonable under the Fourth Amendment, we must inquire whether the tests are attributable to the Government or its agents, and whether they amount to searches or seizures. We turn to those matters.AAlthough the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government. See United States v. Jacobsen, 466 U. S. 109, 466 U. S. 113-114 (1984); Coolidge v. New Hampshire, 403 U. S. 443, 403 U. S. 487 (1971). See also Burdeau v. McDowell, 256 U. S. 465, 256 U. S. 475 (1921). A railroad that complies with the provisions of Subpart C of the regulations does so by compulsion of sovereign authority, and the lawfulness of its acts is controlled by the Fourth Amendment. Petitioners contend, however, that the Fourth Amendment is not implicated by Subpart D of the regulations, as nothing in Subpart D compels any testing by private railroads.We are unwilling to conclude, in the context of this facial challenge, that breath and urine tests required by private railroads in reliance on Subpart D will not implicate the Fourth Amendment. Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government's participation in the private party's activities, cf. Lustig v. United States, 338 U. S. 74, 338 U. S. 78-79 (1949) (plurality opinion); Byars v. United States, 273 U. S. 28, 273 U. S. 32-33 (1927), a question that can only be resolved "in light of all the circumstances," Coolidge v. New Hampshire, supra, Page 489 U. S. 615 at 403 U. S. 487. The fact that the Government has not compelled a private party to perform a search does not, by itself, establish that the search is a private one. Here, specific features of the regulations combine to convince us that the Government did more than adopt a passive position toward the underlying private conduct.The regulations, including those in Subpart D, preempt state laws, rules, or regulations covering the same subject matter, 49 CFR § 219.13(a) (1987), and are intended to supersede "any provision of a collective bargaining agreement, or arbitration award construing such an agreement," 50 Fed.Reg. 31552 (1985). They also confer upon the FRA the right to receive certain biological samples and test results procured by railroads pursuant to Subpart D. § 219.11(c). In addition, a railroad may not divest itself of, or otherwise compromise by contract, the authority conferred by Subpart D. As the FRA explained, such"authority . . . is conferred for the purpose of promoting the public safety, and a railroad may not shackle itself in a way inconsistent with its duty to promote the public safety."50 Fed.Reg. 31552 (1985). Nor is a covered employee free to decline his employer's request to submit to breath or urine tests under the conditions set forth in Subpart D. See § 219.11(b). An employee who refuses to submit to the tests must be withdrawn from covered service. See 4 App. to Field Manual 18.In light of these provisions, we are unwilling to accept petitioners' submission that tests conducted by private railroads in reliance on Subpart D will be primarily the result of private initiative. The Government has removed all legal barriers to the testing authorized by Subpart D, and indeed has made plain not only its strong preference for testing but also its desire to share the fruits of such intrusions. In addition, it has mandated that the railroads not bargain away the authority to perform tests granted by Subpart D. These are clear indices of the Government's encouragement, endorsement, Page 489 U. S. 616 and participation, and suffice to implicate the Fourth Amendment.BOur precedents teach that where, as here, the Government seeks to obtain physical evidence from a person, the Fourth Amendment may be relevant at several levels. See, e.g., United States v. Dionisio, 410 U. S. 1, 410 U. S. 8 (1973). The initial detention necessary to procure the evidence may be a seizure of the person, Cupp v. Murphy, 412 U. S. 291, 412 U. S. 294-295 (1973); Davis v. Mississippi, 394 U. S. 721, 394 U. S. 726-727 (1969), if the detention amounts to a meaningful interference with his freedom of movement. INS v. Delgado, 466 U. S. 210, 466 U. S. 215 (1984); United States v. Jacobsen, supra, at 466 U. S. 113, n. 5. Obtaining and examining the evidence may also be a search, see Cupp v. Murphy, supra, at 412 U. S. 295; United States v. Dionisio, supra, at 410 U. S. 8, 410 U. S. 13-14, if doing so infringes an expectation of privacy that society is prepared to recognize as reasonable, see, e.g., California v. Greenwood, 486 U. S. 35, 486 U. S. 43 (1988); United States v. Jacobsen, supra, at 466 U. S. 113.We have long recognized that a "compelled intrusio[n] into the body for blood to be analyzed for alcohol content" must be deemed a Fourth Amendment search. See Schmerber v. California, 384 U. S. 757, 384 U. S. 767-768 (1966). See also Winston v. Lee, 470 U. S. 753, 470 U. S. 760 (1985). In light of our society's concern for the security of one's person, see, e.g., Terry v. Ohio, 392 U. S. 1, 392 U. S. 9 (1968), it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested employee's privacy interests. Cf. Arizona v. Hicks, 480 U. S. 321, 480 U. S. 324-325 (1987). Much the same is true of the breath-testing procedures required under Subpart D of the regulations. Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or "deep lung" breath for chemical analysis, see, e.g., 467 U. S. Page 489 U. S. 617 Trombetta, 467 U. S. 479, 467 U. S. 481 (1984), implicates similar concerns about bodily integrity and, like the blood-alcohol test we considered in Schmerber, should also be deemed a search, see 1 W. LaFave, Search and Seizure § 2.6(a), p. 463 (1987). See also Burnett v. Anchorage, 806 F.2d 1447, 1449 (CA9 1986); Shoemaker v. Handel, 795 F.2d 1136, 1141 (CA3), cert. denied, 479 U.S. 986 (1986).Unlike the blood testing procedure at issue in Schmerber, the procedures prescribed by the FRA regulations for collecting and testing urine samples do not entail a surgical intrusion into the body. It is not disputed, however, that chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic. Nor can it be disputed that the process of collecting the sample to be tested, which may in some cases involve visual or aural monitoring of the act of urination, itself implicates privacy interests. As the Court of Appeals for the Fifth Circuit has stated:"There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms, if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law, as well as social custom."National Treasury Employees UnIon v. Von Raab, 816 F.2d 170, 175 (1987). Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment. [Footnote 4] Page 489 U. S. 618In view of our conclusion that the collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches, we need not characterize the employer's antecedent interference with the employee's freedom of movement as an independent Fourth Amendment seizure. As our precedents indicate, not every governmental interference with an individual's freedom of movement raises such constitutional concerns that there is a seizure of the person. See United States v. Dionisio, 410 U.S. at 410 U. S. 9-11 (grand jury subpoena, though enforceable by contempt, does not effect a seizure of the person); United States v. Mara, 410 U. S. 19, 410 U. S. 21 (1973) (same). For present purposes, it suffices to note that any limitation on an employee's freedom of movement that is necessary to obtain the blood, urine, or breath samples contemplated by the regulations must be considered in assessing the intrusiveness of the searches effected by the Government's testing program. Cf. United States v. Place, 462 U. S. 696, 462 U. S. 707-709 (1983).IIIATo hold that the Fourth Amendment is applicable to the drug and alcohol testing prescribed by the FRA regulations Page 489 U. S. 619 is only to begin the inquiry into the standards governing such intrusions. O'Connor v. Ortega, 480 U. S. 709, 480 U. S. 719 (1987) (plurality opinion); New Jersey v. T.L.O., 469 U. S. 325, 469 U. S. 337 (1985). For the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. United States v. Sharpe, 470 U. S. 675, 470 U. S. 682 (1985); Schmerber v. California, 384 U.S. at 384 U. S. 768. What is reasonable, of course, "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." United States v. Montoya de Hernandez, 473 U. S. 531, 473 U. S. 537 (1985). Thus, the permissibility of a particular practice"is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests."Delaware v. Prouse, 440 U.S. at 440 U. S. 654; United States v. Martinez-Fuerte, 428 U. S. 543 (1976).In most criminal cases, we strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment. See United States v. Place, supra, at 462 U. S. 701, and n. 2; United States v. United States District Court, 407 U. S. 297, 407 U. S. 315 (1972). Except in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. See, e.g., Payton v. New York, 445 U. S. 573, 445 U. S. 586 (1980); Mincey v. Arizona, 437 U. S. 385, 437 U. S. 390 (1978). We have recognized exceptions to this rule, however,"when 'special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.'"Griffin v. Wisconsin, 483 U. S. 868, 483 U. S. 873 (1987), quoting New Jersey v. T.L.O., 469 U.S. at 469 U. S. 351 (BLACKMUN, J., concurring in judgment). When faced with such special needs, we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements in the particular context. See, e.g., Griffin v. Wisconsin, supra, at 483 U. S. 873 (search of probationer's home); New York v. Page 489 U. S. 620 Burger, 482 U. S. 691, 482 U. S. 699-703 (1987) (search of premises of certain highly regulated businesses); O'Connor v. Ortega, 480 U.S. at 480 U. S. 721-725 (work-related searches of employees' desks and offices); New Jersey v. T.L.O., supra, at 469 U. S. 337-342 (search of student's property by school officials); Bell v. Wolfish, 441 U. S. 520, 441 U. S. 558-560 (1979) (body cavity searches of prison inmates).The Government's interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison,"likewise presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements."Griffin v. Wisconsin, 483 U.S. at 483 U. S. 873-874. The hours of service employees covered by the FRA regulations include persons engaged in handling orders concerning train movements, operating crews, and those engaged in the maintenance and repair of signal systems. 50 Fed.Reg. 31511 (1985). It is undisputed that these and other covered employees are engaged in safety-sensitive tasks. The FRA so found, and respondents conceded the point at oral argument. Tr. of Oral Arg. 46-47. As we have recognized, the whole premise of the Hours of Service Act is that"[t]he length of hours of service has direct relation to the efficiency of the human agencies upon which protection [of] life and property necessarily depends."Baltimore & Ohio R. Co. v. ICC, 221 U. S. 612, 221 U. S. 619 (1911). See also Atchison, T. & S. F. R. Co. v. United States, 244 U. S. 336, 244 U. S. 342 (1917) ("[I]t must be remembered that the purpose of the act was to prevent the dangers which must necessarily arise to the employee and to the public from continuing men in a dangerous and hazardous business for periods so long as to render them unfit to give that service which is essential to the protection of themselves and those entrusted to their care").The FRA has prescribed toxicological tests, not to assist in the prosecution of employees, but rather "to prevent accidents Page 489 U. S. 621 and casualties in railroad operations that result from impairment of employees by alcohol or drugs." 49 CFR § 219.1(a) (1987). [Footnote 5] This governmental interest in ensuring the safety of the traveling public and of the employees themselves plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty. This interest also "require[s] and justif[ies] the exercise of supervision to assure that the restrictions are in fact observed." Griffin v. Wisconsin, 483 U.S. at 483 U. S. 875. The question that remains, then, is whether the Government's need to monitor compliance with these restrictions justifies the privacy intrusions at issue absent a warrant or individualized suspicion.BAn essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search Page 489 U. S. 622 or seizure that such intrusions are not the random or arbitrary acts of government agents. A warrant assures the citizen that the intrusion is authorized by law, and that it is narrowly limited in its objectives and scope. See, e.g., New York v. Burger, 482 U.S. at 482 U. S. 703; United States v. Chadwick, 433 U. S. 1, 433 U. S. 9 (1977); Camara v. Municipal Court of San Francisco, 387 U.S. at 387 U. S. 532. A warrant also provides the detached scrutiny of a neutral magistrate, and thus ensures an objective determination whether an intrusion is justified in any given case. See United States v. Chadwick, supra, at 433 U. S. 9. In the present context, however, a warrant would do little to further these aims. Both the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined narrowly and specifically in the regulations that authorize them, and doubtless are well known to covered employees. Cf. United States v. Biswell, 406 U. S. 311, 406 U. S. 316 (1972). Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate. Cf. Colorado v. Bertine, 479 U. S. 367, 479 U. S. 376 (1987) (BLACKMUN, J., concurring). [Footnote 6] Page 489 U. S. 623We have recognized, moreover, that the Government's interest in dispensing with the warrant requirement is at its strongest when, as here, "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search." Camara v. Municipal Court of San Francisco, supra, at 387 U. S. 533. See also New Jersey v. T.L.O., 469 U.S. at 469 U. S. 340; Donovan v. Dewey, 452 U. S. 594, 452 U. S. 603 (1981). As the FRA recognized, alcohol and other drugs are eliminated from the bloodstream at a constant rate, see 49 Fed.Reg. 24291 (1984), and blood and breath samples taken to measure whether these substances were in the bloodstream when a triggering event occurred must be obtained as soon as possible. See Schmerber v. California, 384 U.S. at 384 U. S. 770-771. Although the metabolites of some drugs remain in the urine for longer periods of time, and may enable the FRA to estimate whether the employee was impaired by those drugs at the time of a covered accident, incident, or rule violation, 49 Fed.Reg. 24291 (1984), the delay necessary to procure a warrant nevertheless may result in the destruction of valuable evidence.The Government's need to rely on private railroads to set the testing process in motion also indicates that insistence on a warrant requirement would impede the achievement of the Government's objective. Railroad supervisors, like school officials, see New Jersey v. T.L.O., supra, at 469 U. S. 339-340, and hospital administrators, see O'Connor v. Ortega, 480 U.S. at 480 U. S. 722, are not in the business of investigating violations of the criminal laws or enforcing administrative codes, and otherwise have little occasion to become familiar with the intricacies of this Court's Fourth Amendment jurisprudence."Imposing unwieldy warrant procedures . . . upon supervisors, Page 489 U. S. 624 who would otherwise have no reason to be familiar with such procedures, is simply unreasonable."Ibid.In sum, imposing a warrant requirement in the present context would add little to the assurances of certainty and regularity already afforded by the regulations, while significantly hindering, and in many cases frustrating, the objectives of the Government's testing program. We do not believe that a warrant is essential to render the intrusions here at issue reasonable under the Fourth Amendment.COur cases indicate that even a search that may be performed without a warrant must be based, as a general matter, on probable cause to believe that the person to be searched has violated the law. See New Jersey v. T.L.O., supra, at 469 U. S. 340. When the balance of interests precludes insistence on a showing of probable cause, we have usually required "some quantum of individualized suspicion" before concluding that a search is reasonable. See, e.g., United States v. Martinez-Fuerte, 428 U.S. at 428 U. S. 560. We made it clear, however, that a showing of individualized suspicion is not a constitutional floor below which a search must be presumed unreasonable. Id. at 428 U. S. 561. In limited circumstances, where the privacy interests implicated by the search are minimal and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. We believe this is true of the intrusions in question here.By and large, intrusions on privacy under the FRA regulations are limited. To the extent transportation and like restrictions are necessary to procure the requisite blood, breath, and urine samples for testing, this interference alone is minimal, given the employment context in which it takes place. Ordinarily, an employee consents to significant restrictions in his freedom of movement where necessary for Page 489 U. S. 625 his employment, and few are free to come and go as they please during working hours. See, e.g., INS v. Delgado, 466 U.S. at 466 U. S. 218. Any additional interference with a railroad employee's freedom of movement that occurs in the time it takes to procure a blood, breath, or urine sample for testing cannot, by itself, be said to infringe significant privacy interests.Our decision in Schmerber v. California, 384 U. S. 757 (1966), indicates that the same is true of the blood tests required by the FRA regulations. In that case, we held that a State could direct that a blood sample be withdrawn from a motorist suspected of driving while intoxicated, despite his refusal to consent to the intrusion. We noted that the test was performed in a reasonable manner, as the motorist's "blood was taken by a physician in a hospital environment according to accepted medical practices." Id. at 384 U. S. 771. We said also that the intrusion occasioned by a blood test is not significant, since such"tests are a commonplace in these days of periodic physical examinations, and experience with them teaches that the quantity of blood extracted is minimal, and that, for most people, the procedure involves virtually no risk, trauma, or pain."Ibid. Schmerber thus confirmed"society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's privacy and bodily integrity."Winston v. Lee, 470 U.S. at 470 U. S. 762. See also South Dakota v. Neville, 459 U. S. 553, 563 (1983) ("The simple blood-alcohol test is . . . safe, painless, and commonplace"); Breithaupt v. Abram, 352 U. S. 432, 352 U. S. 436 (1957) ("The blood test procedure has become routine in our everyday life").The breath tests authorized by Subpart D of the regulations are even less intrusive than the blood tests prescribed by Subpart C. Unlike blood tests, breath tests do not require piercing the skin, and may be conducted safely outside a hospital environment and with a minimum of inconvenience or embarrassment. Further, breath tests reveal the level of alcohol in the employee's bloodstream, and nothing more. Page 489 U. S. 626 Like the blood testing procedures mandated by Subpart C, which can be used only to ascertain the presence of alcohol or controlled substances in the bloodstream, breath tests reveal no other facts in which the employee has a substantial privacy interest. Cf. United States v. Jacobsen, 466 U.S. at 466 U. S. 123; United States v. Place, 462 U.S. at 462 U. S. 707. In all the circumstances, we cannot conclude that the administration of a breath test implicates significant privacy concerns.A more difficult question is presented by urine tests. Like breath tests, urine tests are not invasive of the body and, under the regulations, may not be used as an occasion for inquiring into private facts unrelated to alcohol or drug use. [Footnote 7] We recognize, however, that the procedures for collecting the necessary samples, which require employees to perform an excretory function traditionally shielded by great privacy, raise concerns not implicated by blood or breath tests. While we would not characterize these additional privacy concerns as minimal in most contexts, we note that the regulations endeavor to reduce the intrusiveness of the collection process. The regulations do not require that samples be furnished under the direct observation of a monitor, despite the desirability of such a procedure to ensure the integrity of the sample. See 50 Fed.Reg. 31555 (1985). See also Field Manual B-15, D-l. The sample is also collected in a medical environment, by personnel unrelated to the railroad Page 489 U. S. 627 employer, and is thus not unlike similar procedures encountered often in the context of a regular physical examination.More importantly, the expectations of privacy of covered employees are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees. This relation between safety and employee fitness was recognized by Congress when it enacted the Hours of Service Act in 1907, Baltimore & Ohio R. Co. v. ICC, 221 U.S. at 221 U. S. 619, and also when it authorized the Secretary to"test . . . railroad facilities, equipment, rolling stock, operations, or persons, as he deems necessary to carry out the provisions"of the Federal Railroad Safety Act of 1970. 45 U.S.C. § 437(a) (emphasis added). It has also been recognized by state governments, [Footnote 8] and has long been reflected in industry practice, as evidenced by the industry's promulgation and enforcement of Rule G. Indeed, the FRA found, and the Court of Appeals acknowledged, see 839 F.2d at 585, that "most railroads require periodic physical examinations for train and engine employees and certain other employees." 49 Fed.Reg. 24278 (1984). See also Railway Labor Executives Assn. v. Norfolk & Western R. Co., 833 F.2d 700, 705-706 (CA7 1987); Brotherhood of Maintenance of Page 489 U. S. 628 Way Employees, Lodge 16 v. Burlington Northern R. Co., 802 F.2d 1016, 1024 (CA8 1986).We do not suggest, of course, that the interest in bodily security enjoyed by those employed in a regulated industry must always be considered minimal. Here, however, the covered employees have long been a principal focus of regulatory concern. As the dissenting judge below noted:"The reason is obvious. An idle locomotive, sitting in the roundhouse, is harmless. It becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs."839 F.2d at 593. Though some of the privacy interests implicated by the toxicological testing at issue reasonably might be viewed as significant in other contexts, logic and history show that a diminished expectation of privacy attaches to information relating to the physical condition of covered employees and to this reasonable means of procuring such information. We conclude, therefore, that the testing procedures contemplated by Subparts C and D pose only limited threats to the justifiable expectations of privacy of covered employees.By contrast, the Government interest in testing without a showing of individualized suspicion is compelling. Employees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences. Much like persons who have routine access to dangerous nuclear power facilities, see, e.g., Rushton v. Nebraska Public Power Dist., 844 F.2d 562, 566 (CA8 1988); Alverado v. Washington Public Power Supply System, 111 Wash. 2d 424, 436, 759 P.2d 427, 433-434 (1988), cert. pending, No. 88-645, employees who are subject to testing under the FRA regulations can cause great human loss before any signs of impairment become noticeable to supervisors or others. An impaired employee, the FRA found, will seldom display any outward "signs detectable by the lay person or, in many cases, even the physician." 50 Fed.Reg. 31526 (1985). This view finds Page 489 U. S. 629 ample support in the railroad industry's experience with Rule G, and in the judgment of the courts that have examined analogous testing schemes. See, e.g., Brotherhood of Maintenance Way Employees, Lodge 16 v. Burlington Northern R. Co., supra, at 1020. Indeed, while respondents posit that impaired employees might be detected without alcohol or drug testing, [Footnote 9] the premise of respondents' lawsuit is that even the occurrence of a major calamity will not give rise to a suspicion of impairment with respect to any particular employee.While no procedure can identify all impaired employees with ease and perfect accuracy, the FRA regulations supply an effective means of deterring employees engaged in safety-sensitive tasks from using controlled substances or alcohol in the first place. 50 Fed.Reg. 31541 (1985). The railroad industry's experience with Rule G persuasively shows, and common sense confirms, that the customary dismissal sanction Page 489 U. S. 630 that threatens employees who use drugs or alcohol while on duty cannot serve as an effective deterrent unless violators know that they are likely to be discovered. By ensuring that employees in safety-sensitive positions know they will be tested upon the occurrence of a triggering event, the timing of which no employee can predict with certainty, the regulations significantly increase the deterrent effect of the administrative penalties associated with the prohibited conduct, cf. Griffin v. Wisconsin, 483 U.S. at 483 U. S. 876, concomitantly increasing the likelihood that employees will forgo using drugs or alcohol while subject to being called for duty.The testing procedures contemplated by Subpart C also help railroads obtain invaluable information about the causes of major accidents, see 50 Fed.Reg. 31541 (1985), and to take appropriate measures to safeguard the general public. Cf. Michigan v. Tyler, 436 U. S. 499, 436 U. S. 510 (1978) (noting that prompt investigation of the causes of a fire may uncover continuing dangers, and thereby prevent the fire's recurrence); Michigan v. Clifford, 464 U. S. 287, 464 U. S. 308 (1984) (REHNQUIST, J., dissenting) (same). Positive test results would point toward drug or alcohol impairment on the part of members of the crew as a possible cause of an accident, and may help to establish whether a particular accident, otherwise not drug-related, was made worse by the inability of impaired employees to respond appropriately. Negative test results would likewise furnish invaluable clues, for eliminating drug impairment as a potential cause or contributing factor would help establish the significance of equipment failure, inadequate training, or other potential causes, and suggest a more thorough examination of these alternatives. Tests performed following the rule violations specified in Subpart D likewise can provide valuable information respecting the causes of those transgressions, which the FRA found to involve "the potential for a serious train accident or grave personal injury, or both." 50 Fed.Reg. 31553 (1985). Page 489 U. S. 631A requirement of particularized suspicion of drug or alcohol use would seriously impede an employer's ability to obtain this information, despite its obvious importance. Experience confirms the FRA's judgment that the scene of a serious rail accident is chaotic. Investigators who arrive at the scene shortly after a major accident has occurred may find it difficult to determine which members of a train crew contributed to its occurrence. Obtaining evidence that might give rise to the suspicion that a particular employee is impaired, a difficult endeavor in the best of circumstances, is most impracticable in the aftermath of a serious accident. While events following the rule violations that activate the testing authority of Subpart D may be less chaotic, objective indicia of impairment are absent in these instances as well. Indeed, any attempt to gather evidence relating to the possible impairment of particular employees likely would result in the loss or deterioration of the evidence furnished by the tests. Cf. Michigan v. Clifford, supra, at 464 U. S. 293, n. 4 (plurality opinion); Michigan v. Tyler, supra, at 436 U. S. 510. It would be unrealistic, and inimical to the Government's goal of ensuring safety in rail transportation, to require a showing of individualized suspicion in these circumstances.Without quarreling with the importance of these governmental interests, the Court of Appeals concluded that the post-accident testing regulations were unreasonable because"[b]lood and urine tests intended to establish drug use other than alcohol . . . cannot measure current drug intoxication or degree of impairment."839 F.2d at 588. The court based its conclusion on its reading of certain academic journals that indicate that the testing of urine can disclose only drug metabolites, which "may remain in the body for days or weeks after the ingestion of the drug." Id. at 589. We find this analysis flawed for several reasons.As we emphasized in New Jersey v. T.L.O.,"it is universally recognized that evidence, to be relevant to an inquiry, need not conclusively prove the ultimate fact in issue, but Page 489 U. S. 632 only have 'any tendency to make the existence of any fact that is of consequence to the determination [of the point in issue] more probable or less probable than it would be without the evidence.'"469 U.S. at 469 U. S. 345, quoting Fed.Rule Evid. 401. Even if urine test results disclosed nothing more specific than the recent use of controlled substances by a covered employee, this information would provide the basis for further investigative work designed to determine whether the employee used drugs at the relevant times. See Field Manual B-4. The record makes clear, for example, that a positive test result, coupled with known information concerning the pattern of elimination for the particular drug and information that may be gathered from other sources about the employee's activities, may allow the FRA to reach an informed judgment as to how a particular accident occurred. See supra at 489 U. S. 609-610.More importantly, the Court of Appeals overlooked the FRA's policy of placing principal reliance on the results of blood tests, which unquestionably can identify very recent drug use, see, e.g., 49 Fed.Reg. 24291 (1984), while relying on urine tests as a secondary source of information designed to guard against the possibility that certain drugs will be eliminated from the bloodstream before a blood sample can be obtained. The court also failed to recognize that the FRA regulations are designed not only to discern impairment, but also to deter it. Because the record indicates that blood and urine tests, taken together, are highly effective means of ascertaining on-the-job impairment and of deterring the use of drugs by railroad employees, we believe the Court of Appeals erred in concluding that the post-accident testing regulations are not reasonably related to the Government objectives that support them. [Footnote 10] Page 489 U. S. 633We conclude that the compelling Government interests served by the FRA's regulations would be significantly hindered if railroads were required to point to specific facts giving rise to a reasonable suspicion of impairment before testing a given employee. In view of our conclusion that, on the present record, the toxicological testing contemplated by the regulations is not an undue infringement on the justifiable expectations of privacy of covered employees, the Government's compelling interests outweigh privacy concerns.IVThe possession of unlawful drugs is a criminal offense that the Government may punish, but it is a separate and far more dangerous wrong to perform certain sensitive tasks while under the influence of those substances. Performing those tasks while impaired by alcohol is, of course, equally dangerous, though consumption of alcohol is legal in most other contexts. The Government may take all necessary and reasonable regulatory steps to prevent or deter that hazardous conduct, and since the gravamen of the evil is performing certain functions while concealing the substance in the body, it may be necessary, as in the case before us, to examine the body or its fluids to accomplish the regulatory purpose. The necessity to perform that regulatory function with respect to railroad employees engaged in safety-sensitive tasks, and the reasonableness of the system for doing so, have been established in this case.Alcohol and drug tests conducted in reliance on the authority of Subpart D cannot be viewed as private action outside the reach of the Fourth Amendment. Because the testing procedures mandated or authorized by Subparts C and D effect Page 489 U. S. 634 searches of the person, they must meet the Fourth Amendment's reasonableness requirement. In light of the limited discretion exercised by the railroad employers under the regulations, the surpassing safety interests served by toxicological tests in this context, and the diminished expectation of privacy that attaches to information pertaining to the fitness of covered employees, we believe that it is reasonable to conduct such tests in the absence of a warrant or reasonable suspicion that any particular employee may be impaired. We hold that the alcohol and drug tests contemplated by Subparts C and D of the FRA's regulations are reasonable within the meaning of the Fourth Amendment. The judgment of the Court of Appeals is accordingly reversed.It is so ordered

U.S. Supreme CourtSkinner v. Railway Lab. Execs. Ass'n, 489 U.S. 602 (1989)Skinner v. Railway Labor Executives' AssociationNo. 87-1555Argued November 2, 1988Decided March 21, 1989489 U.S. 602SyllabusUpon the basis of evidence indicating that alcohol and drug abuse by railroad employees had caused or contributed to a number of significant train accidents, the Federal Railroad Administration (FRA) promulgated regulations under petitioner Secretary of Transportation's statutory authority to adopt safety standards for the industry. Among other things, Subpart C of the regulations requires railroads to see that blood and urine tests of covered employees are conducted following certain major train accidents or incidents, while Subpart D authorizes, but does not require, railroads to administer breath or urine tests, or both, to covered employees who violate certain safety rules. Respondents, the Railway Labor Executives' Association and various of its member labor organizations, brought suit in the Federal District Court to enjoin the regulations. The court granted summary judgment for petitioners, concluding that the regulations did not violate the Fourth Amendment. The Court of Appeals reversed, ruling, inter alia, that a requirement of particularized suspicion is essential to a finding that toxicological testing of railroad employees is reasonable under the Fourth Amendment. The court stated that such a requirement would ensure that the tests, which reveal the presence of drug metabolites that may remain in the body for weeks following ingestion, are confined to the detection of current impairment.Held:1. The Fourth Amendment is applicable to the drug and alcohol testing mandated or authorized by the FRA regulations. Pp. 489 U. S. 613-618.(a) The tests in question cannot be viewed as private action outside the reach of the Fourth Amendment. A railroad that complies with Subpart C does so by compulsion of sovereign authority, and therefore must be viewed as an instrument or agent of the Government. Similarly, even though Subpart D does not compel railroads to test, it cannot be concluded, in the context of this facial challenge, that such testing will be primarily the result of private initiative, since specific features of the regulations combine to establish that the Government has actively encouraged, endorsed, and participated in the testing. Specifically, since Page 489 U. S. 603 the regulations preempt state laws covering the same subject matter, and are intended to supersede collective bargaining and arbitration award provisions, the Government has removed all legal barriers to the testing authorized by Subpart D. Moreover, by conferring upon the FRA the right to receive biological samples and test results procured by railroads, Subpart D makes plain a strong preference for testing and a governmental desire to share the fruits of such intrusions. In addition, the regulations mandate that railroads not bargain away their Subpart D testing authority, and provide that an employee who refuses to submit to such tests must be withdrawn from covered service. Pp. 489 U. S. 614-616.(b) The collection and subsequent analysis of the biological samples required or authorized by the regulations constitute searches of the person subject to the Fourth Amendment. This Court has long recognized that a compelled intrusion into the body for blood to be tested for alcohol content, and the ensuing chemical analysis, constitute searches. Similarly, subjecting a person to the breath test authorized by Subpart D must be deemed a search, since it requires the production of "deep lung" breath, and thereby implicates concerns about bodily integrity. Moreover, although the collection and testing of urine under the regulations do not entail any intrusion into the body, they nevertheless constitute searches, since they intrude upon expectations of privacy as to medical information and the act of urination that society has long recognized as reasonable. Even if the employer's antecedent interference with the employee's freedom of movement cannot be characterized as an independent Fourth Amendment seizure, any limitation on that freedom that is necessary to obtain the samples contemplated by the regulations must be considered in assessing the intrusiveness of the searches affected by the testing program. Pp. 489 U. S. 616-618.2. The drug and alcohol tests mandated or authorized by the FRA regulations are reasonable under the Fourth Amendment, even though there is no requirement of a warrant or a reasonable suspicion that any particular employee may be impaired, since, on the present record, the compelling governmental interests served by the regulations outweigh employees' privacy concerns. Pp. 489 U. S. 618-633.(a) The Government's interest in regulating the conduct of railroad employees engaged in safety-sensitive tasks in order to ensure the safety of the traveling public and of the employees themselves plainly justifies prohibiting such employees from using alcohol or drugs while on duty or on call for duty and the exercise of supervision to assure that the restrictions are in fact observed. That interest presents "special needs" beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements. Pp. 489 U. S. 618-621. Page 489 U. S. 604(b) Imposing a warrant requirement in the present context is not essential to render the intrusions at issue reasonable. Such a requirement would do little to further the purposes of a warrant, since both the circumstances justifying toxicological testing and the permissible limits of such intrusions are narrowly and specifically defined by the regulations, and doubtless are well known to covered employees, and since there are virtually no facts for a neutral magistrate to evaluate, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program. Moreover, imposing a warrant requirement would significantly hinder, and in many cases frustrate, the objectives of the testing program, since the delay necessary to procure a warrant could result in the destruction of valuable evidence, in that alcohol and drugs are eliminated from the bloodstream at a constant rate, and since the railroad supervisors who set the testing process in motion have little familiarity with the intricacies of Fourth Amendment jurisprudence. Pp. 489 U. S. 621-624.(c) Imposing an individualized suspicion requirement in the present context is not essential to render the intrusions at issue reasonable. The testing procedures contemplated by the regulations pose only limited threats to covered employees' justifiable privacy expectations, particularly since they participate in an industry subject to pervasive safety regulation by the Federal and State Governments. Moreover, because employees ordinarily consent to significant employer-imposed restrictions on their freedom of movement, any additional interference with that freedom that occurs in the time it takes to procure a sample from a railroad employee is minimal. Furthermore, Schmerber v. California, 384 U. S. 757, established that governmentally imposed blood tests do not constitute an unduly extensive imposition on an individual's privacy and bodily integrity, and the breath tests authorized by Subpart D are even less intrusive than blood tests. And, although urine tests require employees to perform an excretory function traditionally shielded by great privacy, the regulations reduce the intrusiveness of the collection process by requiring that samples be furnished in a medical environment, without direct observation. In contrast, the governmental interest in testing without a showing of individualized suspicion is compelling. A substance-impaired railroad employee in a safety-sensitive job can cause great human loss before any signs of the impairment become noticeable, and the regulations supply an effective means of deterring such employees from using drugs or alcohol by putting them on notice that they are likely to be discovered if an accident occurs. An individualized suspicion requirement would also impede railroads' ability to obtain valuable information about the causes of accidents or incidents and how to protect the public, since obtaining evidence giving rise to the suspicion Page 489 U. S. 605 that a particular employee is impaired is impracticable in the chaotic aftermath of an accident, when it is difficult to determine which employees contributed to the occurrence and objective indicia of impairment are absent. The Court of Appeals' conclusion that the regulations are unreasonable because the tests in question cannot measure current impairment is flawed. Even if urine test results disclosed nothing more specific than the recent use of controlled substances, this information would provide the basis for a further investigation, and might allow the FRA to reach an informed judgment as to how the particular accident occurred. More importantly, the court overlooked the FRA's policy of placing principal reliance on blood tests, which unquestionably can identify recent drug use, and failed to recognize that the regulations are designed not only to discern impairment, but to deter it. Pp. 489 U. S. 624-632.839 F.2d 575, reversed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined, and in all but portions of Part III of which STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 489 U. S. 634. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 489 U. S. 635 Page 489 U. S. 606

1991_90-681

under Rev. Stat. § 1979, 42 U. S. C. § 1983. 491 U. S., at 71. Petitioner takes this language to mean that § 1983 does not authorize suits against state officers for damages arising from official acts. We reject this reading of Will and hold that state officials sued in their individual capacities are "persons" for purposes of § 1983.IIn 1988, petitioner Barbara Hafer sought election to the post of auditor general of Pennsylvania. Respondents allege that during the campaign United States Attorney James West gave Hafer a list of 21 employees in the auditor general's office who secured their jobs through payments to a former employee of the office. App. 10. They further allege that Hafer publicly promised to fire all employees on the list if elected. Ibid.Hafer won the election. Shortly after becoming auditor general, she dismissed 18 employees, including named respondent James Melo, Jr., on the basis that they "bought" their jobs. Melo and seven other terminated employees sued Hafer and West in Federal District Court. They asserted state and federal claims, including a claim under § 1983, and sought monetary damages. Carl Gurley and the remaining respondents in this case also lost their jobs with the auditor general soon after Hafer took office. These respondents allege that Hafer discharged them because of their Democratic political affiliation and support for her opponent in the 1988 election. Id., at 28, 35, 40. They too filed suit against Hafer, seeking monetary damages and reinstatement under § 1983.After consolidating the Melo and Gurley actions, the District Court dismissed all claims. In relevant part, the court held that the § 1983 claims against Hafer were barred because, under Will, she could not be held liable for employment decisions made in her official capacity as auditor general.24The Court of Appeals for the Third Circuit reversed this portion of the District Court's decision. 912 F.2d 628 (1990). As to claims for reinstatement brought against Hafer in her official capacity, the court rested on our statement in Will that state officials sued for injunctive relief in their official capacities are "persons" subject to liability under § 1983. See Will, supra, at 71, n. 10. Turning to respondents' monetary claims, the court found that six members of the Gurley group had expressly sought damages from Hafer in her personal capacity. The remaining plaintiffs "although not as explicit, signified a similar intent." 912 F. 2d, at 636. * The court found this critical. While Hafer's power to hire and fire derived from her position as auditor general, it said, a suit for damages based on the exercise of this authority could be brought against Hafer in her personal capacity. Because Hafer acted under color of state law, respondents could maintain a § 1983 individual-capacity suit against her.We granted certiorari, 498 U. S. 1118 (1991), to address the question whether state officers may be held personally liable for damages under § 1983 based upon actions taken in their official capacities.*The Third Circuit looked to the proceedings below to determine whether certain respondents brought their claims for damages against Hafer in her official capacity or her personal capacity. 912 F. 2d, at 635636. Several other Courts of Appeals adhere to this practice. See Conner v. Reinhard, 847 F.2d 384, 394, n. 8 (CA7), cert. denied, 488 U. S. 856 (1988); Houston v. Reich, 932 F.2d 883, 885 (CAlO 1991); Lundgren v. McDaniel, 814 F.2d 600, 603-604 (CAll 1987). Still others impose a more rigid pleading requirement. See Wells v. Brown, 891 F.2d 591, 592 (CA6 1989) (§ 1983 plaintiff must specifically plead that suit for damages is brought against state official in individual capacity); Nix v. Norman, 879 F.2d 429, 431 (CA8 1989) (same). Because this issue is not properly before us, we simply reiterate the Third Circuit's view that "[i]t is obviously preferable for the plaintiff to be specific in the first instance to avoid any ambiguity." 912 F. 2d, at 636, n. 7. See this Court's Rule 14.1(a) ("Only the questions set forth in the petition, or fairly included therein, will be considered by the Court").25IIIn Kentucky v. Graham, 473 U. S. 159 (1985), the Court sought to eliminate lingering confusion about the distinction between personal- and official-capacity suits. We emphasized that official-capacity suits "'generally represent only another way of pleading an action against an entity of which an officer is an agent.''' Id., at 165 (quoting Monell v. New York City Dept. of Social Services, 436 U. S. 658, 690, n. 55 (1978)). Suits against state officials in their official capacity therefore should be treated as suits against the State. 473 U. S., at 166. Indeed, when officials sued in this capacity in federal court die or leave office, their successors automatically assume their roles in the litigation. See Fed. Rule Civ. Proc. 25(d)(1); Fed. Rule App. Proc. 43(c)(1); this Court's Rule 35.3. Because the real party in interest in an officialcapacity suit is the governmental entity and not the named official, "the entity's 'policy or custom' must have played a part in the violation of federal law." Graham, supra, at 166 (quoting Monell, supra, at 694). For the same reason, the only immunities available to the defendant in an officialcapacity action are those that the governmental entity possesses. 473 U. S., at 167.Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law. Thus, "[o]n the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Id., at 166. While the plaintiff in a personal-capacity suit need not establish a connection to governmental "policy or custom," officials sued in their personal capacities, unlike those sued in their official capacities, may assert personal immunity defenses such as objectively reasonable reliance on existing law. Id., at 166-167.Our decision in Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989), turned in part on these differences between26personal- and official-capacity actions. The principal issue in Will was whether States are "persons" subject to suit under § 1983. Section 1983 provides, in relevant part:"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured .... "The Court held that interpreting the words "[e]very person" to exclude the States accorded with the most natural reading of the law, with its legislative history, and with the rule that Congress must clearly state its intention to alter" 'the federal balance'" when it seeks to do so. Will, supra, at 65 (quoting United States v. Bass, 404 U. S. 336, 349 (1971)).The Court then addressed the related question whether state officials, sued for monetary relief in their official capacities, are persons under § 1983. We held that they are not. Although "state officials literally are persons," an officialcapacity suit against a state officer "is not a suit against the official but rather is a suit against the official's office. As such it is no different from a suit against the State itself." 491 U. S., at 71 (citation omitted).Summarizing our holding, we said: "[N]either a State nor its officials acting in their official capacities are 'persons' under § 1983." Ibid. Hafer relies on this recapitulation for the proposition that she may not be held personally liable under § 1983 for discharging respondents because she "act[ed]" in her official capacity as auditor general of Pennsylvania. Of course, the claims considered in Will were official-capacity claims; the phrase "acting in their official capacities" is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury. To the extent that Will27allows the construction Hafer suggests, however, we now eliminate that ambiguity.AWill itself makes clear that the distinction between officialcapacity suits and personal-capacity suits is more than "a mere pleading device." Ibid. State officers sued for damages in their official capacity are not "persons" for purposes of the suit because they assume the identity of the government that employs them. Ibid. By contrast, officers sued in their personal capacity come to court as individuals. A government official in the role of personal-capacity defendant thus fits comfortably within the statutory term "person." Cf. id., at 71, n. 10 ("[A] state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because 'official-capacity actions for prospective relief are not treated as actions against the State''') (quoting Graham, 473 U. S., at 167, n. 14).Hafer seeks to overcome the distinction between officialand personal-capacity suits by arguing that § 1983 liability turns not on the capacity in which state officials are sued, but on the capacity in which they acted when injuring the plaintiff. Under Will, she asserts, state officials may not be held liable in their personal capacity for actions they take in their official capacity. Although one Court of Appeals has endorsed this view, see Cowan v. University of Louisville School of Medicine, 900 F.2d 936, 942-943 (CA6 1990), we find it both unpersuasive as an interpretation of § 1983 and foreclosed by our prior decisions.Through § 1983, Congress sought "to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position." Monroe v. Pape, 365 U. S. 167, 172 (1961). Accordingly, it authorized suits to redress deprivations of civil rights by persons acting "under color of any [state] statute, ordinance, regulation, custom, or usage." 42 U. S. C. § 1983. The requirement of action under color of state law means that Hafer may be liable for28discharging respondents precisely because of her authority as auditor general. We cannot accept the novel proposition that this same official authority insulates Hafer from suit.In an effort to limit the scope of her argument, Hafer distinguishes between two categories of acts taken under color of state law: those outside the official's authority or not essential to the operation of state government, and those both within the official's authority and necessary to the performance of governmental functions. Only the former group, she asserts, can subject state officials to personal liability under § 1983; the latter group (including the employment decisions at issue in this case) should be considered acts of the State that cannot give rise to a personal-capacity action.The distinction Hafer urges finds no support in the broad language of § 1983. To the contrary, it ignores our holding that Congress enacted § 1983 "'to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.'" Scheuer v. Rhodes, 416 U. S. 232, 243 (1974) (quoting Monroe v. Pape, supra, at 171-172). Because of that intent, we have held that in § 1983 actions the statutory requirement of action "under color of" state law is just as broad as the Fourteenth Amendment's "state action" requirement. Lugar v. Edmondson Oil Co., 457 U. S. 922, 929 (1982).Furthermore, Hafer's distinction cannot be reconciled with our decisions regarding immunity of government officers otherwise personally liable for acts done in the course of their official duties. Her theory would absolutely immunize state officials from personal liability for acts within their authority and necessary to fulfilling governmental responsibilities. Yet our cases do not extend absolute immunity to all officers who engage in necessary official acts. Rather, immunity from suit under § 1983 is "predicated upon a considered inquiry into the immunity historically accorded the relevant29official at common law and the interests behind it," Imbler v. Pachtman, 424 U. S. 409, 421 (1976), and officials seeking absolute immunity must show that such immunity is justified for the governmental function at issue, Burns v. Reed, 500 U. S. 478, 486-487 (1991).This Court has refused to extend absolute immunity beyond a very limited class of officials, including the President of the United States, legislators carrying out their legislative functions, and judges carrying out their judicial functions, "whose special functions or constitutional status requires complete protection from suit." Harlow v. Fitzgerald, 457 U. S. 800, 807 (1982). State executive officials are not entitled to absolute immunity for their official actions. Scheuer v. Rhodes, supra. In several instances, moreover, we have concluded that no more than a qualified immunity attaches to administrative employment decisions, even if the same official has absolute immunity when performing other functions. See Forrester v. White, 484 U. S. 219 (1988) (dismissal of court employee by state judge); Harlow v. Fitzgerald, supra (discharge of Air Force employee, allegedly orchestrated by senior White House aides) (action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971)); Davis v. Passman, 442 U. S. 228 (1979) (dismissal of congressional aide) (Bivens action). That Hafer may assert personal immunity within the framework of these cases in no way supports her argument here.BHafer further asks us to read Will's language concerning suits against state officials as establishing the limits of liability under the Eleventh Amendment. She asserts that imposing personal liability on officeholders may infringe on state sovereignty by rendering government less effective; thus, she argues, the Eleventh Amendment forbids personalcapacity suits against state officials in federal court.30Most certainly, Will's holding does not rest directly on the Eleventh Amendment. Whereas the Eleventh Amendment bars suits in federal court "by private parties seeking to impose a liability which must be paid from public funds in the state treasury," Edelman v. Jordan, 415 U. S. 651, 663 (1974), Will arose from a suit in state court. We considered the Eleventh Amendment in Will only because the fact that Congress did not intend to override state immunity when it enacted § 1983 was relevant to statutory construction: "Given that a principal purpose behind the enactment of § 1983 was to provide a federal forum for civil rights claims," Congress' failure to authorize suits against States in federal courts suggested that it also did not intend to authorize such claims in state courts. 491 U. S., at 66.To the extent that Hafer argues from the Eleventh Amendment itself, she makes a claim that failed in Scheuer v. Rhodes, supra. In Scheuer, personal representatives of the estates of three students who died at Kent State University in May 1970 sought damages from the Governor of Ohio and other state officials. The District Court dismissed their complaints on the theory that the suits, although brought against state officials in their personal capacities, were in substance actions against the State of Ohio and therefore barred by the Eleventh Amendment.We rejected this view. "[S]ince Ex parte Young, 209 U. S. 123 (1908)," we said, "it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law." Scheuer, supra, at 237. While the doctrine of Ex parte Young does not apply where a plaintiff seeks damages from the public treasury, damages awards against individual defendants in federal courts "are a permissible remedy in some circumstances notwithstanding the fact that they hold public office." 416 U. S., at 238. That is, the Eleventh Amendment does not erect a barrier31against suits to impose "individual and personal liability" on state officials under § 1983. Ibid.To be sure, imposing personal liability on state officers may hamper their performance of public duties. But such concerns are properly addressed within the framework of our personal immunity jurisprudence. See Forrester v. White, supra, at 223. Insofar as respondents seek damages against Hafer personally, the Eleventh Amendment does not restrict their ability to sue in federal court.We hold that state officials, sued in their individual capacities, are "persons" within the meaning of § 1983. The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the "official" nature of their acts.The judgment of the Court of Appeals isAffirmed

OCTOBER TERM, 1991SyllabusHAFER v. MELO ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo.90-681. Argued October 15, 1991-Decided November 5,1991After petitioner Hafer, the newly elected auditor general of Pennsylvania, discharged respondents from their jobs in her office, they sued her for, inter alia, monetary damages under 42 U. S. C. § 1983. The District Court dismissed the latter claims under Will v. Michigan Dept. of State Police, 491 U. S. 58, 71, in which the Court held that state officials "acting in their official capacities" are outside the class of "persons" subject to liability under § 1983. In reversing this ruling, the Court of Appeals found that respondents sought damages from Hafer in her personal capacity and held that, because she acted under color of state law, respondents could maintain a § 1983 individual-capacity suit against her.Held: State officers may be held personally liable for damages under § 1983 based upon actions taken in their official capacities. pp. 25-31.(a) The above-quoted language from Will does not establish that Hafer may not be held personally liable under § 1983 because she "act[ed]" in her official capacity. The claims considered in Will were official-capacity claims, and the phrase "acting in their official capacities" is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury. Pp. 25-27.(b) State officials, sued in their individual capacities, are "persons" within the meaning of § 1983. Unlike official-capacity defendants-who are not "persons" because they assume the identity of the government that employs them, Will, supra, at 71-officers sued in their personal capacity come to the court as individuals and thus fit comfortably within the statutory term "person," cf. 491 U. S., at 71, n. 10. Moreover, § 1983's authorization of suits to redress deprivations of civil rights by persons acting "under color of" state law means that Hafer may be liable for discharging respondents precisely because of her authority as auditor general. Her assertion that acts that are both within the official's authority and necessary to the performance of governmental functions (including the employment decisions at issue) should be considered acts of the State that cannot give rise to a personal-capacity action is unpersuasive. That contention ignores this Court's holding that § 1983 was enacted to enforce provisions of the Fourteenth Amendment against those who carry a badge of a State and represent it in some capacity,22whether they act in accordance with their authority or misuse it. Scheuer v. Rhodes, 416 U. S. 232, 243. Furthermore, Hafer's theory would absolutely immunize state officials from personal liability under § 1983 solely by virtue of the "official" nature of their acts, in contravention of this Court's immunity decisions. See, e. g., Scheuer, supra. pp.27-29.(c) The Eleventh Amendment does not bar § 1983 personal-capacity suits against state officials in federal court. Id., at 237, 238. Will's language concerning suits against state officials cannot be read as establishing the limits of liability under the Amendment, since Will arose from a suit in state court and considered the Amendment only because the fact that Congress did not intend to override state immunity when it enacted § 1983 was relevant to statutory construction. 491 U. S., at 66. Although imposing personal liability on state officers may hamper their performance of public duties, such concerns are properly addressed within the framework of this Court's personal immunity jurisprudence. pp.29-31.912 F.2d 628, affirmed.O'CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except THOMAS, J., who took no part in the consideration or decision of the case.Jerome R. Richter argued the cause for petitioner. With him on the briefs was Goncer M. Krestal.William Goldstein argued the cause for respondents.With him on the brief was Edward H. Rubenstone. *JUSTICE O'CONNOR delivered the opinion of the Court.In Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989), we held that state officials "acting in their official capacities" are outside the class of "persons" subject to liability* Richard Ruda filed a brief for the National Association of Counties et al. as amici curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Andrew J. Pincus, John A. Powell, and Steven R. Shapiro; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Walter Kamiat, and Laurence Gold; for Kenneth W. Fultz by Cletus P. Lyman; and for Nancy Haberstroh by Stephen R. Kaplan.23Full Text of Opinion

1980_79-1429

JUSTICE BRENNAN delivered the opinion of the Court.Congress enacted the Occupational Safety and Health Act of 1970 (Act) "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions. . . ." § 2(b), 84 Stat. 1590, 29 U.S.C. § 651(b). The Act authorizes the Secretary of Labor to establish, after notice and opportunity to comment, mandatory nationwide standards governing health and safety in the workplace. 29 U.S.C. §§ 655(a), (b). In 1978, the Secretary, acting through the Occupational Safety and Health Administration Page 452 U. S. 494 (OSHA,) [Footnote 1] promulgated a standard limiting occupational exposure to cotton dust, an airborne particle byproduct of the preparation and manufacture of cotton products, exposure to which induces a "constellation of respiratory effects" known as "byssinosis." 43 Fed.Reg. 27352, col. 3 (1978). This disease was one of the expressly recognized health hazards that led to passage of the Act. S.Rep. No. 91-1282, p. 3 (1970), Legislative History of the Occupational Safety and Health Act of 1970, p. 143 (Comm. Print 1971) (Leg.Hist.).Petitioners in these consolidated cases, representing the interests of the cotton industry, [Footnote 2] challenged the validity of the "Cotton Dust Standard" in the Court of Appeals for the District of Columbia Circuit pursuant to § 6(f) of the Act, 29 U.S.C. § 65(f). They contend in this Court, as they did below, that the Act requires OSHA to demonstrate that its Standard reflects a reasonable relationship between the costs and benefits associated with the Standard. Respondents, the Secretary of Labor and two labor organizations, [Footnote 3] counter that Congress balanced the costs and benefits in the Act itself, and that the Act should therefore be construed not to require Page 452 U. S. 495 OSHA to do so. They interpret the Act as mandating that OSHA enact the most protective standard possible to eliminate a significant risk of material health impairment, subject to the constraints of economic and technological feasibility. The Court of Appeals held that the Act did not require OSHA to compare costs and benefits. AFL-CIO v. Marshall, 199 U.S.App.D.C. 54, 617 F.2d 636 (1979). We granted certiorari, 449 U.S. 817 (1980), to resolve this important question, which was presented but not decided in last Term's Industrial Union Dept. v. American Petroleum Institute, 448 U. S. 607 (1980), [Footnote 4] and to decide other issues related to the Cotton Dust Standard. [Footnote 5]IByssinosis, known in its more severe manifestations as "brown lung" disease, is a serious and potentially disabling respiratory disease primarily caused by the inhalation of cotton dust. [Footnote 6] See 43 Fed.Reg. 27352-27354 (1978); Exhibit Page 452 U. S. 496 6-16, App. 15-22. [Footnote 7] Byssinosis is a "continuum . . . disease," 43 Fed.Reg. 27354, col. 2 (1978), that has been categorized into four grades. [Footnote 8] In its least serious form, byssinosis produces both subjective symptoms, such as chest tightness, shortness of breath, coughing, and wheezing, and objective indications of loss of pulmonary functions. Id. at 27352, col. 2. In its most serious form, byssinosis is a chronic and irreversible obstructive pulmonary disease, clinically similar to chronic bronchitis or emphysema, and can be severely disabling. Ibid. At worst, as is true of other respiratory diseases, including bronchitis, emphysema, and asthma, byssinosis can create an additional strain on cardiovascular functions and can contribute to death from heart failure. See Exhibit 6-73, App. 72 ("there is an association between mortality and the extent of dust exposure"). One authority has described the increasing seriousness of byssinosis as follows:"In the first few years of exposure [to cotton dust], symptoms occur on Monday, or other days after absence Page 452 U. S. 497 from the work environment; later, symptoms occur on other days of the week; and eventually, symptoms are continuous, even in the absence of dust exposure."A. Bouhuys, Byssinosis in the United States, Exhibit 6-16, App. 15. [Footnote 9]While there is some uncertainty over the manner in which the disease progresses from its least serious to its disabling grades, it is likely that prolonged exposure contributes to the progression. 43 Fed.Reg. 27354, cols. 1 and 2 (1978); Exhibit Page 452 U. S. 498 6-27, App. 25; Exhibit 11, App. 152. It also appears that a worker may suddenly contract a severe grade without experiencing milder grades of the disease. Exhibit 41, App.192. [Footnote 10]Estimates indicate that at least 35,000 employed and retired cotton mill workers, or 1 in 12 such workers, suffer from the most disabling form of byssinosis. [Footnote 11] 43 Fed.Reg. 27353, col. 3 (1978); Exhibit 124, App. 347. The Senate Report accompanying the Act cited estimates that 100,000 active and retired workers suffer from some grade of the disease. S.Rep. No. 91-1282, p. 3 (1970), Leg.Hist. 143. One study found that over 25% of a sample of active cotton preparation and yarn manufacturing workers suffer at least some form of the disease at a dust exposure level common prior to adoption of the current Standard. 43 Fed.Reg. 27355, col. 3 (1978); Exhibit 6-51, App. 44. [Footnote 12] Other studies confirm these general findings on the prevalence of byssinosis. See, e.g., Ct. of App. J.A. 3683; Ex. 6-56, id. at 376-385.Not until the early 1960's was byssinosis recognized in the United States as a distinct occupational hazard associated with cotton mills. S.Rep. No. 91-1282, supra, at 3, Leg.Hist. Page 452 U. S. 499 142 [Footnote 13] In 1966, the American Conference of Governmental Industrial Hygienists (ACGIH), a private organization, recommended that exposure to total cotton dust [Footnote 14] be limited to a "threshold limit value" of 1,000 micrograms per cubic meter of air (1,000 �g/m^3) averaged over an 8-hour workday. See 43 Fed.Reg. 2731, col. 1 (1978). The United States Government first regulated exposure to cotton dust in 1968, when the Secretary of Labor, pursuant to the Walsh-Healey Act, 41 U.S.C. § 35(e), promulgated airborne contaminant threshold limit values, applicable to public contractors, that included the 1,000 �g/m^3 limit for total cotton dust. 34 Fed.Reg. 7953 (1969). [Footnote 15] Following passage of the Act in 1970, the 1,000 �g/m^3 standard was adopted as an "established Federal standard" under § 6(a) of the Act, 84 Stat. 1593, 29 U.S.C. § 65(a), a provision designed to guarantee immediate protection of workers for the period between enactment of the statute and promulgation of permanent standards. [Footnote 16]In 1974, ACGIH, adopting a new measurement unit of respirable, rather than total, dust, lowered its previous exposure Page 452 U. S. 500 limit recommendation to 200 �g/m^3 measured by a vertical elutriator, a device that measures cotton dust particles 15 microns or less in diameter. 43 Fed.Reg. 27351, col. 1, 27355, col. 2 (1978). [Footnote 17] That same year, the Director of the National Institute for Occupational Safety and Health (NIOSH), [Footnote 18] pursuant to the Act, 29 U.S.C. §§ 669(a)(3), 671 (d)(2), submitted to the Secretary of Labor a recommendation for a cotton dust standard with a permissible exposure limit (PEL) that "should be set at the lowest level feasible, but in no case at an environmental concentration as high as 0.2 mg lint-free cotton dust/cu m," or 200 �g/m^3 of lint-free respirable dust. [Footnote 19] Ex. 1, Ct. of App. J.A. 11; 41 Fed.Reg. 56500, col. 1 (1976). Several months later, OSHA published an Advance Notice of Proposed Rulemaking, 39 Fed.Reg. 44769 (1974), requesting comments from interested parties on the NIOSH recommendation and other related matters. Soon thereafter, the Textile Worker's Union Page 452 U. S. 501 of America, joined by the North Carolina Public Interest Research Group, petitioned the Secretary, urging a more stringent PEL of 100 �g/m^3.On December 28, 1976, OSHA published a proposal to replace the existing federal standard on cotton dust with a new permanent standard, pursuant to § 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5). 41 Fed.Reg. 56498. The proposed standard contained a PEL of 200 �g/m^3 of vertical elutriated lint-free respirable cotton dust for all segments of the cotton industry. Ibid. It also suggested an implementation strategy for achieving the PEL that relied on respirators for the short term and engineering controls for the long-term. Id. at 5656, cols. 2 and 3. OSHA invited interested parties to submit written comments within a 90-day period. [Footnote 20]Following the comment period, OSHA conducted three hearings in Washington, D.C., Greenville, Miss., and Lubbock, Tex., that lasted over 14 days. Public participation was widespread, involving representatives from industry and the workforce, scientists, economists, industrial hygienists, and many others. By the time the informal rulemaking procedure had terminated, OSHA had received 263 comments and 109 notices of intent to appear at the hearings. 43 Fed.Reg. 27351, col. 2 (1978). The voluminous record, composed of a transcript of written and oral testimony, exhibits, and posthearing comments and briefs, totaled some 105,000 pages. 199 U.S.App.D.C. at 65, 617 F.2d at 647. OSHA issued its final Cotton Dust Standard -- the one challenged in the instant case -- on June 23, 1978. Along with an accompanying statement of findings and reasons, the Standard occupied 69 pages of the Federal Register. 43 Fed.Reg. 2735-27418 (1978); see 29 CFR § 1910.1043 (1980).The Cotton Dust Standard promulgated by OSHA establishes Page 452 U. S. 502 mandatory PEL's over an 8-hour period of 200 �g/m^3 for yarn manufacturing, [Footnote 21] 750 g/m^3 for slashing and weaving operations, and 500 �g/m^3 for all other processes in the cotton industry. [Footnote 22] 29 CFR § 1910.1043(c) (1980). These levels represent a relaxation of the proposed PEL of 200 �g/m^3 for all segments of the cotton industry.OSHA chose an implementation strategy for the Standard that depended primarily on a mix of engineering controls, such as installation of ventilation systems, [Footnote 23] and work practice controls, such as special floor-sweeping procedures. Full compliance with the PEL's is required within four years, except to the extent that employers can establish that the engineering and work practice controls are infeasible. § 1910.1043(e)(1). During this compliance period, and at certain other Page 452 U. S. 503 times, the Standard requires employers to provide respirators to employees. 1910.1043(f). Other requirements include monitoring of cotton dust exposure, medical surveillance of all employees, annual medical examinations, employee education and training programs, and the posting of warning signs. A specific provision also under challenge in the instant case requires employers to transfer employees unable to wear respirators to another position, if available, having a dust level at or below the Standard's PEL's, with "no loss of earnings or other employment rights or benefits as a result of the transfer." § 1910.1043(f)(2)(v).On the basis of the evidence in the record as a whole, the Secretary determined that exposure to cotton dust represents a "significant health hazard to employees," 43 Fed.Reg. 27350, col. 1 (1978), and that "the prevalence of byssinosis should be significantly reduced" by the adoption of the Standard's PEL's, id. at 27359, col. 3. In assessing the health risks from cotton dust and the risk reduction obtained from lowered exposure, OSHA relied particularly on data showing a strong linear relationship between the prevalence of byssinosis and the concentration of lint-free respirable cotton dust. Id. at 27355-27359; Exhibit 6-51, App. 29-55. See also Ex. 6-17, Ct. of App. J.A. 235-245; Ex. 38D, id. at 1492-1839. Even at the 200 �g/m^3 PEL, OSHA found that the prevalence of at least Grade 1/1 byssinosis would be 137% of all employees in the yarn manufacturing sector. 43 Fed.Reg. 27359, cols. 2 and 3 (1978).In promulgating the Cotton Dust Standard, OSHA interpreted the Act to require adoption of the most stringent standard to protect against material health impairment, bounded only by technological and economic feasibility. Id. at 27361, col. 3. OSHA therefore rejected the industry's alternative proposal for a PEL of 500 �g/m^3 in yarn manufacturing, a proposal which would produce a 25% prevalence of at least Grade 1/2 byssinosis. The agency expressly found the Standard to be both technologically and economically feasible Page 452 U. S. 504 based on the evidence in the record as a whole. Although recognizing that permitted levels of exposure to cotton dust would still cause some byssinosis, OSHA nevertheless rejected the union proposal for a 100 �g/m^3 PEL because it was not within the "technological capabilities of the industry." Id. at 27359-27360. Similarly, OSHA set PEL's for some segments of the cotton industry at 500 �g/m^3 in part because of limitations of technological feasibility. Id. at 27361, col. 3. Finally, the Secretary found that "engineering dust controls in weaving may not be feasible even with massive expenditures by the industry," id. at 27360, col. 2, and, for that and other reasons, adopted a less stringent PEL of 750 �g/m^3 for weaving and slashing.The Court of Appeals upheld the Standard in all major respects. [Footnote 24] The court rejected the industry's claim that OSHA failed to consider its proposed alternative or give sufficient reasons for failing to adopt it. 199 U.S.App.D.C. at 70-72, 617 F.2d at 652-654. The court also held that the Standard was "reasonably necessary and appropriate" within the meaning of § 3(8) of the Act, 29 U.S.C. § 652(8), because of the risk of material health impairment caused by exposure to cotton dust. 199 U.S.App.D.C. at 72-73, and n. 83, 617 F.2d at 654-655, and n. 83. Rejecting the industry position that OSHA must demonstrate that the benefits of the Standard are proportionate to its costs, the court instead agreed with OSHA's interpretation that the Standard must protect employees against material health impairment, subject only to the limits of technological and economic feasibility. Id. at 80-84, 617 F.2d at 662-666. The court held that "Congress itself struck the balance between costs and Page 452 U. S. 505 benefits in the mandate to the agency" under § 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5), and that OSHA is powerless to circumvent that judgment by adopting less than the most protective feasible standard. 199 U.S.App.D.C. at 81, 617 F.2d at 663. Finally, the court held that the agency's determination of technological and economic feasibility was supported by substantial evidence in the record as a whole. Id. at 73-80, 617 F.2d at 655-662.We affirm in part, and vacate in part. [Footnote 25] Page 452 U. S. 506IIThe principal question presented in these cases is whether the Occupational Safety and Health Act requires the Secretary, in promulgating a standard pursuant to § 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5), to determine that the costs of the standard bear a reasonable relationship to its benefits. Relying on §§ 6(b)(5) and 3(8) of the Act, 29 U.S.C. §§ 655(b)(5) and 652(8), petitioner urge not only that OSHA must show that a standard addresses a significant risk of material health impairment, see Industrial Union, Dept. v. American Petroleum Institute, 448 U.S. at 448 U. S. 639 (plurality opinion), but also that OSHA must demonstrate that the reduction in risk of material health impairment is significant in light of the costs of attaining that reduction. See Brief for Petitioners in No. 79-1429, pp. 38-41. [Footnote 26] Respondents, Page 452 U. S. 507 on the other hand, contend that the Act requires OSHA to promulgate standards that eliminate or reduce such risks "to the extent such protection is technologically and economically feasible." Brief for Federal Respondent 38; Brief for Union Respondents 227. [Footnote 27] To resolve this debate, we must Page 452 U. S. 508 turn to the language, structure, and legislative history of the Act.AThe starting point of our analysis is the language of the statute itself. Steadman v. SEC, 450 U. S. 91, 450 U. S. 97 (1981); Reiter v. Sonotone Corp., 442 U. S. 330, 442 U. S. 337 (1979). Section 6(b)(5) of the Act, 29 U.S.C. § 655(b)(5) (emphasis added), provides:"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. [Footnote 28]"Although their interpretations differ, all parties agree that the phrase "to the extent feasible" contains the critical language in § 6(b)(5) for purposes of these cases.The plain meaning of the word "feasible" supports respondents' interpretation of the statute. According to Webster's Third New International Dictionary of the English Language 831 (1976), "feasible" means "capable of being Page 452 U. S. 509 done, executed, or effected." Accord, the Oxford English Dictionary 116 (1933) ("Capable of being done, accomplished or carried out"); Funk & Wagnalls New "Standard" Dictionary of the English Language 903 (1957) ("That may be done, performed or effected"). Thus, § 6(b)(5) directs the Secretary to issue the standard that "most adequately assures . . . that no employee will suffer material impairment of health," limited only by the extent to which this is "capable of being done." In effect, then, as the Court of Appeals held, Congress itself defined the basic relationship between costs and benefits by placing the "benefit" of worker health above all other considerations save those making attainment of this "benefit" unachievable. Any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than that struck by Congress would be inconsistent with the command set forth in § 6(b)(5). Thus, cost-benefit analysis by OSHA is not required by the statute, because feasibility analysis is. [Footnote 29] See Industrial Union Dept. v. American Petroleum Institute, 448 U.S. at 448 U. S. 718-719 (MARSHALL, J., dissenting). Page 452 U. S. 510When Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute. One early example is the Flood Control Act of 1936, 33 U.S.C. § 71:"[T]he Federal Government should improve or participate in the improvement of navigable waters or their tributaries, including watersheds thereof, for flood-control purposes if the benefits to whomsoever they may accrue are in excess of the estimated costs, and if the lives and social security of people are otherwise adversely affected."(Emphasis added.) A more recent example is the Outer Continental Shelf Lands Act Amendments of 1978, 43 U.S.C. § 1347(b) (1976 ed., Supp. III), providing that offshore drilling operations shall use"the best available and safest technologies which the Secretary determines to be economically feasible, wherever failure of equipment would have a significant effect on safety, health, or the environment, except where the Secretary determines that the incremental benefits are clearly insufficient to justify the incremental costs of using such technologies."These and other statutes [Footnote 30] demonstrate that Congress uses Page 452 U. S. 511 specific language when intending that an agency engage in cost-benefit analysis. See Industrial Union Dept. v. American Petroleum Institute, supra, at 448 U. S. 710, n. 27 (MARSHALL, J., dissenting). Certainly, in light of its ordinary meaning, the word "feasible" cannot be construed to articulate such congressional Page 452 U. S. 512 intent. We therefore reject the argument that Congress required cost-benefit analysis in § 6(b)(5).BEven though the plain language of § 6(b)(5) supports this construction, we must still decide whether § 3(8), the general definition of an occupational safety and health standard, either alone or in tandem with § 6(b)(5), incorporates a cost-benefit requirement for standards dealing with toxic materials or harmful physical agents. Section 3(8) of the Act, 29 U.S.C. § 652(8) (emphasis added), provides:"The term 'occupational safety and health standard' means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment."Taken alone, the phrase "reasonably necessary or appropriate" might be construed to contemplate some balancing of the costs and benefits of a standard. Petitioners urge that, so construed, § 3(8) engrafts a cost-benefit analysis requirement on the issuance of § 6(b)(5) standards, even if § 6(b)(5) itself does not authorize such analysis. We need not decide whether § 3(8), standing alone, would contemplate some form of cost-benefit analysis. For even if it does, Congress specifically chose in § 6(b)(5) to impose separate and additional requirements for issuance of a subcategory of occupational safety and health standards dealing with toxic materials and harmful physical agents: it required that those standards be issued to prevent material impairment of health to the extent feasible. Congress could reasonably have concluded that health standards should be subject to different criteria than safety standards because of the special problems presented in regulating them. See Industrial Union Dept. v. American Petroleum Institute, 448 U.S. at 448 U. S. 649, n. 54 (plurality opinion). Page 452 U. S. 513Agreement with petitioners' argument that § 3(8) imposes an additional and overriding requirement of cost-benefit analysis on the issuance of § 6(b)(5) standards would eviscerate the "to the extent feasible" requirement. Standards would inevitably be set at the level indicated by cost-benefit analysis, and not at the level specified by § 6(b)(5). For example, if cost-benefit analysis indicated a protective standard of 1,000 �g/m^3 PEL, while feasibility analysis indicated a 500 �g/m^3 PEL, the agency would be forced by the cost-benefit requirement to choose the less stringent point. [Footnote 31] We cannot believe that Congress intended the general terms of § 3(8) to countermand the specific feasibility requirement of § 6(b)(5). Adoption of petitioners' interpretation would effectively write § 6(b)(5) out of the Act. We decline to render Congress' decision to include a feasibility requirement nugatory, thereby offending the well-settled rule that all parts of a statute, if possible, are to be given effect. E.g., Reiter v. Sonotone Corp., 442 U.S. at 442 U. S. 339; Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U. S. 609, 412 U. S. 633-634 (1973); Jarecki v. G. D. Searle & Co., 367 U. S. 303, 367 U. S. 307-308 (1961). Congress did not contemplate any further balancing by the agency for toxic material and harmful physical agents standards, and we should not "impute to Congress a purpose to analyze with one hand what it sought to promote with the other.'" Weinberger v. Hynson, Westcott & Dunning, Inc., supra, at 412 U. S. 631, quoting Clark v. Uebersee Finanz-Korporation, 332 U. S. 480, 332 U. S. 489 (1947). [Footnote 32] Page 452 U. S. 514CThe legislative history of the Act, while concededly not crystal clear, provides general support for respondents' interpretation of the Act. The congressional Reports and debates certainly confirm that Congress meant "feasible," and nothing else, in using that term. Congress was concerned that the Act might be thought to require achievement of absolute safety, an impossible standard, and therefore insisted that health and safety goals be capable of economic and technological accomplishment. Perhaps most telling is the absence of any indication whatsoever that Congress intended OSHA to conduct its own cost-benefit analysis before promulgating a toxic material or harmful physical agent standard. The legislative history demonstrates conclusively that Congress was fully aware that the Act would impose real and substantial costs of compliance on industry, and believed that such costs were part of the cost of doing business. We thus turn to the relevant portions of the legislative history.Neither the original Senate bill, S. 2193, 91st Cong., 1st Sess. (1969), introduced by Senator Williams, nor the original House bill, H.R. 16785, 91st Cong., 2d Sess. (1970), introduced by Representative Daniels, included specific provisions Page 452 U. S. 515 controlling the issuance of standards governing toxic materials and harmful physical agents, Leg.Hist. 1, 6-7 (Williams bill); 721, 728-732 (Daniels bill), although both contained the definitional section enacted as § 3(8). [Footnote 33] The House Committee on Education and Labor, to which the Daniels bill was referred, reported out an amended bill that included the following section:"The Secretary, in promulgating standards under this subsection, shall set the standard which most adequately assures, on the basis of the best available professional evidence, that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy, even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life."H.R.Rep. No. 91-1291, p. 4 (1970) (to accompany H.R. 16785), Leg.Hist. 834.The Senate Committee on Labor and Public Welfare, reporting on the Williams bill, included a provision virtually identical to the House version, except for the additional requirement that the Secretary set the standard "which most adequately and feasibly assures . . . that no employee will suffer any impairment of health." Id. at 242 (the Senate provision was numbered § 6(b)(5)) (emphasis added). This addition to the Williams bill was offered by Senator Javits, who explained his amendment:"As a result of this amendment, the Secretary, in setting standards, is expressly required to consider feasibility of proposed standards. This is an improvement over the Daniels bill [as reported out of the House Committee], which might be interpreted to require absolute health and safety in all cases, regardless of feasibility, and the Administration bill, which contains no criteria for standards Page 452 U. S. 516 at all."S.Rep. No. 91-1282, p. 58 (1970), Leg.Hist.197 (emphasis added). [Footnote 34] Thus, the Senator's concern was that a standard might require "absolute health and safety" without any consideration as to whether such a condition was achievable. The full Senate Committee also noted that standards promulgated under this provision "shall represent feasible requirements," S.Rep. No. 91-1282, at 7, Leg.Hist. 147, and commented that "[s]uch standards should be directed at assuring, so far as possible, that no employee will suffer impaired health. . . ," ibid. (emphasis added). Page 452 U. S. 517The final amendments to this Senate provision, resulting in § 6(b)(5) of the Act, were proposed and adopted on the Senate floor after the Committee reported out the bill. Senator Dominick, who played a prominent role in this amendment process, see 116 Cong.Rec. 37631 (1970), Leg.Hist. 526 (comments of Sen. Javits); 116 Cong.Rec. at 37631, Leg.Hist. 527 (comments of Sen. Williams), continued to be concerned that the Act might be read to require absolute safety. He therefore proposed that the entire first sentence of § 6(b)(5) be struck, explaining:"This requirement is inherently confusing and unrealistic. It could be read to require the Secretary to ban all occupations in which there remains some risk of injury, impaired health, or life expectancy. In the case of all occupations, it will be impossible to eliminate all risks to safety and health. Thus, the present criteria could, if literally applied, close every business in this nation. In addition, in many cases, the standard which might most 'adequately' and 'feasibly' assure the elimination of the danger would be the prohibition of the occupation itself."Leg.Hist. 367 (comments of Sen. Dominick on his proposed amendment No. 1054) (emphasis in original).In the ensuing floor debate on this issue, Senator Dominick reiterated his concern that"[i]t is unrealistic to attempt as [the Committee's § 6(b)(5)] apparently does, to establish a utopia free from any hazards. Absolute safety is an impossibility. . . ."116 Cong.Rec. 37614 (1970), Leg.Hist. 480. [Footnote 35] The Senator concluded:"Any administrator responsible Page 452 U. S. 518 for enforcing the statute will be faced with an impossible choice. Either he must forbid employment in all occupations where there is any risk of injury, even if the technical state of the art could not remove the hazard, or he must ignore the mandate of Congress. . . ."116 Cong.Rec. at 37614, Leg.Hist. 48182.Senator Dominick failed in his efforts to have the first sentence of § 6(b)(5) deleted. However, after working with Senators Williams and Javits, he introduced an amended version of the first sentence which he thought was "agreeable to all" and which became § 6(b)(5) as it now appears in the Act. 116 Cong.Rec. at 37622, Leg.Hist. 502. This amendment limited the applicability of § 6(b)(5) to "toxic materials and harmful physical agents," changed "health impairment" to "material impairment of health," and deleted the reference to "diminished life expectancy." Significantly, the feasibility requirement was left intact in the statute. Instead of the phrase "which most adequately and feasibly assures," the amendment merely substituted "which most adequately assures, to the extent feasible," to emphasize that the feasibility requirement operated as a limit on the promulgation of standards under § 6(b)(5).Senator Dominick believed that his modifications made clearer that attainment of an absolutely safe working environment could not be achieved through "prohibition of the occupation itself," Leg.Hist. 367, and that toxic material and harmful physical agent standards should not address frivolous harms that exist in every workplace. The feasibility requirement, along with the need for a "material impairment of health," were thus thought to satisfy these two concerns. He explained the effect of the amendment:"What we were trying to do in the bill -- unfortunately, Page 452 U. S. 519 we did not have the proper wording or the proper drafting -- was to say that, when we are dealing with toxic agents or physical agents, we ought to take such steps as are feasible and practical to provide an atmosphere within which a person's health or safety would not be affected. Unfortunately, we had language providing that anyone would be assured that no one would have a hazard. . . ."116 Cong.Rec. 37622 (1970), Leg.Hist. 502. Senator Williams added that the amendment"will provide a continued direction to the Secretary that he shall be required to set the standard which most adequately and, to the greatest extent feasible, assures"that no employee will suffer any material health impairment. 116 Cong.Rec. at 37622, Leg.Hist. 503. The Senate thereafter passed S. 2193. One week later, the House passed a substitute bill which failed to contain any substantive criteria for the issuance of health standards in place of its original bill. 116 Cong.Rec. at 38716-38717, Leg.Hist. 1094-1096. At the joint House-Senate Conference, however, the House conferees acceded to the Senate's version of § 6(b)(5). [Footnote 36]Not only does the legislative history confirm that Congress meant "feasible," rather than "cost-benefit," when it used the former term, but it also shows that Congress understood that Page 452 U. S. 520 the Act would create substantial costs for employers, yet intended to impose such costs when necessary to create a safe and healthful working environment. [Footnote 37] Congress viewed the costs of health and safety as a cost of doing business. Senator Yarborough, a co-sponsor of the Williams bill, stated "We know the costs would be put into consumer goods, but that is the price we should pay for the 80 million workers in America." 116 Cong.Rec. at 37345, Leg.Hist. 444. He asked:"One may well ask too expensive for whom? Is it too expensive for the company who, for lack of proper safety equipment, loses the services of its skilled employees? Is it too expensive for the employee who loses his hand or leg or eyesight? Is it too expensive for the widow trying to raise her children on meager allowance under workmen's compensation and social security? And what about the man -- a good hardworking man -- tied to a wheel chair or hospital bed for the rest of his life? That Page 452 U. S. 521 is what we are dealing with when we talk about industrial safety.""* * * *" "We are talking about people's lives, not the indifference of some cost accountants."116 Cong.Rec. at 37625, Leg.Hist. 510. Senator Eagleton commented that"[t]he costs that will be incurred by employers in meeting the standards of health and safety to be established under this bill are, in my view, reasonable and necessary costs of doing business."116 Cong.Rec. at 41764, Leg.Hist. 1150-1151 (emphasis added). [Footnote 38]Other Members of Congress voiced similar views. [Footnote 39] Nowhere is there any indication that Congress contemplated a different balancing by OSHA of the benefits of worker health and safety against the costs of achieving them. Indeed Congress thought that the financial costs of health and safety problems in the workplace were as large as or larger than the financial costs of eliminating these problems. In its statement Page 452 U. S. 522 of findings and declaration of purpose encompassed in the Act itself, Congress announced that"personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments."29 U.S.C. § 651(a). The Senate was well aware of the magnitude of these costs:"[T]he economic impact of industrial deaths and disability is staggering. Over $1.5 billion is wasted in lost wages, and the annual loss to the Gross National Product is estimated to be over $8 billion. Vast resources that could be available for productive use are siphoned off to pay workmen's compensation benefits and medical expenses."S.Rep. No. 91-1282, p. 2 (1970), Leg.Hist. 142. Senator Eagleton summarized:"Whether we, as individuals, are motivated by simple humanity or by simple economics, we can no longer permit profits to be dependent upon an unsafe or unhealthy worksite."116 Cong.Rec. 41764 (1970), Leg.Hist. 1150-1151.IIISection 6(f) of the Act provides that "[t]he determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole." 29 U.S.C. § 655(f). Petitioners contend that the Secretary's determination that the Cotton Dust Standard is "economically feasible" is not supported by substantial evidence in the record considered as a whole. In particular, they claim (1) that OSHA underestimated the financial costs necessary to meet the Standard's requirements; and(2) that OSHA incorrectly found that the Standard would not threaten the economic viability of the cotton industry.In statutes with provisions virtually identical to § 6(f) of the Act, we have defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, Page 452 U. S. 523 340 U. S. 474, 340 U. S. 477 (1951). The reviewing court must take into account contradictory evidence in the record, id. at 340 U. S. 487-488, but"the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence,"Consolo v. FMC, 383 U. S. 607, 383 U. S. 620 (1966). Since the Act places responsibility for determining substantial evidence questions in the courts of appeals, 29 U.S.C. § 655(f), we apply the familiar rule that"[t]his Court will intervene only in what ought to be the rare instance when the [substantial evidence] standard appears to have been misapprehended or grossly misapplied"by the court below. Universal Camera Corp. v. NLRB, supra, at 340 U. S. 491; see Mobil Oil Corp. v. FPC, 417 U. S. 283, 417 U. S. 292, 417 U. S. 310 (1974); FTC v. Standard Oil Co., 355 U. S. 396, 355 U. S. 400-401 (1958). Therefore, our inquiry is not to determine whether we, in the first instance, would find OSHA's findings supported by substantial evidence. Instead, we turn to OSHA's findings and the record upon which they were based to decide whether the Court of Appeals "misapprehended or grossly misapplied" the substantial evidence test.AOSHA derived its cost estimate for industry compliance with the Cotton Dust Standard after reviewing two financial analyses, one prepared by the Research Triangle Institute (RTI), an OSHA-contracted group, the other by industry representatives (Hocutt-Thomas). [Footnote 40] The agency carefully Page 452 U. S. 524 explored the assumptions and methodologies underlying the conclusions of each of these studies. From this exercise, the agency was able to build upon conclusions from each which it found reliable and explain its process for choosing its cost estimate. A brief summary of OSHA's treatment of the two studies follows.OSHA rejected RTI's cost estimate of $1.1 billion for textile industry engineering controls for three principal reasons. [Footnote 41] First, OSHA believed that RTI's estimate should be discounted by 30%, 43 Fed.Reg. 27372, col. 3 (1978), because that estimate was based on the assumption that engineering controls would be applied to all equipment in mills, including those processing pure synthetic fibers, even though cotton dust is not generated by such equipment. RTI had observed that "[e]xclusion of equipment processing man-made fibers only could reduce these costs by as much as 30 percent." Ex. 6-76, Ct. of App. J.A. 585. [Footnote 42] Since the Standard did not require controls on synthetics-only equipment, OSHA rejected RTI's assumption about application of controls to synthetics-only machines. 43 Fed.Reg. 27371, col. 3 (1978). Second, OSHA concluded that RTI"may have overestimated compliance costs, since some operations are already in compliance with the permissible exposure limit of the new standard."Id. at 27370, cols. 2 and 3. Evidence indicated that some Page 452 U. S. 525 mills had attained PEL's of 200 �g/m^3 or less, while others were below the 1,000 �g/m^3 total dust level. [Footnote 43] Therefore, OSHA disagreed with RTI's assumption that the industry had not reduced cotton dust exposure below the existing standard's 1,000 �g/m^3 total dust PEL. Id. at 27370, col. 3. Third, OSHA found that the RTI study suffered from lack of recent accurate industry data. Id. at 27373, col. 1; see Ex. 76, Ct. of App. J.A. 88; Ex. 16., id. at 1367, 1359.In light of these deficiencies in the RTI study, OSHA adopted the Hocutt-Thomas estimate for textile industry engineering controls of $543 million, [Footnote 44] emphasizing that, because it was based on the most recent industry data, it was more realistic than RTI's estimate. 43 Fed.Reg. 27373, col. 1 (1978). [Footnote 45] Nevertheless OSHA concluded that the Hocutt-Thomas Page 452 U. S. 526 estimate was overstated for four principal reasons. First, Hocutt-Thomas included costs of achieving the existing PEL of 1,000 �g/m^3, while OSHA thought it likely that compliance was more widespread, and that some mills had in fact achieved the final standard's PEL. Ibid.; see n 43, supra. [Footnote 46] Second, Hocutt-Thomas declined to make any allowance for the trend toward replacement of existing production machines with newer more productive equipment. [Footnote 47] Relying on this "[n]atural production tren[d]," 43 Fed.Reg. 27359, col. 1 (1978), OSHA concluded that fewer machines than estimated by Hocutt-Thomas would require retrofitting or other controls, Page 452 U. S. 527 id. at 27372, col. 3. Third, OSHA thought that Hocutt-Thomas failed to take into account development of new technologies likely to occur during the 4-year compliance period. Ibid. [Footnote 48] Fourth, OSHA believed that Hocutt-Thomas might have improperly included control costs for synthetics-only machines, ibid., an inclusion which could result in a 30% cost overestimate. [Footnote 49]Petitioners criticize OSHA's adopt.ion of the Hocutt-Thomas estimate, since that estimate was based on achievement of somewhat less stringent PEL's than those ultimately promulgated in the final Standard. [Footnote 50] Thus, even if the Hocutt-Thomas estimate was exaggerated, they assert that"only by the most remarkable coincidence would the amount of that overestimate be equal to the additional costs required to attain the far more stringent limits of the Standard OSHA actually adopted."Brief for Petitioners in No. 79-1429, p. 27; see Brief for Petitioner in No. 79-1583, pp. 14-15. The agency itself recognized the problem cited by petitioners, but found itself limited in the precision of its estimates by the Page 452 U. S. 528 industry's refusal to make more of its own data available. [Footnote 51] OSHA explained that, "in the absence of the [industry] survey data [of textile mills], OSHA cannot develop more accurate estimates of compliance costs." 43 Fed. Reg 27373, col. 1 (1978). Since § 6(b)(5) of the Act requires that the Secretary promulgate toxic material and harmful physical agent standards "on the basis of the best available evidence," 29 U.S.C. § 655(b)(5), and since OSHA could not obtain the more detailed confidential industry data it thought essential to further precision, we conclude that the agency acted reasonably in adopting the Hocutt-Thomas estimate. [Footnote 52] While Page 452 U. S. 529 a cost estimate based on the standard actually promulgated surely would be preferable, [Footnote 53] we decline to hold as a matter of law that its absence, under the circumstances, required the Court of Appeals to find that OSHA's determination was unsupported by substantial evidence. [Footnote 54]Therefore, whether or not in the first instance we would find the Secretary's conclusions supported by substantial evidence, we cannot say that the Court of Appeals in this case Page 452 U. S. 530 "misapprehended or grossly misapplied" the substantial evidence test when it found that "OSHA reasonably evaluated the cost estimates before it, considered criticisms of each, and selected suitable estimates of compliance costs." 199 U.S.App.D.C. at 79, 617 F.2d at 661 (footnote omitted).BAfter estimating the cost of compliance with the Cotton Dust Standard, OSHA analyzed whether it was "economically feasible" for the cotton industry to bear this cost. [Footnote 55] OSHA Page 452 U. S. 531 concluded that it was, finding that,"although some marginal employers may shut down, rather than comply, the industry as a whole will not be threatened by the capital requirements of the regulation."43 Fed.Reg. 27378, col. 2 (1978); see id. at 27379, col. 3 ("compliance with the standard is well within the financial capability of the covered industries"). In reaching this conclusion on the Standard's economic impact, OSHA made specific findings with respect to employment, energy consumption, capital financing availability, and profitability. Id. at 27377-27378. To support its findings, the agency relied primarily on RTI's comprehensive investigation of the Standard's economic impact. [Footnote 56]RTI evaluated the likely economic impact on the cotton industry and the United States' economy of OSHA's original proposed standard, an across-the-board 200 �g/m^3 PEL. Ex. 6-76, Ct. of App. J.A. 626. [Footnote 57] RTI had estimated a total Page 452 U. S. 532 compliance cost of $2.7 billion for a 200 �g/m^3 PEL, [Footnote 58] and used this estimate in assessing the economic impact of such a standard. Id. at 736-737. As described in n. 44 supra, OSHA estimated total compliance costs of $656.5 million for the final Cotton Dust Standard, [Footnote 59] a standard less stringent than the across-the-board 200 �g/m^3 PEL of the proposed standard. Therefore, the agency found that the economic impact of its Standard would be "much less severe" than that suggested by RTI for a 200 �g/m^3 PEL estimate of $2.7 billion. 43 Fed.Reg. 27378, col. 2 (1978). Nevertheless, it is instructive to review RTI's conclusions with respect to the economic impact of a $2.7 billion cost estimate. RTI found:"Implementation of the proposed [200 �g/m^3] standard will require adjustments within the cotton textile industry that will take time to work themselves out and that may be difficult for many firms. In time, however, prices may be expected to rise and markets to adjust so that revenues will cover costs. Although the impact on any one firm cannot be specified in advance, nothing in the RTI study indicates that the cotton textile industry as a whole will be seriously threatened by the impact of the proposed standard for control of cotton dust exposure."Ex. 16, Ct. of App. J.A. 1380; id. at 3620. In reaching this conclusion, RTI analyzed the total and annual economic impact [Footnote 60] on each of the different sectors of the cotton industry. Page 452 U. S. 533For example, in yarn production (opening through spinning), RTI found that the total additional capital requirement per dollar of industry shipment was 7.8 cents, and that the corresponding annual requirement was 1.9 cents. Ex. 676, id. at 729. Average price increases necessary to maintain pre-standard rates of return on investment were estimated to range from 0.22 cents to 6.25 cents per dollar of industry sales. [Footnote 61] Ibid. Even assuming no price increases, only one of the six yarn-producing operations would experience a negative rate of return on investment, while the five other rates of return would range from l.4% to 3.9%. Id. at 652. [Footnote 62] Page 452 U. S. 534 RTI estimated the average pre-standard rate of return for the yarn-producing sector as 4.1%. Ibid.Through an output demand elasticity analysis, RTI determined that price increases necessitated by the 200 �g/m^3 standard would result in a. 1.68% contraction of cotton yarn consumption. [Footnote 63] Id. at 685; see id. at 680-687. RTI also discussed the effects of such price increases on interfiber and domestic/foreign competition. RTI observed that "non-price factors have probably dominated" the competition between cotton and man-made fibers. Id. at 623, 948-953. [Footnote 64] Noting that international trade agreements restricting foreign imports of textile products "have tended to smother the effects of a small change in the relative prices of domestic versus foreign textile products," id. at 622, RTI concluded that such small Page 452 U. S. 535 changes have had "very little impact" on domestic industries and markets, id. at 961; see id. at 95961. In order to measure the ability of different sized textile companies to finance compliance costs, RTI constructed a ratio of capital requirements to profit after taxes. RTI found that two of the six yarn production operations would have financing difficulties, but that such difficulties decreased as company size increased. Id. at 730. [Footnote 65] Finally, impacts on energy costs, employment, inflation, and market structure were evaluated. See id. at 72731. [Footnote 66]Relying on its comprehensive economic evaluation of the cotton industry's ability to absorb the $2.7 billion compliance cost of a 200 �g/m^3 PEL standard, RTI concluded that "nothing in the RTI study indicates that the cotton textile industry as a whole will be seriously threatened." Ex. 16, id. at 1380. [Footnote 67] Therefore, it follows a fortiori that OSHA's Page 452 U. S. 536 estimated compliance cost of $656.6 million is "economically feasible." [Footnote 68] Even if OSHA's estimate was understated, we are fortified in observing that RTI found that a standard more than four times as costly was nevertheless economically feasible.The Court of Appeals found that the agency "explained the economic impact it projected for the textile industry," and that OSHA has "substantial support in the record for its . . . findings of economic feasibility for the textile industry." 199 U.S.App.D.C. at 80, 617 F.2d at 662. On the basis of the whole record, we cannot conclude that the Court of Appeals "misapprehended or grossly misapplied" the substantial evidence test.IVThe final Cotton Dust Standard places heavy reliance on the use of respirators to protect employees from exposure to cotton dust, particularly during the 4-year interim period necessary to install and implement feasible engineering controls. [Footnote 69] One part of the respirator provision requires the Page 452 U. S. 537 employer to give employees unable to wear a respirator [Footnote 70] the opportunity to transfer to another position, if available, where the dust level meets the Standard's PEL. 2 CFR § 1910.1043(f)(2)(v) (1980). When such a transfer occurs, the employer must guarantee that the employee suffers no loss of earnings or other employment rights or benefits. [Footnote 71] Petitioners do not object to the transfer provision, but challenge OSHA's authority under the Act to require employers to guarantee employees' wage and employment benefits following the transfer. The Court of Appeals held that OSHA has such authority. 199 U.S.App.D.C. at 93, 617 F.2d at 675. We hold that, whether or not OSHA has this underlying authority, the agency has failed to make the necessary determination or statement of reasons that its wage guarantee Page 452 U. S. 538 requirement is related to the achievement of a safe and healthful work environment.Respondents urge several statutory bases for the authority exercised here. They cite § 2(b) of the Act, 29 U.S.C. § 651(b), which declares that the purpose of the Act is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions"; § 2(b)(5), which suggests achievement of the purpose "by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems"; § 6(b)(5), which requires the agency to "set the standard which most adequately assures . . . that no employee will suffer material impairment of health or functional capacity . . ."; and § 3(8), which provides that a standard must require"conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment."Brief for Federal Respondent 68. Whatever methods these provisions authorize OSHA to apply, it is clear that such methods must be justified on the basis of their relation to safety or health.Section 6(f) of the Act, 29 U.S.C. 655(f), requires that "determinations of the Secretary" must be supported by substantial evidence. Section 6(e), 29 U.S.C. 655(e), requires the Secretary to include "a statement of the reasons for such action, which shall be published in the Federal Register." In his "Summary and Explanation of the Standard," the Secretary stated:"Each section includes an analysis of the record evidence and the policy considerations underlying the decisions adopted pertaining to specific provisions of the standard."43 Fed.Reg. 27380, col. 2 (1978). But OSHA never explained the wage guarantee provision as an approach designed to contribute to increased health protection. Instead the agency stated that the "goal of this provision is to minimize any adverse economic impact on the employee by virtue of the inability to wear a respirator." Id. at 27387, Page 452 U. S. 539 col. 3. Perhaps in recognition of this fact, respondents in their briefs argue:"Experience under the Act has shown hat employees are reluctant to disclose symptoms of disease and tend to minimize work-related health problems for fear of being discharged or transferred to a lower paying job. . . . It may reasonably be expected, therefore, that many employees incapable of using respirators would continue to breathe unhealthful air rather than request a transfer, thus destroying the utility of the respirator program."Brief for Federal Respondent 67. See Brief for Union Respondents 51. [Footnote 72]Whether these arguments have merit, and they very well may, [Footnote 73] the post hoc rationalizations of the agency or the parties to this litigation cannot serve as a sufficient predicate for agency action. See Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 401 U. S. 419 (1971); Burlington Truck Lines v. United States, 371 U. S. 156, 371 U. S. 168-169 (1962); SEC v. Page 452 U. S. 540 Chenery Corp., 318 U. S. 80, 318 U. S. 87 (1943). For Congress gave OSHA the responsibility to protect worker health and safety, and to explain its reasons for its actions. Because the Act in no way authorizes OSHA to repair general unfairness to employees that is unrelated to achievement of health and safety goals, we conclude that OSHA acted beyond statutory authority when it issued the wage guarantee regulation. [Footnote 74]VWhen Congress passed the Occupational Safety and Health Act in 1970, it chose to place preeminent value on assuring employees a safe and healthful working environment, limited only by the feasibility of achieving such an environment. We must measure the validity of the Secretary's actions against the requirements of that Act. For "[t]he judicial function does not extend to substantive revision of regulatory Page 452 U. S. 541 policy. That function lies elsewhere -- in Congressional and Executive oversight or amendatory legislation." Industrial Union Dept. v. American Petroleum Institute, 448 U.S. at 448 U. S. 663 (BURGER, C.J., concurring); see TVA v. Hill, 437 U. S. 153, 437 U. S. 185, 437 U. S. 187-188, 437 U. S. 194-195 (1978). [Footnote 75]Accordingly, the judgment of the Court of Appeals is affirmed in all respects except to the extent of its approval of the Secretary's application of the wage guarantee provision of the Cotton Dust Standard at 29 CFR § 1910.1043(f)(2)(v) (1980). To that extent, the judgment of the Court of Appeals is vacated and the case remanded with directions to remand to the Secretary for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtAmerican Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490 (1981)American Textile Mfrs. Inst., Inc. v. DonovanNo. 79-1429Argued January 21, 1981Decided June 17, 1981*452 U.S. 490SyllabusSection 6(b)(5) of the Occupational Safety and Health Act of 1970 (Act) requires the Secretary of Labor (Secretary), in promulgating occupational safety and health standards dealing with toxic materials or harmful physical agents, to set the standard "which most adequately assures, to the extent feasible, on the basis of the best available evidence" that no employee will suffer material impairment of health. Section 3(8) of the Act defines the term "occupational safety and health standard" as meaning a standard which requires conditions, or the adoption or use of practices, means, methods, operations, or processes, "reasonably necessary or appropriate" to provide safe or healthful employment and places of employment. Section 6(f) of the Act provides that the Secretary's determinations "shall be conclusive if supported by substantial evidence in the record considered as a whole." The Secretary, acting through the Occupational Safety and Health Administration (OSHA), promulgated the so-called Cotton Dust Standard limiting occupational exposure to cotton dust (an airborne particle byproduct of the preparation and manufacture of cotton products), exposure to which induces byssinosis, a serious and potentially disabling respiratory disease known in its more severe manifestations as "brown lung" disease. Estimates indicate that at least 35,000 employed and retired cotton mill workers, or 1 in 12, suffer from the most disabling form of byssinosis, and 100,000 employed and retired workers suffer from some form of the disease. The Standard sets permissible exposure levels to cotton dust for the different operations in the cotton industry. Implementation of the Standard depends primarily on a mix of engineering controls, such as installation of ventilation systems, and work practice controls, such as special floor-sweeping procedures. During the 4-year interim period permitted for full compliance with the Standard, employers are required to provide respirators to employees and to transfer employees Page 452 U. S. 491 unable to wear respirators to another position, if available, having a dust level that meets the Standard's permissible exposure limit, with no loss of earnings or other employment rights or benefits. OSHA estimated the total industrywide cost of compliance as $656.5 million. Petitioners, representing the cotton industry, challenged the validity of the Standard in the Court of Appeals, contending, inter alia, that the Act requires OSHA to demonstrate that the Standard reflects a reasonable relationship between the costs and benefits associated with the Standard, that OSHA's determination of the Standard's "economic feasibility" was not supported by substantial evidence, and that the wage guarantee requirement was beyond OSHA's authority. The Court of Appeals upheld the Standard in all major respects. It held that the Act did not require OSHA to compare costs and benefits; that Congress itself balanced the costs and benefits in its mandate to OSHA under § 6(b)(5) to adopt the most protective feasible standard; and that OSHA's determination of economic feasibility was supported by substantial evidence in the record as a whole. The court also held that OSHA had authority to require employers to guarantee employees' wage and employment benefits following transfer because of inability to wear a respirator.Held:1. Cost-benefit analysis by OSHA in promulgating a standard under 6(b)(5) is not required by the Act because feasibility analysis is. Pp. 452 U. S. 506-522.(a) The plain meaning of the word "feasible" is "capable of being done," and, thus, § 6(b)(5) directs the Secretary to issue the standard that most adequately assures that no employee will suffer material impairment of health, limited only by the extent to which this is "capable of being done." In effect then, as the Court of Appeals held, Congress itself defined the basic relationship between costs and benefits by placing the "benefit" of the worker's health above all other considerations save those making attainment of this "benefit" unachievable. Any standard based on a balancing of costs and benefits by the Secretary that strikes a different balance than that struck by Congress would be inconsistent with the command set forth in § 6(b)(5). Pp. 452 U. S. 508-512.(b) Section 3(8), either alone or in tandem with § 6(b)(5), does not incorporate a cost-benefit requirement for standards dealing with toxic materials or harmful physical agents. Even if the phrase "reasonably necessary or appropriate" in § 3(8) might be construed to contemplate some balancing of costs and benefits, Congress specifically chose in § 6(b)(5) to impose separate and additional requirements for issuance of standards dealing with such materials and agents: it required that those standards be issued to prevent material health impairment Page 452 U. S. 492 to the extent feasible. To interpret § 3(8) as imposing an additional and overriding cost-benefit analysis requirement on the issuance of § 6(b)(5) standards would eviscerate § 6(b)(5)'s "to the extent feasible" requirement. Pp. 452 U. S. 512-513.(c) The Act's legislative history supports the conclusion that Congress itself, in § 6(b)(5), balanced the costs and benefits. There is no indication whatsoever that Congress intended OSHA to conduct its own cost-benefit analysis before promulgating a "toxic material" or "harmful physical agent" standard. Rather, not only does the history confirm that Congress meant "feasible," rather than "cost-benefit," when it used the former term, but it also shows that Congress understood that the Act would create substantial costs for employers, yet intended to impose such costs when necessary to create a safe and healthful working environment. Pp. 452 U. S. 514-522.2. Whether or not, in the first instance, this Court would find OSHA's findings supported by substantial evidence, it cannot be said that the Court of Appeals, on the basis of the whole record, "misapprehended or grossly misapplied" the substantial evidence test when it upheld such findings. Pp. 452 U. S. 522-536.3. Whether or not OSHA has the underlying authority to promulgate a wage guarantee requirement with respect to employees who are transferred to another position when they are unable to wear a respirator, OSHA failed to make the necessary determination or statement of reasons that this requirement was related to achievement of health and safety goals. Pp. 452 U. S. 536-540.199 U.S. App.D.C. 54, 617 F.2d 636, affirmed in part, vacated in part, and remanded.BRENNAN, .J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. STEWART, J., filed a dissenting opinion, post p 452 U. S. 541. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 452 U. S. 543. POWELL, J., took no part in the decision of the cases. Page 452 U. S. 493

1974_73-1288

MARSHALL, J., filed a dissenting opinion in which BRENNAN, STEWART, and BLACKMUN, JJ., joined, post, p. 425 U. S. 715.MR. JUSTICE WHITE delivered the opinion of the Court. *The issue in this case is whether the failure of respondents to return to petitioner Alfred Dunhill of London, Inc. (Dunhill), funds mistakenly paid by Dunhill for cigars that had been sold to Dunhill by certain expropriated Cuban cigar businesses was an "act of state" by Cuba precluding an affirmative judgment against respondents.IThe rather involved factual and legal context in which this litigation arises is fully set out in the District Court's Page 425 U. S. 685 opinion in this case, Menendez v. Faber, Coe & Greg, Inc., 345 F. Supp. 527 (SDNY 1972), and in closely related litigation, F. Palicio y Compania, S.A. v. Brush, 256 F. Supp. 481 (SDNY 1966), aff'd, 375 F.2d 1011 (CA2), cert. denied, 389 U.S. 830 (1967). For present purposes, the following recitation will suffice. In 1960, the Cuban Government confiscated the business and assets of the five leading manufacturers of Havana cigars. These companies, three corporations and two partnerships, were organized under Cuban law. Virtually all of their owners were Cuban nationals. None was American. These companies sold large quantities of cigars to customers in other countries, including the United States, where the three principal importers were Dunhill, Saks & Co. (Saks), and Faber, Coe & Gregg, Inc. (Faber). The Cuban Government named "interventors" to take possession of and operate the business of the seized Cuban concerns. Interventors continued to ship cigars to foreign purchasers, including the United States importers.This litigation began when the former owners of the Cuban companies, most of whom had fled to the United States, brought various actions against the three American importers for trademark infringement and for the purchase price of any cigars that had been shipped to importers from the seized Cuban plants and that bore United States trademarks claimed by the former owners to be their property. Following the conclusion of the related litigation in F. Palicio y Compania, S.A. v. Brush, supra, [Footnote 1] the Cuban interventors [Footnote 2] and the Republic Page 425 U. S. 686 of Cuba were allowed to intervene in these actions, which were consolidated for trial. Both the former owners and the interventors had asserted their right to some $700,000 due from the three importers for post-intervention shipments: Faber, $582,588.86; Dunhill, $92,949.70; and Saks, $24,250. It also developed that as of the date of intervention, the three importers owed sums totaling $477,200 for cigars shipped prior to intervention: Faber, $322,000; Dunhill, $148,600; and Saks, $6,600. These latter sums the importers had paid to interventors subsequent to intervention on the assumption that interventors were entitled to collect the accounts receivable of the intervened businesses. The former owners claimed title to and demanded payment of these accounts.Based on the "act of state" doctrine which had been reaffirmed in Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 (1964), the District Court held in F. Palicio y Compania, S.A. v. Brush, supra, and here, that it was required to give full legal effect to the 1960 confiscation of the five cigar companies insofar as it purported to take the property of Cuban nationals located within Cuba. Interventors were accordingly entitled to collect from the importers all amounts due and unpaid with respect to shipments made after the date of intervention. The contrary conclusion was reached as to the accounts owing at the time of intervention: because the United States Page 425 U. S. 687 courts will not give effect to foreign government confiscations without compensation of property located in the United States and because, under Republic of Iraq v. First Nat. City Bank, 353 F.2d 47 (CA2 1965), cert. denied, 382 U.S. 1027 (1966), the situs of the accounts receivable was with the importer-debtors, the 1960 seizures did not reach the pre-intervention accounts, and the former owners, rather than the interventors, were entitled to collect them from the importers even though the latter had already paid them to interventors in the mistaken belief that they were fully discharging trade debts in the ordinary course of their business.This conclusion brought to the fore the importers' claim that their payment of the pre-intervention accounts had been made in error and that they were entitled to recover these payments from interventors by way of setoff and counterclaim. Although their position that the 1960 confiscation entitled them to the sums due for pre-intervention sales had been rejected and the District Court had ruled that they "had no right to receive or retain such payment," [Footnote 3] interventors claimed those payments on the additional ground that the obligation, if any, to repay was a quasi-contractual debt having a situs in Cuba and that their refusal to honor the obligation was an act of state not subject to question in our courts. The District Court rejected this position for two reasons. First, the repayment obligated was more properly deemed situated in the United States, and hence remained unaffected by any purported confiscatory act of the Cuban Government. Second, in the District Court's Page 425 U. S. 688 view, nothing had occurred which qualified for recognition as an act of state:"[T]here was no formal repudiation of these obligations by Cuban Government decree of general application or otherwise. . . . Here, all that occurred was a statement by counsel for the interventors, during trial, that the Cuban Government and the interventors denied liability and had refused to make repayment. This statement was made after the interventors had invoked the jurisdiction of this Court in order to pursue their claims against the importers for post-intervention shipments. It is hard to conceive how, if such a statement can be elevated to the status of an act of state, any refusal by any state to honor any obligation at any time could be considered anything else."345 F. Supp. at 545. The importers were accordingly held entitled to set off their mistaken payments to interventors for pre-intervention shipments against the amounts due from them for their post-intervention purchases. Faber and Saks, because they owed more than interventors were obligated to return to them, were satisfied completely by the right to setoff. But Dunhill -- and at last we arrive at the issue in this case -- was entitled to more from interventors -- $148,000 -- than it owed for post-intervention shipments -- $93,000 -- and to be made whole, asked for and was granted judgment against interventors for the full amount of its claim, from which would be deducted the smaller judgment entered against it.The Court of Appeals, Menendez v. Saks & Co., 485 F.2d 1355 (CA2 1973), agreed that the former owners were entitled to recover from the importers the full amount of pre-intervention accounts receivable. It also held that the mistaken payments by importers to interventors Page 425 U. S. 689 gave rise to a quasi-contractual obligation to repay these sums. But, contrary to the District Court, the Court of Appeals was of the view that the obligation to repay had a situs in Cuba, and had been repudiated in the course of litigation by conduct that was sufficiently official to be deemed an act of state:"[I]n the absence of evidence that the interventors were not acting within the scope of their authority as agents of the Cuban government, their repudiation was an act of state even though not embodied in a formal decree. [Footnote 4]"Id. at 1371. Although the repudiation of the interventors' obligation was considered an act of state, the Court of Appeals went on to hold that First Nat. City Bank v. Banco Nacional de Cuba, 406 U. S. 759 (1972), entitled importers to recover the sums due them from interventors by way of setoff against the amounts due from them for post-intervention shipments. The act of state doctrine was said to bar the affirmative judgment awarded Dunhill to the extent that its claim exceeded its debt. The judgment of the District Court was reversed in this respect, and it is this action which was the subject of the petition for certiorari filed by Dunhill. In granting the petition, 416 U.S. 981 (1974), we requested the parties to address certain questions, [Footnote 5] the first being whether the statement by Page 425 U. S. 690 counsel for the Republic of Cuba that Dunhill's unjust enrichment claim would not be honored constituted an act of state. The case was argued twice in this Court. We have now concluded that nothing in the record reveals an act of state with respect to interventors' obligation to return monies mistakenly paid to them. Accordingly we reverse the judgment of the Court of Appeals.IIThe District Court and the Court of Appeals held that, for purposes of this litigation interventors were not entitled to the pre-intervention accounts receivable by virtue of the 1960 confiscation and that, despite other arguments to the contrary, nothing based on their claim to those accounts entitled interventors to retain monies mistakenly paid on those accounts by importers. We do not disturb these conclusions. [Footnote 6] The Court of Appeals nevertheless observed that interventors had "ignored" demands for the return of the monies and had "fail[ed] Page 425 U. S. 691 to honor the importers' demand (which was confirmed by the Cuban government's counsel at trial)." This conduct was considered to be "the Cuban government's repudiation of its obligation to return the funds" and to constitute an act of state not subject to question in our courts. [Footnote 7] Menendez v. Saks & Co., 485 F.2d at 1369, 1371. We cannot agree.If interventors, having had their liability adjudicated and various defenses rejected, including the claimed act of state, with respect to pre-intervention accounts, represented by the Cuban confiscation in 1960, were nevertheless to escape repayment by claiming a second and later act of state involving the funds mistakenly paid them, it was their burden to prove that act. Concededly, they declined to pay over the funds; but refusal to repay does not necessarily assert anything more than what interventors had claimed from the outset and what they have continued to claim in this Court that the pre-intervention accounts receivable were theirs and that they had no obligation to return payments on those accounts. [Footnote 8] Neither does it demonstrate that, in addition Page 425 U. S. 692 to authority to operate commercial businesses, to pay their bills and to collect their accounts receivable, interventors had been invested with sovereign authority to Page 425 U. S. 693 repudiate all or any part of the debts incurred by those businesses. Indeed, it is difficult to believe that they had the power selectively to refuse payment of legitimate debts arising from the operation of those commercial enterprises.In The "Gul Djemal," 264 U. S. 90 (194), a supplier libeled and caused the arrest of the Gul Djemal, a steamship owned and operated for commercial purposes by the Turkish Government, in an effort to recover for supplies and services sold to and performed for the ship. The ship's master, "a duly commissioned officer of the Turkish Navy," id. at 264 U. S. 94-95, appeared in court and asserted sovereign immunity, claiming that such an assertion defeated the court's jurisdiction. A direct appeal was taken to this Court, where it was held that the master's assertion of sovereign immunity was insufficient because his mere representation of his government as master of a commercial ship furnished no basis for assuming he was entitled to represent the sovereign in other capacities. [Footnote 9] Here there is no more reason to suppose that the interventors possess governmental, as opposed to commercial, authority than there was to suppose that the master of the Gul Djemal possessed such authority. The master of the Gul Djemal claimed the authority to assert sovereign immunity while the interventors claim that they Page 425 U. S. 694 had the authority to commit an act of state, but the difference is unimportant. In both cases, a party claimed to have had the authority to exercise sovereign power. In both, the only authority shown is commercial authority.We thus disagree with the Court of Appeals that the mere refusal of the interventors to repay funds followed by a failure to prove that interventors "were not acting within the scope of their authority as agents of the Cuban government" satisfied respondents' burden of establishing their act of state defense. Menendez v. Saks & Co., 485 F.2d at 1371. Nor do we consider Underhill v. Hernandez, 168 U. S. 25 (1897), heavily relied upon by the Court of Appeals, to require a contrary conclusion. [Footnote 10] In that case, and in Oetjen v. Central Leather Co., 246 U. S. 297 (1918), and Ricaud v. American Metal Co., 246 U. S. 304 (1918), it was apparently concluded that the facts were sufficient to demonstrate that the conduct in question was the public act of those with authority to exercise sovereign powers and was entitled to respect in our courts. We draw no such conclusion from the facts of the case before us now. As the District Court found, the only evidence of an act of state other than the act of nonpayment by interventors was"a statement by counsel for the interventors, during trial, that the Cuban Government and the interventors denied liability and had refused to make repayment."Menendez v. Faber, Coe & Gregg, Inc., 345 F. Supp. at 545. But this merely restated respondents' Page 425 U. S. 695 original legal position and adds little, if anything, to the proof of an act of state. No statute, decree, order, or resolution of the Cuban Government itself was offered in evidence indicating that Cuba had repudiated its obligations in general or any class thereof or that it had, as a sovereign matter, determined to confiscate the amounts due three foreign importers.IIIIf we assume with the Court of Appeals that the Cuban Government itself had purported to exercise sovereign power to confiscate the mistaken payments belonging to three foreign creditors and to repudiate interventors' adjudicated obligation to return those funds, we are nevertheless persuaded by the arguments of petitioner and by those of the United States that the concept of an act of state should not be extended to include the repudiation of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities. Our cases have not yet gone so far, and we decline to expand their reach to the extent necessary to affirm the Court of Appeals.Distinguishing between the public and governmental acts of sovereign states, on the one hand, and their private and commercial acts, on the other, is not a novel approach. As the Court stated through Mr. Chief Justice Marshall long ago in Bank of the United States v. Planters' Bank of Georgia, 9 Wheat. 904, 22 U. S. 907 (1824):"It is, we think, a sound principle, that, when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with Page 425 U. S. 696 whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted."Cf. Sloan Shipyards v. United States Fleet Corp., 258 U. S. 549, 258 U. S. 567-568 (1922). In this same tradition, South Carolina v. United States, 199 U. S. 437 (1905), drew a line for purposes of tax immunity between the historically recognized governmental functions of a State and businesses engaged in by a State of the kind which theretofore had been pursued by private enterprise. Similarly, in Ohio v. Helvering, 292 U. S. 360, 292 U. S. 369 (1934), the Court said:"If a state chooses to go into the business of buying and selling commodities, its right to do so may be conceded so far as the Federal Constitution is concerned; but the exercise of the right is not the performance of a governmental function. . . . When a state enters the market place seeking customers it divests itself of its quasi sovereignty pro tanto, and takes on the character of a trader. . . ."It is thus a familiar concept that "there is a constitutional line between the State as government and the State as trader. . . ." New York v. United States, 326 U. S. 572, 326 U. S. 579 (1946). See also Parden v. Terminal R. Co., 377 U. S. 184, 377 U. S. 189-190 (1964); California v. Taylor, 353 U. S. 553, 353 U. S. 564 (1957); United States v. California, 297 U. S. 175, 297 U. S. 183 (1936).It is the position of the United States, stated in an amicus brief filed by the Solicitor General, that such a line should be drawn in defining the outer limits of the act of state concept, and that repudiations by a foreign sovereign of its commercial debts should not be considered to be acts of state beyond legal question in our courts. Attached to the brief of the United States and to this opinion as 425 U.S. 682app1|>Appendix 1 is the letter of November 26, 1975, in which the Department of State, speaking through its Legal Adviser agrees with the brief filed by the Solicitor General and, more specifically, declares that Page 425 U. S. 697"we do not believe that the Dunhill case raises an act of state question, because the case involves an act which is commercial, [Footnote 11] and not public, in nature. [Footnote 12]"The major underpinning of the act of state doctrine is the policy of foreclosing court adjudications involving the legality of acts of foreign states on their own soil that might embarrass the Executive Branch of our Government in the conduct of our foreign relations. Banco Nacional de Cuba v. Sabbatino, 376 U.S. at 376 U. S. 427-428, 376 U. S. 431-433. But based on the presently expressed views of those who conduct our relations with foreign countries, we are in no sense compelled to recognize as Page 425 U. S. 698 an act of state the purely commercial conduct of foreign governments in order to avoid embarrassing conflicts with the Executive Branch. On the contrary, for the reasons to which we now turn, we fear that embarrassment and conflict would more likely ensue if we were to require that the repudiation of a foreign government's debts arising from its operation of a purely commercial business be recognized as an act of state and immunized from question in our courts.Although it had other views in years gone by, in 1952, as evidenced by 425 U.S. 682app2|>Appendix 2 (the Tate letter) attached to this opinion, the United States abandoned the absolute theory of sovereign immunity and embraced the restrictive view under which immunity in our courts should be granted only with respect to causes of action arising out of a foreign state's public or governmental actions, and not with respect to those arising out of its commercial or proprietary actions. This has been the official policy of our Government since that time, as the attached letter of November 26, 1975, confirms:"Moreover, since 1952, the Department of State has adhered to the position that the commercial and private activities of foreign states do not give rise to sovereign immunity. Implicit in this position is a determination that adjudications of commercial liability against foreign states do not impede the conduct of foreign relations, and that such adjudications are consistent with international law on sovereign immunity."Repudiation of a commercial debt cannot, consistent with this restrictive approach to sovereign immunity, be treated as an act of state; for if it were, foreign governments, Page 425 U. S. 699 by merely repudiating the debt before or after its adjudication, would enjoy an immunity which our Government would not extend them under prevailing sovereign immunity principles in this country. This would undermine the policy supporting the restrictive view of immunity, which is to assure those engaging in commercial transactions with foreign sovereignties that their rights will be determined in the courts whenever possible.Although, at one time, this Court ordered sovereign immunity extended to a commercial vessel of a foreign country absent a suggestion of immunity from the Executive Branch, and although the policy of the United States with respect to its own merchant ships was then otherwise, Berizzi Bros. Co. v. S.S. Pesaro, 271 U. S. 562 (1926), the authority of that case has been severely diminished by later cases such as Ex parte Peru, 318 U. S. 578 (1943), and Mexico v. Hoffman, 324 U. S. 30 (1945). In the latter case, the Court unanimously denied immunity to a commercial ship owned but not possessed by the Mexican Government. The decision rested on the fact that the Mexican Government was not in possession, but the Court declared, id. at 324 U. S. 35-36:"Every judicial action exercising or relinquishing jurisdiction over the vessel of a foreign government has its effect upon our relations with that government. Hence it is a guiding principle, in determining whether a court should exercise or surrender its jurisdiction in such cases, that the courts should not so act as to embarrass the executive arm in its conduct of foreign affairs.""In such cases, the judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction.""United States v. Lee, supra, 209; Ex parte Peru, supra, 318 U. S. 588.""It is therefore not for the courts to deny an Page 425 U. S. 700 immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize. The judicial seizure of the property of a friendly state may be regarded as such an affront to its dignity, and may so affect our relations with it, that it is an accepted rule of substantive law governing the exercise of the jurisdiction of the courts that they accept and follow the executive determination that the vessel shall be treated as immune. Ex parte Peru, supra, 318 U. S. 588. But recognition by the courts of an immunity upon principles which the political department of government has not sanctioned may be equally embarrassing to it in securing the protection of our national interests and their recognition by other nations."(Footnote omitted.) In a footnote, the Court expressly questioned the Berizzi Bros. holding, [Footnote 13] and two concurring Justices asserted that the Court had effectively overruled that case. [Footnote 14] Page 425 U. S. 701Since that time, as we have said, the United States has adopted and adhered to the policy declining to extend sovereign immunity to the commercial dealings of Page 425 U. S. 702 foreign governments. It has based that policy in part on the fact that this approach has been accepted by a large and increasing number of foreign states in the international community; [Footnote 15] in part on the fact that the United States had already adopted a policy of consenting to be sued in foreign courts in connection with suits against its merchant vessels; and in part because the enormous increase in the extent to which foreign sovereigns had become involved in international trade made essential "a practice which will enable persons doing business with them to have their rights determined in the courts." 425 U.S. 682app2|>Appendix 2 to this opinion, infra at 425 U. S. 714. In the last 20 years, lower courts have concluded, in Page 425 U. S. 703 light of this Court's decisions in Ex parte Peru, supra, and Mexico v. Hoffman, supra, and from the Tate letter and the changed international environment, that Berizzi Bros. Co. v. S.S. Pesaro, supra, no longer correctly states the law; and they have declined to extend sovereign immunity to foreign sovereigns in cases arising out of purely commercial transactions. Victory Transport, Inc. v. Comisaria General, 336 F.2d 354 (CA2 1964), cert. denied, 381 U.S. 934 (1965); Petrol Shipping Corp. v. Kingdom of Greece, 360 F.2d 103 (CA2), cert. denied, 385 U.S. 931 (1966); Premier S.S. Co. v. Embassy of Algeria, 336 F. Supp. 507 (SDNY 1971); Ocean Transport Co. v. Government of Republic of Ivory Coast, 269 F. Supp. 703 (ED La.1967); ADM Milling Co. v. Republic of Bolivia, Civ.Action No. 75-946 (DC Aug. 8, 1975); Et Ve Balik Kurumu v. B.N.S. Int'l Sales Corp., 25 Misc.2d 299, 304 N.Y.S.2d 971 (1960); Harris & Co. Advtg., Inc. v. Republic of Cuba, 127 So. 2d 687 (Fla.Ct.App. 1961). Indeed, it is fair to say that the "restrictive theory" of sovereign immunity appears to be generally accepted as the prevailing law in this country. ALI, Restatement (Second), Foreign Relations Law of the United States, § 69 (1965).Participation by foreign sovereigns in the international commercial market has increased substantially in recent years. Cf. International Economic Report of the President 56 (1975). The potential injury to private businessmen -- and ultimately to international trade itself -- from a system in which some of the participants in the international market are not subject to the rule of law has therefore increased correspondingly. As noted above, courts of other countries have also recently adopted the restrictive theory of sovereign immunity. Of equal importance is the fact that subjecting foreign governments to the rule of law in their commercial dealings presents a much smaller risk of affronting their sovereignty than Page 425 U. S. 704 would an attempt to pass on the legality of their governmental acts. [Footnote 16] In their commercial capacities, foreign governments do not exercise powers peculiar to sovereigns. Instead, they exercise only those powers that can also be exercised by private citizens. Subjecting them in connection with such acts to the same rules of law that apply to private citizens is unlikely to touch very sharply on "national nerves." Moreover, as this Court has noted:"[T]he 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."Banco Nacional de Cuba v. Sabbatino, 376 U.S. at 376 U. S. 428. See also id. at 376 U. S. 430 n. 34. There may be little codification or consensus as to the rules of international law concerning exercises of governmental powers, including military powers and expropriations, within a sovereign state's borders affecting the property or persons of aliens. However, more discernible rules of international law have emerged with regard to the commercial dealings of private parties in the international market. [Footnote 17] The restrictive Page 425 U. S. 705 approach to sovereign immunity suggests that these established rules should be applied to the commercial transactions of sovereign states.Of course, sovereign immunity has not been pleaded in this case; but it is beyond cavil that part of the foreign relations law recognized by the United States is that the commercial obligations of a foreign government may be adjudicated in those courts otherwise having jurisdiction to enter such judgments. Nothing in our national policy calls on us to recognize as an act of state a repudiation by Cuba of an obligation adjudicated in our courts and arising out of the operation of a commercial business by one of its instrumentalities. For all the reasons which led the Executive Branch to adopt the restrictive theory of sovereign immunity, we hold that the mere assertion of sovereignty as a defense to a claim arising out of purely commercial acts by a foreign sovereign is no more effective if given the label "Act of State" than if it is given the label "sovereign immunity." [Footnote 18] Page 425 U. S. 706 In describing the act of state doctrine in the past, we have said that it"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."Banco Nacional de Cuba v. Sabbatino, supra at 376 U. S. 401 (emphasis added), and that it applies to "acts done within their own States, in the exercise of governmental authority." Underhill v. Hernandez, 168 U.S. at 168 U. S. 252 (emphasis added). We decline to extend the act of state doctrine to acts committed by foreign sovereigns in the course of their purely commercial operations. Because the act relied on by respondents in this case was an act arising out of the conduct by Cuba's agents in the operation of cigar business for profit, the act was not an act of state.Reversed

U.S. Supreme CourtAlfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976)Alfred Dunhill of London, Inc. v. Republic of CubaNo. 73-1288Argued December 10, 1974Reargued January 19, 1976Decided May 24, 1976425 U.S. 682SyllabusAfter the "intervention" (nationalization) by Cuba in 1960 of the business and assets of five leading cigar manufacturers, the former owners (most of whom had fled to the United States) brought actions against petitioner and two other importers for, inter alia, the purchase price of cigars that had been shipped to the importers from the seized Cuban plants. Following conclusion of related litigation, the Cuban "interventors" (those named to possess and occupy the seized businesses, one of whom, and Cuba, are the respondents herein) were allowed to join in those actions, which were consolidated for trial. Both the former owners and the interventors asserted their right to sums due from the three importers for post-intervention shipments. As of the date of intervention, the importers owed various amounts for pre-intervention shipments, which they later paid to the interventors, who the importers mistakenly believed were entitled to collect accounts receivable. The former owners also claimed title to and demanded payment of these accounts. The District Court, acknowledging that, under the "act of state" doctrine reaffirmed in Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, it had to give effect to the 1960 confiscation insofar as it purported to take the property of Cubans in Cuba, held that the interventors could collect all due and unpaid amounts for post-intervention shipments, but further held that the former owners were entitled to the pre-intervention accounts receivable, the situs of which was with the importer-debtors; and the former owners, rather than the interventors, were held entitled to collect those accounts from the importers, even though the latter had already mistakenly paid them to the interventors. The importers then claimed that they were entitled to recover the payments from the interventors by way of setoff or counterclaim. The interventors countered with the contention that any repayment obligation was a quasi-contractual debt whose situs was in Cuba, and that their refusal to pay was an act of state not subject to question in American courts. The District Page 425 U. S. 683 Court rejected the interventors' claim on the grounds that the repayment obligation was deemed situated in the United States, and that nothing had occurred qualifying for recognition as an act of state. The importers accordingly were allowed to set off their mistaken payments for pre-intervention shipments against the amounts they owed for post-intervention purchases. Since petitioner's claim against the interventors exceeded their claim against it, petitioner was awarded judgment against the interventors for the full amount of its claim, from which the smaller judgment against it would be deducted. The Court of Appeals, while agreeing with the District Court in other respects, held that the interventors' obligation to repay the importers was situated in Cuba, and that the interventors' counsel's repudiation of the obligation constituted an act of state. Nevertheless, relying on First Nat City Bank v. Banco Nacional de Cuba, 406 U. S. 759, the court held that enforcement of the importers' counterclaims was not barred up to the limits of the respective claims asserted against them by the interventors, but that the affirmative judgment awarded petitioner was barred by the act of state doctrine to the extent that petitioner's claim exceeded its debt. In this respect, the District Court's judgment was reversed, giving rise to the petition for certiorari in this case.Held: There is nothing in the record of this case revealing an act of state with respect to the interventors' obligation to return the sums mistakenly paid to them. Pp. 425 U. S. 690-695.(a) If the interventors, whose contentions, including the claimed act of state, with respect to the pre-intervention accounts, represented by the 1960 confiscation had been properly rejected by the courts below, were to escape repayment upon the basis of a second and later act of state involving the funds mistakenly paid to them, they had the burden of proving that act. P. 425 U. S. 691.(b) The interventors' refusal to repay the mistakenly paid funds does not constitute an act of state or indicate that the interventors had governmental, as opposed to merely commercial, authority for the refusal. The "Gul Djemal," 264 U. S. 90. Pp. 425 U. S. 691-694.(c) The interventors' counsel's statement during trial that the Cuban Government and the interventors denied liability and had refused to make repayment is no proof of an act of state, and no statute, decree, order, or resolution of the Cuban Government was offered in evidence indicating Cuban repudiation of its obligations in general or of the obligations herein involved. Pp. 425 U. S. 694-695.485 F.2d 1355, reversed. Page 425 U. S. 684WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and STEVENS (except for Part III), JJ., joined. POWELL, J., filed a concurring opinion, post, p. 715. STEVENS, J., filed a concurring statement, post, p. 425 U. S. 715. MARSHALL, J., filed a dissenting opinion in which BRENNAN, STEWART, and BLACKMUN, JJ., joined, post, p. 425 U. S. 715.

1988_87-826

JUSTICE MARSHALL delivered the opinion of the Court.In this appeal, we must decide whether a tax on interstate telecommunications imposed by the State of Illinois violates the Commerce Clause. We hold that it does not.IAThese cases come to us against a backdrop of massive technological and legal changes in the telecommunications industry. [Footnote 1] Years ago, all interstate telephone calls were relayed through electric wires and transferred by human operators working switchboards. Those days are past. Today, a computerized network of electronic paths transmits thousands of electronic signals per minute through a complex system of microwave radios, fiber optics, satellites and cables. DOJ Page 488 U. S. 255 Report 1.2-1.6, 1.8; Brief for MCI Telecommunications Corporation as Amicus Curiae 2. When fully connected, this network offers billions of paths from one point to another. DOJ Report 1.18. When a direct path is full or not working efficiently, the computer system instantly activates another path. Signals may even change paths in the middle of a telephone call without perceptible interruption. Brief for National Conference of State Legislatures et al. as Amici Curiae 6. Thus, the path taken by the electronic signals is often indirect, and typically bears no relation to state boundaries. [Footnote 2] The number of possible paths, the nature of the electronic signals, and the system of computerized switching make it virtually impossible to trace and record the actual paths taken by the electronic signals which create an individual telephone call.The explosion in new telecommunications technologies and the breakup of the AT&T monopoly [Footnote 3] has led a number of States to revise the taxes they impose on the telecommunications industry. [Footnote 4] In 1985, Illinois passed the Illinois Page 488 U. S. 256 Telecommunications Excise Tax Act (Tax Act), Ill.Rev.Stat., ch. 120, �� 2001-2021 (1987). The Tax Act imposes a 5% tax on the gross charge of interstate telecommunications (1) originated or terminated in Illinois, � 2004, § 4 (hereinafter § 4) [Footnote 5] and (2) charged to an Illinois service address, regardless of where the telephone call is billed or paid. � 2002, §§ 2(a) and (b). [Footnote 6] The Tax Act imposes an identical 5% tax on intrastate telecommunications. � 2004, § 3. In order to prevent "actual multi-state taxation," the Tax Act provides a credit to any taxpayer upon proof that the taxpayer has paid a tax in another State on the same telephone call which triggered the Illinois tax. � 2004, § 4. To facilitate collection, the Tax Act Page 488 U. S. 257 requires telecommunications retailers, like appellant GTE Sprint Communications Corporation (Sprint), to collect the tax from the consumer who charged the call to his service address. � 2005, § 5.AEight months after the Tax Act was passed, Jerome Goldberg and Robert McTigue, Illinois residents who are subject to and have paid telecommunications taxes through their retailers, filed a class action complaint in the Circuit Court of Cook County, Illinois. They named as defendants J. Thomas Johnson, Director of the Department of Revenue for the State of Illinois, (Director), [Footnote 7] and various long-distance telephone carriers, including Sprint. The complaint alleged that § 4 of the Tax Act violates the Commerce Clause of the United States Constitution. [Footnote 8] Sprint cross-claimed against the Director, seeking a declaration that the Tax Act is unconstitutional under the Commerce Clause. The Director then filed a motion for summary judgment against Sprint and the other long-distance carriers. Sprint responded with a motion for summary judgment against the Director; Goldberg and McTigue, in turn, filed their own motion for summary judgment against both the Director and Sprint.After briefing and a hearing, the trial court declared § 4 unconstitutional. It found that Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977), and its progeny, control this litigation. Under the four-pronged test originated in Complete Auto, a state tax will withstand scrutiny under the Commerce Clause if"the tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State. Page 488 U. S. 258 Id. at 430 U. S. 279. [Footnote 9] In the view of the trial court, the Tax Act did not satisfy the last three prongs of the Complete Auto test because:""Illinois is attempting to tax the entire cost of an interstate act which takes place only partially in Illinois. This tax by its own terms is not fairly apportioned. It discriminates against interstate commerce, and it is not related to services provided in Illinois. For all of these reasons, the Act must fail."Goldberg v. Johnson, No. 85 CH 8081 (Cook County, Oct. 21, 1986), App. to Juris. Statement in No. 87-826, p. 24a.The Illinois Supreme Court reversed, Goldberg v. Johnson, 117 Ill. 2d 493, 612 N.E.2d 1262 (1987) (per curiam), despite its finding that the tax is "not an apportioned tax" because it "applies to the entirety of each and every interstate telecommunication." Id. at 501, 512 N.E.2d at 1266. The court reasoned that an unapportioned tax is "constitutionally suspect" because of the risk of multiple taxation, ibid., but decided that the Tax Act adequately avoided this danger. With respect to interstate calls originating in Illinois, the court noted that no other State could levy a tax on such calls. Id. at 602, 512 N.E.2d at 1266. As for calls terminating in Illinois and charged to an Illinois service address, the court found that, even though the tax created "a real risk of multiple taxation," id. at 502, 512 N.E.2d at 1267, [Footnote 10] that risk was eliminated by § 4's credit provision. Id. at 503, 512 N.E.2d at 1267.As for discrimination, the third prong of the Complete Auto test, the court held that the Tax Act is constitutionally valid, since a 5% tax is imposed on intrastate as well as interstate Page 488 U. S. 259 telecommunications. Turning to the fourth prong, the court held that the tax is fairly related to services provided by Illinois. The court explained that Illinois provided services and other benefits with respect to that portion of an interstate call occurring within the State, and that"the benefits afforded by other States in facilitating the same interstate telecommunication are too speculative to override the substantial benefits extended by Illinois."Id. at 504, 512 N.E.2d at 1267.Having found that the Tax Act satisfied the requirements of Complete Auto, the Illinois Supreme Court concluded that it did not violate the Commerce Clause. Sprint, Goldberg, and McTigue appealed to this Court. We noted probable jurisdiction, 484 U.S. 1057 (1988), and now affirm.IIAThis Court has frequently had occasion to consider whether state taxes violate the Commerce Clause. The wavering doctrinal Lines of our pre-Complete Auto cases reflect the tension between two competing concepts: the view that interstate commerce enjoys a "free trade" immunity from state taxation and the view that businesses engaged in interstate commerce may be required to pay their own way. Complete Auto, supra, at 430 U. S. 278-279; see also American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 483 U. S. 281, 483 U. S. 282, nn. 12, 13 (1987); Commonwealth Edison Co. v. Montana, 453 U. S. 609, 453 U. S. 645 (1981) (BLACKMUN, J., dissenting). Complete Auto sought to resolve this tension by specifically rejecting the view that the States cannot tax interstate commerce, while at the same time placing limits on state taxation of interstate commerce. 430 U.S. at 430 U. S. 288; see also Commonwealth Edison Co., supra, at 453 U. S. 645. [Footnote 11] Since the Complete Auto decision, we have Page 488 U. S. 260 applied its four-pronged test on numerous occasions. [Footnote 12] We now apply it to the Illinois tax.BAs all parties agree that Illinois has a substantial nexus with the interstate telecommunications reached by the Tax Act, we begin our inquiry with apportionment, the second prong of the Complete Auto test. Appellants argue that the telecommunications tax is not fairly apportioned because Illinois taxes the gross charge of each telephone call. They interpret our prior cases, specifically Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157 (1954), Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653 (1948), and Western Live Stock v. Bureau of Revenue, 303 U. S. 250 (1938), to require Illinois to tax only a fraction of the gross charge of each telephone call based on the miles which the electronic signals traveled within Illinois as a portion of the total miles traveled. The Director, in turn, argues that Illinois apportions its telecommunications tax by carefully limiting the type of interstate telephone calls which it reaches.In analyzing these contentions, we are mindful that the central purpose behind the apportionment requirement is to Page 488 U. S. 261 ensure that each State taxes only its fair share of an interstate transaction. See, e.g., Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 463 U. S. 169 (1983). But "we have long held that the Constitution imposes no single [apportionment] formula on the States," id. at 463 U. S. 164, and therefore have declined to undertake the essentially legislative task of establishing a "single constitutionally mandated method of taxation." Id. at 463 U. S. 171; see also Moorman Mfg. Co. v. Bair, 437 U. S. 267, 437 U. S. 278-280 (1978). Instead, we determine whether a tax is fairly apportioned by examining whether it is internally and externally consistent. Scheiner, supra, at 483 U. S. 285; Armco Inc. v. Hardesty, 467 U. S. 638, 467 U. S. 644 (1984); Container Corp., supra, at 463 U. S. 169-170.To be internally consistent, a tax must be structured so that, if every State were to impose an identical tax, no multiple taxation would result. 463 U.S. at 463 U. S. 169. Thus, the internal consistency test focuses on the text of the challenged statute and hypothesizes a situation where other States have passed an identical statute. We conclude that the Tax Act is internally consistent, for if every State taxed only those interstate phone calls which are charged to an in-state service address, only one State would tax each interstate telephone call.Appellant Sprint argues that our decision in Armco dictates a different standard. It contends that, under Armco, a court evaluating the internal consistency of a challenged tax must also compare the tax to the similar, but not identical, taxes imposed by other States. Sprint misreads Armco. If we were to determine the internal consistency of one State's tax by comparing it with slightly different taxes imposed by other States, the validity of state taxes would turn solely on "the shifting complexities of the tax codes of 49 other States." Armco, supra, at 467 U. S. 645; see also Moorman, supra, at 437 U. S. 277, n. 12. In any event, to the extent that other States have passed tax statutes which create a risk of multiple taxation, Page 488 U. S. 262 we reach that issue under the external consistency test, to which we now turn.The external consistency test asks whether the State has taxed only that portion of the revenues from the interstate activity which reasonably reflects the in-state component of the activity being taxed. Container Corp., supra, at 463 U. S. 169-170. We thus examine the in-state business activity which triggers the taxable event and the practical or economic effect of the tax on that interstate activity. Appellants first contend that any tax assessed on the gross charge of an interstate activity cannot reasonably reflect in-state business activity, and therefore must be unapportioned. The Director argues that, because the Tax Act has the same economic effect as a sales tax, it can be based on the gross charge of the telephone call. See, e.g., McGoldrick v. Berwind-White Coal Mining Co., 309 U. S. 33, 309 U. S. 58 (1940) (sales tax); cf. D. H. Holmes Co. v. McNamara, 486 U. S. 24, 486 U. S. 31-32 (1988) (use tax); Tyler Pipe Industries, Inc. v. Washington Dept. of Revenue, 483 U. S. 232, 483 U. S. 251 (1987) (gross receipts).We believe that the Director has the better of this argument. The tax at issue has many of the characteristics of a sales tax. It is assessed on the individual consumer, collected by the retailer, and accompanies the retail purchase of an interstate telephone call. Even though such a retail purchase is not a purely local event, since it triggers simultaneous activity in several States, cf. McGoldrick, supra, at 309 U. S. 58, the Tax Act reasonably reflects the way that consumers purchase interstate telephone calls.The Director further contends that the Illinois telecommunications tax is fairly apportioned, because the Tax Act reaches only those interstate calls which are (1) originated or terminated in Illinois and (2) charged to an Illinois service address. Appellants Goldberg and McTigue, by contrast, raise the specter of many States assessing a tax on the gross charge of an interstate telephone call. Appellants have exaggerated the extent to which the Tax Act creates a risk of Page 488 U. S. 263 multiple taxation. We doubt that States through which the telephone call's electronic signals merely pass have a sufficient nexus to tax that call. See United Air Lines, Inc. v. Mahin, 410 U. S. 623, 410 U. S. 631 (1973) (State has no nexus to tax an airplane based solely on its flight over the State); Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 322 U. S. 302-304 (1944) (Jackson, J., concurring) (same). We also doubt that termination of an interstate telephone call, by itself, provides a substantial enough nexus for a State to tax a call. See National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U. S. 753 (1967) (receipt of mail provides insufficient nexus).We believe that only two States have a nexus substantial enough to tax a consumer's purchase of an interstate telephone call. The first is a State like Illinois which taxes the origination or termination of an interstate telephone call charged to a service address within that State. The second is a State which taxes the origination or termination of an interstate telephone call billed or paid within that State. See, e.g., Ark.Code Ann. § 26-62-301(3) (Supp.1987); Wash.Rev.Code § 82.04.065(2) (1987).We recognize that, if the service address and billing location of a taxpayer are in different States, some interstate telephone calls could be subject to multiple taxation. [Footnote 13] This Page 488 U. S. 264 limited possibility of multiple taxation, however, is not sufficient to invalidate the Illinois statutory scheme. See Container Corp., 463 U.S. at 463 U. S. 171; Moorman, 437 U.S. at 437 U. S. 272-273. To the extent that other States' telecommunications taxes pose a risk of multiple taxation, the credit provision contained in the Tax Act operates to avoid actual multiple taxation. D. H. Holmes, supra, at 486 U. S. 31 ("The . . . taxing scheme is fairly apportioned, for it provides a credit against its use tax for sales taxes that have been paid in other States"); see also Tyler Pipe, supra, at 483 U. S. 245, n. 13.It should not be overlooked, moreover, that the external consistency test is essentially a practical inquiry. In previous cases, we have endorsed apportionment formulas based upon the miles a bus, train, or truck traveled within the taxing State. [Footnote 14] But those cases all dealt with the movement of large physical objects over identifiable routes, where it was practicable to keep track of the distance actually traveled within the taxing State. See, e.g., Central Greyhound, 334 U.S. at 334 U. S. 663 ("There is no dispute as to feasibility in apportioning this tax"); see also Western Live Stock, 303 U.S. at 303 U. S. 257. These cases, by contrast, involve the more intangible movement of electronic impulses through computerized networks. An apportionment formula based on mileage or some other geographic division of individual telephone calls would produce insurmountable administrative and technological barriers. Page 488 U. S. 265 See Scheiner, 483 U.S. at 483 U. S. 296 (apportionment does not require State to adopt a tax which would "pose genuine administrative burdens"). [Footnote 15] We thus find it significant that Illinois' method of taxation is a realistic legislative solution to the technology of the present-day telecommunications industry. [Footnote 16]In sum, we hold that the Tax Act is fairly apportioned. Its economic effect is like that of a sales tax, the risk of multiple taxation is low, and actual multiple taxation is precluded by the credit provision. Moreover, we conclude that mileage or some other geographic division of individual telephone calls would be infeasible.CWe turn next to the third prong of the Complete Auto test, which prohibits a State from imposing a discriminatory tax on interstate commerce. Appellants argue that, irrespective of the identical 5% tax on the gross charge of intrastate telephone calls, the Tax Act discriminates against interstate commerce by allocating a larger share of the tax burden to interstate telephone calls. They rely on Scheiner, where we Page 488 U. S. 266 stated that,"[i]n its guarantee of a free trade area among the States, . . . the Commerce Clause has a deeper meaning that may be implicated even though state provisions . . . do not allocate tax burdens between insiders and outsiders in a manner that is facially discriminatory."Scheiner, supra at 483 U. S. 281.In Scheiner, we held that Pennsylvania's flat taxes on the operation of all trucks on Pennsylvania highways imposed a disproportionate burden on interstate trucks, as compared with intrastate trucks, because the interstate trucks traveled fewer miles per year on Pennsylvania highways. 483 U.S. at 483 U. S. 286. The Illinois tax differs from the flat taxes found discriminatory in Scheiner in two important ways. First, whereas Pennsylvania's flat taxes burdened out-of-state truckers who would have difficulty effecting legislative change, the economic burden of the Illinois telecommunications tax falls on the Illinois telecommunications consumer, the insider who presumably is able to complain about and change the tax through the Illinois political process. It is not a purpose of the Commerce Clause to protect state residents from their own state taxes.Second, whereas, with Pennsylvania's flat taxes, it was possible to measure the activities within the State because truck mileage on state highways could be tallied, reported, and apportioned, the exact path of thousands of electronic signals can neither be traced nor recorded. We therefore conclude that the Tax Act does not discriminate in favor of intrastate commerce at the expense of interstate commerce.DFinally, we reach the fourth prong of the Complete Auto test, namely, whether the Illinois tax is fairly related to the presence and activities of the taxpayer within the State. See D. H. Holmes, 486 U.S. at 486 U. S. 32-84. The purpose of this test is to ensure that a State's tax burden is not placed upon Page 488 U. S. 267 persons who do not benefit from services provided by the State. Commonwealth Edison, 453 U.S. at 453 U. S. 627.Appellants would severely limit this test by focusing solely on those services which Illinois provides to telecommunications equipment located within the State. We cannot accept this view. The tax which may be imposed on a particular interstate transaction need not be limited to the cost of the services incurred by the State on account of that particular activity. Id. at 453 U. S. 627, n. 16. On the contrary,"interstate commerce may be required to contribute to the cost of providing all governmental services, including those services from which it arguably receives no direct 'benefit.'"Ibid. (emphasis in original). The fourth prong of the Complete Auto test thus focuses on the wide range of benefits provided to the taxpayer, not just the precise activity connected to the interstate activity at issue. Indeed, last Term, in D. H. Holmes, supra, at 486 U. S. 32, we noted that a taxpayer's receipt of police and fire protection, the use of public roads and mass transit, and the other advantages of civilized society, satisfied the requirement that the tax be fairly related to benefits provided by the State to the taxpayer.In light of the foregoing, we have little difficulty concluding that the Tax Act is fairly related to the benefits received by Illinois telephone consumers. The benefits that Illinois provides cannot be limited to those exact services provided to the equipment used during each interstate telephone call. Illinois telephone consumers also subscribe to telephone service in Illinois, own or rent telephone equipment at an Illinois service address, and receive police and fire protection as well as the other general services provided by the State of Illinois.IIIFor the reasons stated above, we hold that the telecommunications tax imposed by the Tax Act is consistent with the Commerce Clause. It is fairly apportioned, does not discriminate against interstate commerce, and is fairly related Page 488 U. S. 268 to services which the State of Illinois provides to the taxpayer. The judgment of the Illinois Supreme Court is herebyAffirmed

U.S. Supreme CourtGoldberg v. Sweet, 488 U.S. 252 (1989)Goldberg v. SweetNo. 87-826Argued October 12, 1988Decided January 10, 1989*488 U.S. 252SyllabusIn light of recent technological changes creating billions of possible electronic paths that an interstate telephone call can take from one point to another, which paths are often indirect, typically bear no relation to state boundaries, and are virtually impossible to trace and record, Illinois passed its Telecommunications Excise Tax Act (Tax Act), which, inter alia, imposes a 5% tax on the gross charges of interstate telecommunications originated or terminated in the State and charged to an Illinois service address, regardless of where a particular call is billed or paid; provides a credit to any taxpayer upon proof that another State has taxed the same call; and requires telecommunications retailers, like appellant GTE Sprint Communications Corporation (Sprint), to collect the tax from consumers. The Illinois trial court held that the tax violates the Commerce Clause of the Federal Constitution in a class action brought by appellant Illinois residents, who were subject to and paid the tax, against appellee Director of the State's Department of Revenue and various long-distance telephone carriers, including Sprint, which crossclaimed against the Director. However, the State Supreme Court reversed, ruling that the tax satisfies the four-pronged test set forth in Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, and its progeny, for determining compliance with the Commerce Clause. All parties concede in this Court that the tax satisfies the first prong of the Complete Auto test; i.e., it is applied to an activity having a substantial nexus with Illinois.Held: The Illinois tax does not violate the Commerce Clause, since it satisfies the final three prongs of the Complete Auto test. Pp. 488 U. S. 259-267.(a) The tax is fairly apportioned. It is internally consistent, since it is so structured that, if every State were to impose an identical tax on only those interstate phone calls which are charged to an in-state service address, only one State would tax each such call and, accordingly, no multiple taxation would result. The tax is also externally consistent even though it is assessed on the gross charges of an interstate activity, since Page 488 U. S. 253 it is reasonably limited to the in-state business activity which triggers the taxable event in light of its practical or economic effects on interstate activity. Because it is assessed on the individual consumer, collected by the retailer, and accompanies the retail purchase of an interstate call, the tax's economic effect is like that of a sales tax, such that it reasonably reflects the way that consumers purchase interstate calls and can permissibly be based on gross charges even though the retail purchase, which triggers simultaneous activity in several States, is not a purely local event. Moreover, the risk of multiple taxation is low, since only two types of States -- a State like Illinois which taxes interstate calls billed to an in-state address and a State which taxes calls billed or paid in state -- have a substantial enough nexus to tax an interstate call. In any event, actual multiple taxation is precluded by the Tax Act's credit provision. Furthermore, an apportionment formula based on mileage or some other geographic division of interstate calls would produce insurmountable administrative and technical barriers, since such calls involve the intangible movement of electronic impulses through vast computerized networks. Pp. 488 U. S. 260-265.(b) The tax does not discriminate against interstate commerce by allocating a larger share of its burden to interstate calls, since that burden falls on in-state consumers, rather than on out-of-state consumers, and since, unlike mileage on state highways, the exact path of thousands of electronic signals can neither be traced nor recorded. American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, distinguished. Pp. 488 U. S. 265-266.(c) The tax is fairly related to services which the State provides to the benefit of taxpayers. Such services are not limited to those provided to telecommunications equipment used during interstate calls, but also include the ability to subscribe to telephone service and to own or rent telephone equipment at an address within the State, as well as police and fire protection and other general services. Pp. 488 U. S. 266-267.117 Ill. 2d 493, 512 N.E.2d 1262, affirmed.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, BLACKMUN, and KENNEDY, JJ., joined, in all but Part II-C of which STEVENS, J., joined, and in Parts I, II-A, II-D, and III of which O'CONNOR, J., joined. STEVENS, J., post, p. 488 U. S. 268, and O'CONNOR, J., post, p. 488 U. S. 270, filed opinions concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, post, p. 488 U. S. 271. Page 488 U. S. 254

1992_91-1513

JUSTICE BLACKMUN delivered the opinion of the Court. The federal priority statute, 31 U. S. C. § 3713, accords first priority to the United States with respect to a bankrupt debtor's obligations. An Ohio statute confers only fifth priority upon claims of the United States in proceedings to liquidate an insolvent insurance company. Ohio Rev. Code Ann. § 3903.42 (1989). The federal priority statute preempts the inconsistent Ohio law unless the latter is exempt from pre-emption under the McCarran-Ferguson Act, 59 Stat. 33, as amended, 15 U. S. C. § 1011 et seq. In order to resolve this case, we must decide whether a state statute establishing the priority of creditors' claims in a proceeding to liquidate an insolvent insurance company is a law enacted "for the purpose of regulating the business of insurance," within the meaning of § 2(b) of the McCarran-Ferguson Act, 15 U. S. C. § 1012(b).We hold that the Ohio priority statute escapes preemption to the extent that it protects policyholders. Accordingly, Ohio may effectively afford priority, over claims of the United States, to the insurance claims of policyholders and to the costs and expenses of administering the liquidation.Commissioners by Susan E. Martin; for the National Conference of Insurance Guaranty Funds et al. by F. James Foley; for the National Conference of Insurance Legislators by Stephen W Schwab; for Salvatore R. Curiale by Mathias E. Mone and Adam Liptak; for James A. Gordon by Paul W Grimm; for Lewis Melahn by W Dennis Cross; and for StephenA brief of amici curiae was filed for the State of Michigan et al. by Frank J. Kelley, Attorney General of Michigan, Thomas L. Casey, Solicitor General, and Harry G. Iwasko, Jr., and Janet A. VanCleve, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Grant Woods of Arizona, Robert A. Butterworth of Florida, Robert T. Stephan of Kansas, J. Joseph Curran, Jr., of Maryland, Marc Racicot of Montana, Robert J. Del Tufo of New Jersey, Daniel E. Lungren of California, Larry EchoHawk of Idaho, Michael E. Carpenter of Maine, Hubert H. Humphrey III of Minnesota, Frankie Sue Del Papa of Nevada, and Tom Udall of New Mexico.494But when Ohio attempts to rank other categories of claims above those pressed by the United States, it is not free from federal pre-emption under the McCarran- Ferguson Act.IThe Ohio priority statute was enacted as part of a complex and specialized administrative structure for the regulation of insurance companies from inception to dissolution. The statute proclaims, as its purpose, "the protection of the interests of insureds, claimants, creditors, and the public generally." § 3903.02(D). Chapter 3903 broadly empowers the State's Superintendent of Insurance to place a financially impaired insurance company under his supervision, or into rehabilitation, or into liquidation. The last is authorized when the superintendent finds that the insurer is insolvent, that placement in supervision or rehabilitation would be futile, and that "further transaction of business would be hazardous, financially or otherwise, to [the insurer's] policyholders, its creditors, or the public." § 3903.17(C). As liquidator, the superintendent is entitled to take title to all assets, § 3903.18(A); to collect and invest moneys due the insurer, § 3903.21(A)(6); to continue to prosecute and commence in the name of the insurer any and all suits and other legal proceedings, § 3903.21(A)(12); to collect reinsurance and unearned premiums due the insurer, §§ 3903.32 and 3903.33; to evaluate all claims against the estate, § 3903.43; and to make payments to claimants to the extent possible, § 3903.44. It seems fair to say that the effect of all this is to empower the liquidator to continue to operate the insurance company in all ways but one-the issuance of new policies.Pursuant to this statutory framework, the Court of Common Pleas for Franklin County, Ohio, on April 30, 1986, declared American Druggists' Insurance Company insolvent. The court directed that the company be liquidated, and it appointed respondent, Ohio's Superintendent of Insurance, to serve as liquidator. The United States, as obligee495on various immigration, appearance, performance, and payment bonds issued by the company as surety, filed claims in excess of $10.7 million in the state liquidation proceedings. The United States asserted that its claims were entitled to first priority under the federal statute, 31 U. S. C. § 3713(a)(1)(A)(iii), which provides: "A claim of the United States Government shall be paid first when ... a person indebted to the Government is insolvent and ... an act of bankruptcy is committed." 1Respondent Superintendent brought a declaratory judgment action in the United States District Court for the Southern District of Ohio seeking to establish that the federal priority statute does not pre-empt the Ohio law designating the priority of creditors' claims in insuranceliquidation proceedings. Under the Ohio statute, as noted above, claims of federal, state, and local governments are entitled only to fifth priority, ranking behind (1) administrative expenses, (2) specified wage claims, (3) policyholders' claims, and (4) claims of general creditors. § 3903.42.21 In its entirety, § 3713 reads:"(a)(I) A claim of the United States Government shall be paid first when-"(A) a person indebted to the Government is insolvent and-"(i) the debtor without enough property to pay all debts makes a volun-tary assignment of property;"(ii) property of the debtor, if absent, is attached; or "(iii) an act of bankruptcy is committed; or"(B) the estate of a deceased debtor, in the custody of the executor or administrator, is not enough to pay all debts of the debtor."(2) This subsection does not apply to a case under title 11."(b) A representative of a person or an estate (except a trustee acting under title 11) paying any part of a debt of the person or estate before paying a claim of the Government is liable to the extent of the payment for unpaid claims of the Government."2 In its entirety, § 3903.42 reads:"The priority of distribution of claims from the insurer's estate shall be in accordance with the order in which each class of claims is set forth in496Respondent argued that the Ohio priority scheme, rather than the federal priority statute, governs the priority of claims of the United States because it falls within the anti-this section. Every claim in each class shall be paid in full or adequate funds retained for such payment before the members of the next class receive any payment. No subclasses shall be established within any class. The order of distribution of claims shall be:"(A) Class 1. The costs and expenses of administration, including but not limited to the following:"(1) The actual and necessary costs of preserving or recovering theassets of the insurer;"(2) Compensation for all services rendered in the liquidation; "(3) Any necessary filing fees;"(4) The fees and mileage payable to witnesses; "(5) Reasonable attorney's fees;"(6) The reasonable expenses of a guaranty association or foreign guaranty association in handling claims."(B) Class 2. Debts due to employees for services performed to the extent that they do not exceed one thousand dollars and represent payment for services performed within one year before the filing of the complaint for liquidation. Officers and directors shall not be entitled to the benefit of this priority. Such priority shall be in lieu of any other similar priority that may be authorized by law as to wages or compensation of employees."(C) Class 3. All claims under policies for losses incurred, including third party claims, all claims against the insurer for liability for bodily injury or for injury to or destruction of tangible property that are not under policies, and all claims of a guaranty association or foreign guaranty association. All claims under life insurance and annuity policies, whether for death proceeds, annuity proceeds, or investment values, shall be treated as loss claims. That portion of any loss, indemnification for which is provided by other benefits or advantages recovered by the claimant, shall not be included in this class, other than benefits or advantages recovered or recoverable in discharge of familial obligations of support or by way of succession at death or as proceeds of life insurance, or as gratuities. No payment by an employer to an employee shall be treated as a gratuity. Claims under nonassessable policies for unearned premium or other premium refunds."(D) Class 4. Claims of general creditors."(E) Class 5. Claims of the federal or any state or local government.Claims, including those of any governmental body for a penalty or forfeit-497pre-emption provisions of the McCarran- Ferguson Act, 15 U. S. C. § 1012.3The District Court granted summary judgment for the United States. Relying upon the tripartite standard for divining what constitutes the "business of insurance," as articulated in Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119 (1982), the court considered three factors:"'first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insuranceure, shall be allowed in this class only to the extent of the pecuniary loss sustained from the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby. The remainder of such claims shall be postponed to the class of claims under division (H) of this section."(F) Class 6. Claims filed late or any other claims other than claims under divisions (G) and (H) of this section."(G) Class 7. Surplus or contribution notes, or similar obligations, and premium refunds on assessable policies. Payments to members of domestic mutual insurance companies shall be limited in accordance with law. "(H) Class 8. The claims of shareholders or other owners."3 Section 1012 reads:"(a) State regulation"The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business."(b) Federal regulation"No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, ... shall be applicable to the business of insurance to the extent that such business is not regulated by State Law."498industry.'" App. to Pet. for Cert. 36a (quoting Pireno, 458 U. S., at 129).Reasoning that the liquidation of an insolvent insurer possesses none of these attributes, the court concluded that the Ohio priority statute does not involve the "business of insurance." App. to Pet. for Cert. 45a.A divided Court of Appeals reversed. 939 F.2d 341 (CA6 1991). The court held that the Ohio priority scheme regulates the "business of insurance" because it protects the interests of the insured. Id., at 350-351. Applying Pireno, the court determined that the Ohio statute (1) transfers and spreads the risk of insurer insolvency; (2) involves an integral part of the policy relationship because it is designed to maintain the reliability of the insurance contract; and (3) focuses upon the protection of policyholders by diverting the scarce resources of the liquidating entity away from other creditors. 939 F. 2d, at 351-352.4Relying upon the same test to reach a different result, one judge dissented. He reasoned that the liquidation of insolvent insurers is not a part of the "business of insurance" because it (1) has nothing to do with the transfer of risk between insurer and insured that is effected by means of the insurance contract and that is complete at the time the contract is entered; (2) does not address the relationship between insurer and the insured, but the relationship among those left at the demise of the insurer; and (3) is not confined to policyholders, but governs the rights of all creditors. Id., at 353-354 (opinion of Jones, J.).We granted certiorari, 504 U. S. 907 (1992), to resolve the conflict among the Courts of Appeals on the question whether a state statute governing the priority of claims4 One judge concurred separately on the ground that the McCarranFerguson Act was not intended to modify the longstanding, traditional state regulation of insurance company liquidations. See 939 F. 2d, at 352 (opinion of Edgar, J.).499against an insolvent insurer is a "law enacted ... for the purpose of regulating the business of insurance," within the meaning of § 2(b) of the McCarran-Ferguson Act.5IIThe McCarran-Ferguson Act was enacted in response 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 that "[i]ssuing a policy of insurance is not a transaction of commerce," Paul v. Virginia, 8 Wall. 168, 183 (1869), subject to federal regulation. Accordingly, "the States enjoyed a virtually exclusive domain over the insurance industry." St. Paul Fire & Marine Ins. Co. v. Barry, 438 U. S. 531, 539 (1978).The emergence of an interconnected and interdependent national economy, however, prompted a more expansive jurisprudential image of interstate commerce. In the intervening years, for example, the Court held that interstate commerce encompasses the movement of lottery tickets from State to State, Lottery Case, 188 U. S. 321 (1903), the transport of five quarts of whiskey across state lines in a private automobile, United States v. Simpson, 252 U. S. 465 (1920), and the transmission of an electrical impulse over a wire between Alabama and Florida, Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1 (1878). It was not long before the Court was forced to come to terms with these decisions in the insurance context. Thus, in South-Eastern Underwriters, it held that an insurance company that conducted a substantial part of its business across state lines was engaged in interstate commerce and thereby was subject to the antitrust laws. This result, naturally, was widely perceived as a threat to state power to tax and regulate the5 Compare the result reached by the Sixth Circuit in this litigation with Gordon v. United States Dept. of Treasury, 846 F.2d 272 (CA4), cert. denied, 488 U. S. 954 (1988), and Idaho ex rel. Soward v. United States, 858 F.2d 445 (CA9 1988), cert. denied, 490 U. S. 1065 (1989).500insurance industry. To allay those fears, Congress moved quickly to restore the supremacy of the States in the realm of insurance regulation. It enacted the McCarran- Ferguson Act within a year of the decision in South-Eastern Underwri ters.The first section of the McCarran-Ferguson Act makes its mission very clear: "Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States." 15 U. S. C. § 1011. Shortly after passage of the Act, the Court observed: "Obviously Congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance." Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 429 (1946). Congress achieved this purpose in two ways. The first "was by removing obstructions which might be thought to flow from [Congress'] own power, whether dormant or exercised, except as otherwise expressly provided in the Act itself or in future legislation." Id., at 429-430. The second "was by declaring expressly and affirmatively that continued state regulation and taxation of this business is in the public interest and that the business and all who engage in it 'shall be subject to' the laws of the several states in these respects." Id., at 430.III"[T]he 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." Group Life & Health Ins. Co. v. Royal Drug Co., 440 U. S. 205, 210 (1979). Section 2(b) of the McCarran-Ferguson Act provides: "No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business501of insurance ... unless such Act specifically relates to the business of insurance." 15 U. S. C. § 1012(b). The parties agree that application of the federal priority statute would "invalidate, impair, or supersede" the Ohio priority scheme and that the federal priority statute does not "specifically relat[e] to the business of insurance." All that is left for us to determine, therefore, is whether the Ohio priority statute is a law enacted "for the purpose of regulating the business of insurance."This Court has had occasion to construe this phrase only once. On that occasion, it observed: "Statutes aimed at protecting or regulating this relationship [between insurer and insured], directly or indirectly, are laws regulating the 'business of insurance,'" within the meaning of the phrase. SEe v. National Securities, Inc., 393 U. S. 453, 460 (1969). The opinion emphasized that the focus of McCarran-Ferguson is upon the relationship between the insurance company and its policyholders:"The relationship between insurer and insured, the type of policy which could be issued, its reliability, interpretation, 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." Ibid.In that case, two Arizona insurance companies merged and received approval from the Arizona Director of Insurance, as required by state law. The Securities and Exchange Commission sued to rescind the merger, alleging that the merger-solicitation papers contained material misstatements, in violation of federal law. This Court held that, insofar as the Arizona law was an attempt to protect the inter-502ests of an insurance company's shareholders, it did not fall within the scope of the McCarran- Ferguson Act. Ibid. The Arizona statute, however, also required the Director, before granting approval, to make sure that the proposed merger "would not 'substantially reduce the security of and service to be rendered to policyholders.'" Id., at 462. The Court observed that this section of the statute "clearly relates to the 'business of insurance.'" Ibid. But because the "paramount federal interest in protecting shareholders [was] perfectly compatible with the paramount state interest in protecting policyholders," id., at 463, the Arizona statute did not preclude application of the federal securities laws.In the present case, on the other hand, there is a direct conflict between the federal priority statute and Ohio law. Under the terms of the McCarran-Ferguson Act, 15 U. S. C. § 1012(b), therefore, federal law must yield to the extent the Ohio statute furthers the interests of policyholders.Minimizing the analysis of National Securities, petitioners invoke Royal Drug and Pireno in support of their argument that the liquidation of an insolvent insurance company is not part of the "business of insurance" exempt from pre-emption under the McCarran- Ferguson Act. Those cases identified the three criteria, noted above, that are relevant in determining what activities constitute the "business of insurance." See Pireno, 458 U. S., at 129. Petitioners argue that the Ohio priority statute satisfies none of these criteria. According to petitioners, the Ohio statute merely determines the order in which creditors' claims will be paid, and has nothing to do with the transfer of risk from insured to insurer. Petitioners also contend that the Ohio statute is not an integral part of the policy relationship between insurer and insured and is not limited to entities within the insurance industry because it addresses only the relationship between policyholders and other creditors of the defunct corporation.To be sure, the Ohio statute does not directly regulate the "business of insurance" by prescribing the terms of the503insurance contract or by setting the rate charged by the insurance company. But we do not read Pireno to suggest that the business of insurance is confined entirely to the writing of insurance contracts, as opposed to their performance. Pireno and Royal Drug held only that "ancillary activities" that do not affect performance of the insurance contract or enforcement of contractual obligations do not enjoy the antitrust exemption for laws regulating the "business of insurance." Pireno, 458 U. S., at 134, n. 8. In Pireno, we held that use of a peer review committee to advise the insurer as to whether charges for chiropractic services were reasonable and necessary was not part of the business of insurance. The peer review practice at issue in that case had nothing to do with whether the insurance contract was performed; it dealt only with calculating what fell within the scope of the contract's coverage. Id., at 130. We found the peer review process to be "a matter of indifference to the policyholder, whose only concern is whether his claim is paid, not why it is paid" (emphases in original). Id., at 132. Similarly, in Royal Drug, we held that an insurer's agreements with participating pharmacies to provide benefits to policyholders was not part of the business of insurance. "The 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. So long as that promise is kept, policyholders are basically unconcerned with arrangements made between Blue Shield and participating pharmacies." 440 U. S., at 213-214 (footnote omitted).There can be no doubt that the actual performance of an insurance contract falls within the "business of insurance," as we understood that phrase in Pireno and Royal Drug. To hold otherwise would be mere formalism. The Court's statement in Pireno that the "transfer of risk from insured to insurer is effected by means of the contract between the parties ... and ... is complete at the time that the contract is entered," 458 U. S., at 130, presumes that the insurance504contract in fact will be enforced. Without performance of the terms of the insurance policy, there is no risk transfer at all. Moreover, performance of an insurance contract also satisfies the remaining prongs of the Pireno test: It is central to the policy relationship between insurer and insured and is confined entirely to entities within the insurance industry. The Ohio priority statute is designed to carry out the enforcement of insurance contracts by ensuring the payment of policyholders' claims despite the insurance company's intervening bankruptcy. Because it is integrally related to the performance of insurance contracts after bankruptcy, Ohio's law is one "enacted by any State for the purpose of regulating the business of insurance." 15 U. S. C. § 1012(b).Both Royal Drug and Pireno, moreover, involved the scope of the antitrust immunity located in the second clause of § 2(b). We deal here with the first clause, which is not so narrowly circumscribed. The language of § 2(b) is unambiguous: The first clause commits laws "enacted ... for the purpose of regulating the business of insurance" to the States, while the second clause exempts only "the business of insurance" itself from the antitrust laws. To equate laws "enacted ... for the purpose of regulating the business of insurance" with the "business of insurance" itself, as petitioners urge us to do, would be to read words out of the statute. This we refuse to do.66The dissent contends that our reading of the McCarran-Ferguson Act "runs counter to the basic rule of statutory construction that identical words used in different parts of the same Act are intended to have the same meaning." Post, at 515. This argument might be plausible if the two clauses actually employed identical language. But they do not. As explained above, the first clause contains the word "purpose," a term that is significantly missing from the second clause. By ignoring this word, the dissent overlooks another maxim of statutory construction: "that a court should '''give effect, if possible, to every clause and word of a statute."'" Moskal v. United States, 498 U. S. 103, 109-110 (1990), quoting United States v. Menasche, 348 U. S. 528, 538-539 (1955), and Montclair v. Ramsdell, 107 U. S. 147, 152 (1883).505The broad category of laws enacted "for the purpose of regulating the business of insurance" consists of laws that possess the "end, intention, or aim" of adjusting, managing, or controlling the business of insurance. Black's Law Dictionary 1236, 1286 (6th ed. 1990). This category necessarily encompasses more than just the "business of insurance." For the reasons expressed above, we believe that the actual performance of an insurance contract is an essential part of the "business of insurance." Because the Ohio statute is "aimed at protecting or regulating" the performance of an insurance contract, National Securities, 393 U. S., at 460, it follows that it is a law "enacted for the purpose of regulating the business of insurance," within the meaning of the first clause of § 2(b).Our plain reading of the McCarran- Ferguson Act also comports with the statute's purpose. As was stated in Royal Drug, the first clause of § 2(b) was intended to further Congress' primary objective of granting the States broad regulatory authority over the business of insurance. The second clause accomplishes Congress' secondary goal, which was to carve out only a narrow exemption for "the business of insurance" from the federal antitrust laws. 440 U. S., at 218, n.18. Cf. D. Howard, Uncle Sam versus the Insurance Commissioners: A Multi-Level Approach to Defining the "Business of Insurance" Under the McCarran-Ferguson Act, 25 Willamette L. Rev. 1 (1989) (advocating an interpretation of the two clauses that would reflect their dual purposes); Note, The Definition of "Business of Insurance" Under the McCarran- Ferguson Act After Royal Drug, 80 Colum. L. Rev. 1475 (1980) (same).Petitioners, however, also contend that the Ohio statute is not an insurance law but a bankruptcy law because it comes into play only when the insurance company has become insolvent and is in liquidation, at which point the insurance company no longer exists. We disagree. The primary purpose of a statute that distributes the insolvent insurer's assets to506policyholders in preference to other creditors is identical to the primary purpose of the insurance company itself: the payment of claims made against policies. And "mere matters of form need not detain us." National Securities, 393 U. S., at 460. The Ohio statute is enacted "for the purpose of regulating the business of insurance" to the extent that it serves to ensure that, if possible, policyholders ultimately will receive payment on their claims. That the policyholder has become a creditor and the insurer a debtor is not relevant.IVFinding little support in the plain language of the statute, petitioners resort to its legislative history. Petitioners rely principally upon a single statement in a House Report:"It is not the intention of Congress in the enactment of this legislation to clothe the States with any power to regulate or tax the business of insurance beyond that which they had been held to possess prior to the decision of the United States Supreme Court in the Southeastern Underwriters Association case." H. R. Rep. No. 143, 79th Cong., 1st Sess., 3 (1945).From this statement, petitioners argue that the McCarranFerguson Act was an attempt to "turn back the clock" to the time prior to South-Eastern Underwriters. At that time, petitioners maintain, the federal priority statute would have superseded any inconsistent state law.Even if we accept petitioners' premise, the state of the law prior to South-Eastern Underwriters is far from clear. Petitioners base their argument upon United States v. Knott, 298 U. S. 544 (1936), which involved the use and disposition of funds placed with the Florida treasurer as a condition of an insurer's conducting business in the State. According to petitioners, Knott stands for the proposition that the federal priority statute pre-empted inconsistent state laws even before South-Eastern Underwriters. But this proffered analogy to Knott unravels upon closer inspection. In that case,507the Court applied the federal priority statute only when the State had not specifically legislated the priority of claims. 298 U. S., at 549-550 ("But it is settled that an inchoate lien is not enough to defeat the [Federal Government's] priority .... Unless the law of Florida effected ... either a transfer of title from the company, or a specific perfected lien in favor of the Florida creditors, the United States is entitled to priority"). Moreover, other cases issued at the same time reached a different result. See, e. g., Conway v. Imperial Life Ins. Co., 207 La. 285, 21 So. 2d 151 (1945) (Louisiana statute specifically providing that deposited securities are held by state treasurer in trust for benefit and protection of policyholders supersedes federal priority statute).More importantly, petitioners' interpretation of the statute is at odds with its plain language. The McCarran- Ferguson Act did not simply overrule South-Eastern Underwriters and restore the status quo. To the contrary, it transformed the legal landscape by overturning the normal rules of preemption. Ordinarily, a federal law supersedes any inconsistent state law. The first clause of § 2(b) reverses this by imposing what is, in effect, a clear-statement rule, a rule that state laws enacted "for the purpose of regulating the business of insurance" do not yield to conflicting federal statutes unless a federal statute specifically requires otherwise. That Congress understood the effect of its language becomes apparent when we examine other parts of the legislative history.7 The second clause of § 2(b) also broke new ground: It7 Elaborating upon the purpose animating the first clause of § 2(b) of the McCarran-Ferguson Act, Senator Ferguson observed:"What we have in mind is that the insurance business, being interstate commerce, if we merely enact a law relating to interstate commerce, or if there is a law now on the statute books relating in some way to interstate commerce, it would not apply to insurance. We wanted to be sure that the Congress, in its wisdom, would act specifically with reference to insurance in enacting the law." 91 Congo Rec. 1487 (1945).This passage later confirms that "no existing law and no future law should, by mere implication, be applied to the business of insurance" (statement of Mr. Mahoney). Ibid.508"embod[ied] 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." Royal Drug, 440 U. S., at 220.Petitioners' argument appears to find its origin in the Court's statement in National Securities that "[t]he McCarran-Ferguson Act was an attempt to turn back the clock, to assure that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation." 393 U. S., at 459. The Court was referring to the primary purpose underlying the Act, namely, to restore to the States broad authority to tax and regulate the insurance industry. Petitioners would extrapolate from this general statement an invitation to engage in a detailed point-by-point comparison between the regime created by McCarran-Ferguson and the one that existed before. But it is impossible to compare our present world to the one that existed at a time when the business of insurance was believed to be beyond the reach of Congress' power under the Commerce Clause.vWe hold that the Ohio priority statute, to the extent that it regulates policyholders, is a law enacted for the purpose of regulating the business of insurance. To the extent that it is designed to further the interests of other creditors, however, it is not a law enacted for the purpose of regulating the business of insurance. Of course, every preference accorded to the creditors of an insolvent insurer ultimately may redound to the benefit of policyholders by enhancing the reliability of the insurance company. This argument, however, goes too far: "But in that sense, every business decision made by an insurance company has some impact on its reliability ... and its status as a reliable insurer." Royal Drug, 440 U. S., at 216-217. Royal Drug rejected the notion that such509indirect effects are sufficient for a state law to avoid preemption under the McCarran-Ferguson Act. Id., at 217.8We also hold that the preference accorded by Ohio to the expenses of administering the insolvency proceeding is reasonably necessary to further the goal of protecting policyholders. Without payment of administrative costs, liquidation could not even commence. The preferences conferred upon employees and other general creditors, however, do not escape pre-emption because their connection to the ultimate aim of insurance is too tenuous. Cf. Langdeau v. United States, 363 S. W. 2d 327 (Tex. Civ. App. 1962) (state statute according preference to employee wage claims is not a law enacted for the purpose of regulating the business of insurance). By this decision, we rule only upon the clash of priorities as pronounced by the respective provisions of the federal statute and the Ohio Code. The effect of this decision upon the Ohio Code's remaining priority provisions-includ-8 The dissent assails our holding at both ends, contending that it at once goes too far and not quite far enough. On the one hand, the dissent suggests that our holding is too "broad" in the sense that "any law which redounds to the benefit of policyholders is, ipso facto, a law enacted to regulate the business of insurance." Post, at 511. But this is precisely the argument we reject in the text, as evidenced by the narrowness of our actual holding. Uncomfortable with our distinction between the priority given to policyholders and the priority afforded other creditors, the dissent complains, on the other hand, that this is evidence of a "serious flaw." Post, at 517. But the dissent itself concedes that a state statute regulating the liquidation of insolvent insurance companies need not be treated as a package which stands or falls in its entirety. Post, at 518. Given this concession, it is the dissent's insistence upon an all-or-nothing approach to this particular statute that is flawed. The dissent adduces no support for its assertion that we must deal with the various priority provisions of the Ohio law as if they were all designed to further a single end. That was not the approach taken by this Court in National Securities, which carefully parsed a state statute with dual goals and held that it regulated the business of insurance only to the extent that it protected policyholders. Supra, at 502. And the dissent misinterprets our pronouncement on the clash of priorities as a "compromise holding," post, at 517, forgetting that the severability of the various priority provisions is a question of state law.510ing any issue of severability-is a question of state law to be addressed upon remand. Cf. Stanton v. Stanton, 421 U. S. 7, 17-18 (1975) (invalidating state statute specifying greater age of majority for males than for females and remanding to state court to determine age of majority applicable to both groups under state law).The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to that court for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1992SyllabusUNITED STATES DEPARTMENT OF TREASURY ET AL. v. FABE, SUPERINTENDENT OF INSURANCE OF OHIOCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 91-1513. Argued December 8, 1992-Decided June 11, 1993In proceedings under Ohio law to liquidate an insolvent insurance company, the United States asserted that its claims as obligee on various of the company's surety bonds were entitled to first priority under 31 U. S. C. § 3713(a)(1)(A)(iii). Respondent Fabe, the liquidator appointed by the state court, brought a declaratory judgment action in the Federal District Court to establish that priority in such proceedings is governed by an Ohio statute that ranks governmental claims behind (1) administrative expenses, (2) specified wage claims, (3) policyholders' claims, and (4) general creditors' claims. Fabe argued that the federal priority statute does not pre-empt the Ohio law because the latter falls within §2(b) of the McCarran-Ferguson Act, which provides, inter alia: "No Act of Congress shall be construed to ... supersede any law enacted by any state for the purpose of regulating the business of insurance .... " The court granted summary judgment for the United States on the ground that the state statute does not involve the "business of insurance" under the tripartite standard articulated in Union Labor Life Ins. Co. v. Pireno, 458 U. S. 119, 129. The Court of Appeals disagreed and, in reversing, held that the Ohio scheme regulates the "business of insurance" because it protects the interests of the insured.Held: The Ohio priority statute escapes federal pre-emption to the extent that it protects policyholders, but it is not a law enacted for the purpose of regulating the business of insurance to the extent that it is designed to further the interests of creditors other than policyholders. Pp. 499-510.(a) The McCarran-Ferguson Act's primary purpose was to restore to the States broad authority to tax and regulate the insurance industry in response to United States v. South-Eastern Underwriters Assn., 322(b) The Ohio statute, to the extent that it regulates policyholders, is a law enacted "for the purpose of regulating the business of insurance." Because that phrase refers to statutes aimed at protecting or regulating, directly or indirectly, the relationship between the insurance company and its policyholders, SEC v. National Securities, Inc., 393 U. S. 453, 460, the federal priority statute must yield to the conflicting Ohio stat-492Syllabusute to the extent that the latter furthers policyholders' interests. Pireno does not support petitioners' argument to the contrary, since the actual performance of an insurance contract satisfies each prong of the Pireno test: performance of the terms of an insurance policy (1) facilitates the transfer of risk from the insured to the insurer; (2) is central to the policy relationship between the insurer and the insured; and (3) is confined entirely to entities within the insurance industry. Thus, such actual performance is an essential part of the "business of insurance." Because the Ohio statute is integrally related to the performance of insurance contracts after bankruptcy, it is a law "enacted ... for the purpose of regulating the business of insurance" within the meaning of §2(b). This plain reading of the McCarran-Ferguson Act comports with the statute's purpose. Pp. 500-506.(c) Petitioners' contrary interpretation based on the legislative history is at odds with § 2(b)'s plain language and unravels upon close inspection. Pp. 506-508.(d) The preference accorded by Ohio to the expenses of administering the insolvency proceeding is reasonably necessary to further the goal of protecting policyholders, since liquidation could not even commence without payment of administrative costs. The preferences conferred upon employees and other general creditors, however, do not escape pre-emption because their connection to the ultimate aim of insurance is too tenuous. Pp. 508-510.939 F.2d 341, affirmed in part, reversed in part, and remanded.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, STEVENS, and O'CONNOR, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which SCALIA, SOUTER, and THOMAS, JJ., joined, post, p. 510.Robert A. Long, Jr., argued the cause for petitioners.With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Mahoney, and William Kanter.James R. Rishel argued the cause for respondent. With him on the brief were David A. Kopech and Zachary T. Donovan. **Briefs of amici curiae urging affirmance were filed for the Bureau of Insurance, Commonwealth of Virginia, et al. by Harold B. Gold and Randolph N Wisener; for the Council of State Governments et al. by Richard Ruda and Michael J. Wahoske; for the National Association of Insurance493Full Text of Opinion

1996_96-6298

Sally L. Wellman, Assistant Attorney General of Wisconsin, argued the cause for respondent. With her on the brief was James E. Doyle, Attorney General. *JUSTICE SOUTER delivered the opinion of the Court.The Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, signed into law on April 24, 1996, enacted the present 28 U. S. C. § 2254(d) (1994 ed., Supp. II). The issue in this case is whether that new section of the statute dealing with petitions for habeas corpus governs* Judy Clarke and Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Simon B. Karas and Jon C. Walden, Assistant Attorneys General, Christine O. Gregoire, Attorney General of Washington, and Paul D. Weisser and John J. Samson, Assistant Attorneys General, John M. Bailey, Chief States Attorney of Connecticut, and Gus F. Diaz, Acting Attorney General of Guam, joined by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert Butterworth of Florida, Michael J. Bowers of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Peter Verniero of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, John Knox Walkup of Tennessee, Jan Graham of Utah, James B. Gilmore III of Virginia, Julio A. Brady of the Virgin Islands, and William U. Hill of Wyoming; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Ronald D. Maines.323applications in noncapital cases that were already pending when the Act was passed. We hold that it does not.IWisconsin tried Aaron Lindh on multiple charges of murder and attempted murder. In response to his insanity defense, the State called a psychiatrist who had spoken with Lindh immediately after the killings but had later, and before Lindh's trial, come under criminal investigation by the State for sexual exploitation of some of his patients. Although, at trial, Lindh tried to ask the psychiatrist about that investigation, hoping to suggest the witness's interest in currying favor with the State, the trial court barred the questioning. Lindh was convicted.On direct appeal, Lindh claimed a violation of the Confrontation Clause of the National Constitution, but despite the denial of relief, Lindh sought neither review in this Court nor state collateral review. Instead, on July 9, 1992, he filed a habeas corpus application in the United States District Court, in which he again argued his Confrontation Clause claim. When relief was denied in October 1995, Lindh promptly appealed to the Seventh Circuit. Shortly after oral argument there, however, the federal habeas statute was amended, and the Seventh Circuit ordered Lindh's case be reheard en banc to see whether the new statute applied to Lindh and, if so, how his case should be treated.The Court of Appeals held that the Act's amendments to chapter 153 of Title 28 generally did apply to cases pending on the date of enactment. 96 F.3d 856, 863 (1996). Since the court did not read the statute as itself answering the questions whether or how the newly amended version of § 2254(d) would apply to pending applications like Lindh's, id., at 861-863, it turned to this Court's recent decision in Landgraf v. USI Film Products, 511 U. S. 244 (1994). Landgrafheld that, where a statute did not clearly mandate an application with retroactive effect, a court had to deter-324mine whether applying it as its terms ostensibly indicated would have genuinely retroactive effect; if so, the judicial presumption against retroactivity would bar its application. The Seventh Circuit concluded that applying the new § 2254(d) to cases already pending would not have genuinely retroactive effect because it would not attach "new legal consequences" to events preceding enactment, and the court held the statute applicable to Lindh's case. 96 F. 3d, at 863867 (citing Landgraf, supra, at 270). On the authority of the new statute, the court then denied relief on the merits. 96The Seventh Circuit's decision that the new version of § 2254(d) applies to pending, chapter 153 cases conflicts with the holdings of Edens v. Hannigan, 87 F.3d 1109, 1112, n. 1 (CAlO 1996), Boria v. Keane, 90 F.3d 36, 37-38 (CA2 1996) (per curiam), and Jeffries v. Wood, 114 F.3d 1484 (CA9 1997). In accord with the Seventh Circuit is the § 2253(c) case of Hunter v. United States, 101 F.3d 1565, 1568-1573 (CAll 1996) (en bane) (relying on Lindh to hold certain amendments to chapter 153 applicable to pending cases). We granted certiorari limited to the question whether the new § 2254(d) applies to Lindh's case, 519 U. S. 1074 (1996), and we now reverse.IIBefore getting to the statute itself, we have to address Wisconsin's argument that whenever a new statute on its face could apply to the litigation of events that occurred before it was enacted, there are only two alternative sources of rules to determine its ultimate temporal reach: either an "express command" from Congress or application of our Landgraf default rule. In Landgraf, we said:"When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default325rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect .... If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result." Landgraf, supra, at 280.Wisconsin insists that this language means that, in the absence of an express command regarding temporal reach, this Court must determine that temporal reach for itself by applying its judicial default rule governing retroactivity, to the exclusion of all other standards of statutory interpretation. Brief for Respondent 9-14; see also Hunter v. United States, supra, at 1569 (suggesting that Landgraf may have announced a general clear-statement rule regarding the temporal reach of statutes).Wisconsin's reading, however, ignores context. The language quoted disposed of the question whether the practice of applying the law as it stands at the time of decision represented a retreat from the occasionally conflicting position that retroactivity in the application of new statutes is disfavored. The answer given was no, and the presumption against retroactivity was reaffirmed in the traditional rule requiring retroactive application to be supported by a clear statement. Landgraf thus referred to "express command[s]," "unambiguous directive[s]," and the like where it sought to reaffirm that clear-statement rule, but only there. See Landgrafv. USI Film Products, 511 U. S., at 263 ("[U]nambiguous directive" is necessary to authorize "retroactive application"); id., at 264 (statutes "will not be construed to have retroactive effect unless their language requires this result" (internal quotation marks and citation omitted)); id., at 272-273 ("Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application"); id., at 286 (finding "no clear evidence of congressional intent" to rebut the "presumption326against statutory retroactivity"); id., at 286 (SCALIA, J., concurring in judgment) (agreeing that "a legislative enactment affecting substantive rights does not apply retroactively absent clear statement to the contrary").In determining whether a statute's terms would produce a retroactive effect, however, and in determining a statute's temporal reach generally, our normal rules of construction apply. Although Landgrafs default rule would deny application when a retroactive effect would otherwise result, other construction rules may apply to remove even the possibility of retroactivity (as by rendering the statutory provision wholly inapplicable to a particular case), as Lindh argues the recognition of a negative implication would do here. In sum, if the application of a term would be retroactive as to Lindh, the term will not be applied, even if, in the absence of retroactive effect, we might find the term applicable; if it would be prospective, the particular degree of prospectivity intended in the Act will be identified in the normal course in order to determine whether the term does apply to Lindh.IIIThe statute reveals Congress's intent to apply the amendments to chapter 153 only to such cases as were filed after the statute's enactment (except where chapter 154 otherwise makes select provisions of chapter 153 applicable to pending cases). Title I of the Act stands more or less independent of the Act's other titles 1 in providing for the revision of federal habeas practice and does two main things. First, in §§ 101-106, it amends § 2244 and §§ 2253-2255 of chapter 153 of Title 28 of the United States Code, governing all habeas corpus proceedings in the federal courts.2 110 Stat. 1217-1 The other titles address such issues as restitution to victims of crime (Title II), various aspects of international terrorism (Titles II, III, IV, VII, VIII), restrictions on various kinds of weapons and explosives (Titles V and VI), and miscellaneous items (Title IX). See 110 Stat. 1214-1217.2 Section 103 also amends Rule 22 of the Federal Rules of Appellate Procedure. 110 Stat. 1218.3271221. Then, for habeas proceedings against a State in capital cases, § 107 creates an entirely new chapter 154 with special rules favorable to the state party, but applicable only if the State meets certain conditions, including provision for appointment of postconviction counsel in state proceedings.3 110 Stat. 1221-1226. In § 107(c), the Act provides that "Chapter 154 ... shall apply to cases pending on or after the date of enactment of this Act." 110 Stat. 1226.We read this provision of § 107(c), expressly applying chapter 154 to all cases pending at enactment, as indicating implicitly that the amendments to chapter 153 were assumed and meant to apply to the general run of habeas cases only when those cases had been filed after the date of the Act. The significance of this provision for application to pending cases becomes apparent when one realizes that when chapter 154 is applicable, it will have substantive as well as purely procedural effects. If chapter 154 were merely procedural in a strict sense (say, setting deadlines for filing and disposition, see 28 U. S. C. §§ 2263, 2266 (1994 ed., Supp. II); 110 Stat. 1223, 1224-1226), the natural expectation would be that it would apply to pending cases. Landgraf, supra, at 275 (noting that procedural changes "may often be applied in suits arising before their enactment without raising concerns about retroactivity"). But chapter 154 does more, for in its revisions of prior law to change standards of proof and persuasion in a way favorable to a State, the statute goes beyond "mere" procedure to affect substantive entitlement to relief. See 28 U. S. C. § 2264(b) (1994 ed., Supp. II); 110 Stat. 1223 (incorporating revised legal standard of new § 2254(d)). Landgraf did not speak to the rules for determining the temporal reach of such a statute (having no need to do so). While the statute might not have a true retroactive effect, neither was it clearly "procedural" so as to fall within the3 Section 108 further adds a "technical amendment" regarding expert and investigative fees for the defense under 21 U. S. C. § 848(q). 110 Stat. 1226.328Court's express (albeit qualified) approval of applying such statutes to pending cases. Since Landgraf was the Court's latest word on the subject when the Act was passed, Congress could have taken the opinion's cautious statement about procedural statutes and its silence about the kind of provision exemplified by the new § 2254(d) as counseling the wisdom of being explicit if it wanted such a provision to be applied to cases already pending. While the terms of § l07(c) may not amount to the clear statement required for a mandate to apply a statute in the disfavored retroactive way,4 they do serve to make it clear as a general matter that4 In United States v. Nordic Village, Inc., 503 U. S. 30, 34-37 (1992), this Court held that the existence of "plausible" alternative interpretations of statutory language meant that that language could not qualify as an "unambiguous" expression of a waiver of sovereign immunity. And cases where this Court has found truly "retroactive" effect adequately authorized by a statute have involved statutory language that was so clear that it could sustain only one interpretation. See Graham & Foster v. Goodcell, 282 U. S. 409, 416-420 (1931) (holding that a statutory provision "was manifestly intended to operate retroactively according to its terms" where the tax statute spelled out meticulously the circumstances that defined the claims to which it applied and where the alternative interpretation was absurd); Automobile Club of Mich. v. Commissioner, 353 U. S. 180, 184 (1957) (finding a clear statement authorizing the Commissioner of Internal Revenue to correct tax rulings and regulations "retroactively" where the statutory authorization for the Commissioner's action spoke explicitly in terms of "retroactivity"); United States v. Zacks, 375 U. S. 59, 65-67 (1963) (declining to give retroactive effect to a new substantive tax provision by reopening claims otherwise barred by statute of limitations and observing that Congress had provided for just this sort of retroactivity for other substantive provisions by explicitly creating new grace periods in which otherwise barred claims could be brought under the new substantive law). Cf. Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 55-57 (1996) (finding a clear statement of congressional abrogation of Eleventh Amendment immunity where the federal statute went beyond granting federal jurisdiction to hear a claim and explicitly contemplated "the State" as defendant in federal court in numerous provisions of the Act).Landgraf suggested that the following language from an unenacted precursor of the statute at issue in that case might possibly have qualified as a clear statement for retroactive effect: "[This Act] shall apply to all329chapter 154 applies to pending cases when its terms fit those cases at the particular procedural points they have reached. (As to that, of course, there may well be difficult issues, and it may be that application of Landgrafs default rule will be necessary to settle some of them.)The next point that is significant for our purposes is that everything we have just observed about chapter 154 is true of changes made to chapter 153. As we have already noted, amended § 2254(d) (in chapter 153 but applicable to chapter 154 cases) governs standards affecting entitlement to relief. If, then, Congress was reasonably concerned to ensure that chapter 154 be applied to pending cases, it should have been just as concerned about chapter 153, unless it had the different intent that the latter chapter not be applied to the general run of pending cases.Nothing, indeed, but a different intent explains the different treatment. This might not be so if, for example, the two chapters had evolved separately in the congressional process, only to be passed together at the last minute, after chapter 154 had already acquired the mandate to apply it to pending cases. Under those circumstances, there might have been a real possibility that Congress would have intended the same rule of application for each chapter, but in the rough-andtumble no one had thought of being careful about chapter 153, whereas someone else happened to think of inserting aproceedings pending on or commenced after the date of enactment of this Act." 511 U. S., at 260 (emphasis added; internal quotation marks omitted). But, even if that language did qualify, its use of the sort of absolute language absent from § 107(c) distinguishes it. Cf. United States v. Williams, 514 U. S. 527, 531-532 (1995) (finding a waiver of sovereign immunity "unequivocally expressed" in language granting jurisdiction to the courts over "[ainy civil action against the United States for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected" (emphasis in Williams; internal quotation marks omitted)); id., at 541 (SCALIA, J., concurring) ("The [clear-statement] rule does not ... ... require explicit waivers to be given a meaning that is implausible ... ").330prOVISIOn in chapter 154. But those are not the circumstances here. Although chapters 153 and 154 may have begun life independently and in different Houses of Congress,5 it was only after they had been joined together and introduced as a single bill in the Senate (S. 735) that what is now § 107(c) was added.6 Both chapters, therefore, had to have been in mind when § 107(c) was added. Nor was there anything in chapter 154 prior to the addition that made the intent to apply it to pending cases less likely than a similar intent to apply chapter 153. If anything, the contrary is true, as the discussion of § 2264(b) will indicate.The insertion of § 107(c) with its different treatments of the two chapters thus illustrates the familiar rule that negative implications raised by disparate provisions are strongest when the portions of a statute treated differently had already been joined together and were being considered simultaneously when the language raising the implication was inserted. See Field v. Mans, 516 U. S. 59, 75 (1995) ("The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects ... "). When § 107(c) was added, that is, a thoughtful Member of the Congress was most likely to have intended just what the later reader sees by inference.The strength of the implication is not diminished by the one competing explanation suggested, see Brief for Respondent 11-12, which goes as follows. Chapter 154 provides for expedited filing and adjudication of habeas5 See 96 F.3d 856, 861 (CA7 1996). Lindh concedes this much. Brief for Petitioner 23, n. 15.6 Amendment 1199, offered by Senator Dole on May 25, 1995, added what was then § 607(c) and now is § 107(c). See 141 Congo Rec. 14600, 14614 (1995). A comparison of S. 735 as it stood on May 1, 1995, and S. 735 as it passed the Senate on June 7, after the substitution of Amendment 1199, reveals that the part of the bill dealing with habeas corpus reform was substantially the same before and after the amendment in all ways relevant to our interpretation of § 107(c).331applications in capital cases when a State has met certain conditions. In general terms, applications will be expedited (for a State's benefit) when a State has made adequate provision for counsel to represent indigent habeas applicants at the State's expense. Thus, § 2261(b) provides that "[t]his chapter is applicable if a State establishes ... a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent prisoners .... " 110 Stat. 1221-1222. There is an ambiguity in the provision just quoted, the argument runs, for it applies chapter 154 to capital cases only where "a State establishes ... a mechanism," leaving a question whether the chapter would apply if a State had already established such a mechanism before chapter 154 was passed. The idea is that the present tense of the word "establishes" might be read to rule out a State that already had "established" a mechanism, suggesting that when § 107(c) was added to provide that the chapter would apply to "cases pending" it was meant to eliminate the ambiguity by showing that all pending cases would be treated alike.This explanation of the significance of § 107(c) is not, however, very plausible. First, one has to strain to find the ambiguity on which the alternative explanation is supposed to rest. Why would a Congress intent on expediting capital habeas cases have wanted to disfavor a State that already had done its part to promote sound resolution of prisoners' petitions in just the way Congress sought to encourage? It would make no sense to leave such States on the slower track, and it seems unlikely that federal courts would so have interpreted § 2261(b). Second, anyone who had seen such ambiguity lurking could have dispatched it in a far simpler and straightforward fashion than enacting § 107(c); all the drafter would have needed to do was to insert three words into § 2261(b), to make it refer to a State that "establishes or has established ... a mechanism." It simply is not plausible332that anyone so sensitive as to find the unlikely ambiguity would be so delphic as to choose § 107(c) to fix it. Indeed, § 107(c) would (on the ambiguity hypothesis) be at least as uncertain as the language it was supposed to clarify, since "cases pending" could be read to refer to cases pending in States that set up their mechanisms only after the effective date of the Act. The hypothesis of fixing ambiguity, then, is too remote to displace the straightforward inference that chapter 153 was not meant to apply to pending cases.Finally, we should speak to the significance of the new § 2264(b), which Lindh cites as confirming his reading of § 107(c) of the Act. While § 2264(b) does not speak to the present issue with flawless clarity, we agree with Lindh that it tends to confirm the interpretation of § 107(c) that we adopt. Section 2264(b) is a part of the new chapter 154 and provides that "[f]ollowing review subject to subsections (a), (d), and (e) of § 2254, the court shall rule on the claims [subject to expedited consideration] before it." 110 Stat. 1223. As we have said before, § 2254 is part of chapter 153 applying to habeas cases generally, including cases under chapter 154. Its subsection (a) existed before the Act, simply providing for a habeas remedy for those held in violation of federal law. Although § 2254 previously had subsections lettered (d) and (e) (dealing with a presumption of correctness to be accorded state-court factual findings and the production of state-court records when evidentiary sufficiency is challenged, respectively) the Act eliminated the old (d) and relettered the old (e) as (f); in place of the old (d), it inserted a new (d) followed by a new (e), the two of them dealing with, among other things, the adequacy of state factual determinations as bearing on a right to federal relief, and the presumption of correctness to be given such state determinations. 110 Stat. 1219. It is to these new provisions (d) and (e), then, that § 2264(b) refers when it provides that chapter 154 determinations shall be made subject to them.333Leaving aside the reference to § 2254(a) for a moment, why would Congress have provided specifically in § 2264(b) that chapter 154 determinations shall be made subject to §§ 2254(d) and (e), given the fact that the latter are part of chapter 153 and thus independently apply to habeas generally? One argument is that the answer lies in § 2264(a), which (in expedited capital cases) specially provides an exhaustion requirement (subject to three exceptions), restricting federal habeas claims to those "raised and decided on the merits in the State courts .... " 110 Stat. 1223. See 96 F. 3d, at 862-863. The argument assumes (and we will assume for the sake of the argument) that in expedited capital cases, this provision of § 2264(a) supersedes the requirements for exhaustion of state remedies imposed as a general matter by §§2254(b) and (C).7 The argument then goes7 There are reasons why the position that § 2264(a) replaces rather than complements §§ 2254(b) and (c) is open to doubt: Lindh argues with some force that to read § 2264(a) as replacing the exhaustion requirement of §§ 2254(b) and (c) would mean that in important classes of cases (those in the categories of three § 2264(a) exceptions), the State would not be able to insist on exhaustion in the state courts. In cases raising claims of newly discovered evidence, for example, the consequence could be that the State could not prevent the prisoner from going directly to federal court and evading § 2254(e)'s presumption of correctness of state-court factual findings as well as § 2254(d)'s new, highly deferential standard for evaluating state-court rulings. It is true that a State might be perfectly content with the prisoner's choice to go straight to federal court in some cases, but the State has been free to waive exhaustion to get that result. The State has not explained why Congress would have wanted to deprive the States of the § 2254 exhaustion tools in chapter 154 cases, and we are hard pressed to come up with a reason, especially considering the Act's apparent general purpose to enhance the States' capacities to control their own adjudications. It would appear that the State's reading of § 2264(a) would also eliminate from chapter 154 cases the provisions of § 2254 that define the exhaustion requirement explicitly as requiring a claim to be raised by any and every available procedure in the State, 28 U. S. C. § 2254(c), that newly authorize federal courts to deny unexhausted claims on the merits, § 2254(b)(2), and that newly require a State's waiver of334on, that § 2264(b) is explicit in applying §§ 2254(d) and (e) to such capital cases in order to avoid any suggestion that when Congress enacted § 2264(a) to supersede §§ 2254(b) and (c) on exhaustion, Congress also meant to displace the neighboring provisions of §§ 2254(d) and (e) dealing with such things as the status of state factual determinations. But we find this unlikely. First, we find it hard to imagine why anyone would read a superseding exhaustion rule to address the applicability not just of the other exhaustion requirement but of provisions on the effect of state factual determinations. Anyone who did read the special provision for exhaustion in capital cases to supersede not only the general exhaustion provisions but evidentiary status and presumption provisions as well would have had to assume that Congress could reasonably have meant to leave the law on expedited capital cases (which is more favorable to the States that fulfill its conditions) without any presumption of the correctness of relevant state factual determinations. This would not, we think, be a reasonable reading and thus not a reading that Congress would have feared and addressed through § 2264(b). We therefore have to find a different function for the express requirement of § 2264(b) that chapter 154 determinations be made in accordance with §§ 2254(d) and (e).Continuing on the State's assumption that § 2264(a) replaces rather than complements § 2254's exhaustion provisions, we can see that the function of providing that §§ 2254(d) and (e) be applicable in chapter 154 cases is, in fact,exhaustion to be shown to be express, §2254(b)(3). No explanation for why Congress would have wanted to deny the States these advantages is apparent or offered by the parties, which suggests that no such effects were intended at all but that § 2264(a) was meant as a supplement to rather than a replacement for §§ 2254(b) and (c).Nevertheless, as stated in the text, we assume for the sake of argument that the State's understanding of § 2264(a) as replacing rather than complementing the chapter 153 exhaustion requirements for chapter 154 is the correct one. Forceful arguments can be made on each side, and we do not need to resolve the conflict here.335supportive of the negative implication apparent in § 107(c). There would have been no need to provide expressly that subsections (d) and (e) would apply with the same temporal reach as the entirely new provisions of chapter 154 if all the new provisions in both chapters 153 and 154 were potentially applicable to cases pending when the Act took effect, as well as to those filed later. If the special provision for applying §§ 2254(d) and (e) in cases under chapter 154 has any utility, then, it must be because subsections (d) and (e) might not apply to all chapter 154 cases; since chapter 154 and the new sections of chapter 153 unquestionably apply alike to cases filed after the Act took effect, the cases to which subsections (d) and (e) from chapter 153 would not apply without express provision must be those cases already pending when the Act took effect. The utility of § 2264(b), therefore, is in providing that when a pending case is also an expedited capital case subject to chapter 154, the new provisions of §§ 2254(d) and (e) will apply to that case. The provision thus confirms that Congress assumed that in the absence of such a provision, §§ 2254(d) and (e) (as new parts of chapter 153) would not apply to pending federal habeas cases.This analysis is itself consistent, in turn, with Congress's failure in § 2264(b) to make any express provision for applying §§ 2254(f), (g), (h), or (i). Subsections (f) and (g) deal with producing state-court evidentiary records and their admissibility as evidence. Congress would obviously have wanted these provisions to apply in chapter 154 pending cases, but because they were old provisions, which had already attached to "pending" capital habeas cases (only their letter designations had been amended), Congress had no need to make any special provision for their application to pending capital habeas cases that might immediately or later turn out to be covered by chapter 154. Subsections (h) and (i), however, are new; if Congress wanted them to apply to chapter 154 cases from the start it would on our hypotheses have had to make the same special provision that § 2264(b)336made for subsections (d) and (e). But there are reasons why Congress need not have made any special provisions for subsections (h) and (i) to apply to the "pending" chapter 154 cases. Subsections (h) and (i) deal, respectively, with the appointment of counsel for the indigent in the federal proceeding, and the irrelevance to habeas relief of the adequacy of counsel's performance in previous postconviction proceedings. See 110 Stat. 1219-1220. There was no need to make subsection (h) immediately available to pending cases, capital or not, because 21 U. S. C. § 848(q)(4)(B) already authorized appointment of counsel in such cases. And there was no reason to make subsection (i) immediately available for a State's benefit in expedited capital cases, for chapter 154 already dealt with the matter in § 2261(e), see 110 Stat. 1222. There is, therefore, a good fit of the § 2264(b) references with the inference that amendments to chapter 153 were meant to apply only to subsequently filed cases; where there was a good reason to apply a new chapter 153 provision in the litigation of a chapter 154 case pending when the Act took effect, § 2264(b) made it applicable, and when there was no such reason it did no such thing.There is only one loose end. Section 2254(a) was an old provision, without peculiar relevance to chapter 154 cases, but applicable to them without any need for a special provision; as an old provision it was just like the lettered subsections (f) and (g). Why did § 2264(b) make an express provision for applying it to chapter 154 cases? No answer leaps out at us. All we can say is that in a world of silk purses and pigs' ears, the Act is not a silk purse of the art of statutory drafting.The upshot is that our analysis accords more coherence to §§ 107(c) and 2264(b) than any rival we have examined. That is enough. We hold that the negative implication of § 107(c) is that the new provisions of chapter 153 generally apply only to cases filed after the Act became effective. Because Lindh's case is not one of these, we reverse the337judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1996SyllabusLINDH v. MURPHY, WARDENCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 96-6298. Argued April 14, 1997-Decided June 23,1997Wisconsin tried petitioner Lindh on noncapital murder and attempted murder charges. In response to his insanity defense, the State called a psychiatrist who had examined Lindh but who had come under criminal investigation for sexual exploitation of patients before the trial began. Lindh's attempt to question the doctor about that investigation in hopes of showing the doctor's interest in currying favor with the State was barred by the trial court, and Lindh was convicted. He was denied relief on his direct appeal, in which he claimed a violation of the Confrontation Clause. He raised that claim again in a federal habeas corpus application, which was denied, and he promptly appealed. Shortly after oral argument before the Seventh Circuit, the Antiterrorism and Effective Death Penalty Act of 1996 (Act) amended the federal habeas statute. Following an en banc rehearing to consider the Act's impact, the court held that the amendments to chapter 153 of Title 28, which governs all habeas proceedings, generally apply to cases pending on the date of enactment; that applying the new version of 28 U. S. C. § 2254(d)-which governs standards affecting entitlement to relief-to pending cases would not have a retroactive effect barring its application under Landgraf v. USI Film Products, 511 U. S. 244, because it would not attach new legal consequences to events preceding enactment; and that the statute applied to Lindh's case.Held: Since the new provisions of chapter 153 generally apply only to cases filed after the Act became effective, they do not apply to pending noncapital cases such as Lindh's. Pp. 324-337.(a) Wisconsin errs in arguing that whenever a new statute on its face could apply to the litigation of events preceding enactment, there are only two alternative sources of rules to determine its ultimate temporal reach: either Congress's express command or application of the Landgraf default rule governing retroactivity. Normal rules of construction apply in determining a statute's temporal reach generally and whether a statute's terms would produce a retroactive effect. Although Landgraf's rule would deny application when a retroactive effect would otherwise result, other construction rules may apply to remove even the possibility of retroactivity (as by rendering the statutory provision321wholly inapplicable to a particular case), as Lindh argues the recognition of a negative implication would do here. Pp. 324-326.(b) The statute reveals Congress's general intent to apply the chapter 153 amendments only to cases filed after its enactment. The Act revised chapter 153 for all habeas proceedings. Then § 107 of the Act created an entirely new chapter 154 for habeas proceedings in capital cases, with special rules favorable to those States that meet certain conditions. Section 107(c) expressly applies chapter 154 to pending cases. The negative implication is that the chapter 153 amendments were meant to apply only to cases filed after enactment. If Congress was reasonably concerned to ensure that chapter 154 applied to pending cases, only a different intent explains the fact that it did not enact a similar provision for chapter 153. Had the chapters evolved separately and been joined together at the last minute, after chapter 154 had acquired its mandate, there might have been a possibility that Congress intended the same rule for each chapter, but was careless in the roughand-tumble. But those are not the circumstances here: § 107(c) was added after the chapters were introduced as a single bill. Section 107(c)'s insertion thus illustrates the familiar rule that negative implications raised by disparate provisions are strongest when the portions of a statute treated differently had already been joined together and were being considered simultaneously when the language raising the implication was inserted. See Field v. Mans, 516 U. S. 59. Respondent's one competing explanation-that § 107(c) was intended to fix an ambiguity over when a State would qualify for chapter 154's favorable rules-is too remote to displace the straightforward inference that chapter 153 was not meant to apply to pending cases. Finally, while new § 2264(b)-which was enacted within chapter 154 and provides that new §§2254(d) and (e) in chapter 153 would apply to pending chapter 154 cases-does not speak to the present issue with flawless clarity, it tends to confirm the interpretation of § 107(c) adopted here. It shows that Congress assumed that in the absence of § 2264(b), new §§ 2254(d) and (e) would not apply to pending cases. Pp.326-337.96 F.3d 856, reversed and remanded.SOUTER, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined, post, p. 337.James S. Liebman argued the cause for petitioner. With him on the briefs were Richard C. Neuhoff and Keith A. Findley.322Full Text of Opinion

1969_190

MR. JUSTICE WHITE delivered the opinion of the Court.Petitioner was found guilty by a jury on four counts charging violations of the federal narcotics laws. The issue before us is the validity of the provisions of § 2 of the Act of February 9, 1909, 35 Stat. 614, as amended, 21 U.S.C. § 174, and 26 U.S.C. § 4704(a) which authorize an inference of guilt from the fact of possession of narcotic drugs, in this case heroin and cocaine. Page 396 U. S. 401The charges arose from seizures by federal narcotics agents of two packages of narcotics. On June 1, 1967, Turner and two companions were arrested in Weehawken, New Jersey, shortly after their automobile emerged from the Lincoln Tunnel. While the companions were being searched, but before Turner was searched, the arresting agents saw Turner throw a package to the top of a nearby wall. The package was retrieved, and was found to be a foil package weighing 14.68 grams and containing a mixture of cocaine hydrochloride and sugar, 5% of which was cocaine. Government agents thereafter found a tinfoil package containing heroin under the front seat of the car. This package weighed 48.25 grams and contained a mixture of heroin, cinchonal alkaloid, mannitol, and sugar, 15.2% of the mixture being heroin. Unlike the cocaine mixture, the heroin mixture was packaged within the tinfoil wrapping in small double glassine bags; in the single tinfoil package there were 11 bundles of bags, each bundle containing 25 bags (a total of 275 bags). There were no federal tax stamps affixed to the package containing the cocaine or to the glassine bags or outer wrapper enclosing the heroin.Petitioner was indicted on two counts relating to the heroin and two counts relating to the cocaine. The first count charged that Turner violated 21 U.S.C. § 174 [Footnote 1] Page 396 U. S. 402 by receiving, concealing, and facilitating the transportation and concealment of heroin while knowing that the heroin had been unlawfully imported into the United States. The third count charged the same offense with regard to the cocaine seized. The second count charged that petitioner purchased, possessed, dispensed, and distributed heroin not in or from the original stamped package in violation of 26 U.S.C. § 4704(a). [Footnote 2] The fourth count made the same charge with regard to the cocaine. At the trial, the Government presented the evidence of the seizure of the packages containing heroin and cocaine, but presented no evidence on the origin of the drugs possessed by petitioner. Petitioner did not testify. With regard to Counts 1 and 3, the trial judge charged the jury, in accord with the statute, that the jury could infer from petitioner's unexplained possession of the heroin and cocaine that petitioner knew that the drugs he possessed had been unlawfully imported. With regard to Counts 2 and 4, the trial judge read to the jury the statutory provision making possession of drugs not in a stamped package "prima facie evidence" that the defendant purchased, sold, dispensed, or distributed Page 396 U. S. 403 the drugs not in or from a stamped package. The jury returned a verdict of guilty on each count. Petitioner was sentenced to consecutive terms of 10 years' imprisonment on the first and third counts; a five-year term on the second count was to run concurrently with the term on the first count, and a five-year term on the fourth count was to run concurrently with the term on the third count.On appeal to the Court of Appeals for the Third Circuit, petitioner argued that the trial court's instructions on the inferences that the jury might draw from unexplained possession of the drugs constituted violations of his privilege against self-incrimination by penalizing him for not testifying about his possession of the drugs. The Court of Appeals rejected this claim and affirmed, finding that the inferences from possession authorized by the statutes were permissible under prior decisions of this Court and that, therefore, there was no impermissible penalty imposed on petitioner's exercise of his right not to testify. 404 F.2d 782 (1968). After the Court of Appeals' decision in this case, this Court held that a similar statutory presumption applicable to the possession of marihuana was unconstitutional as not having a sufficient rational basis. Leary v. United States, 395 U. S. 6 (1969). We granted a writ of certiorari in this case to reconsider, in light of our decision in Leary, whether the inferences authorized by the statutes here at issue are constitutionally permissible when applied to the possession of heroin and cocaine. 395 U.S. 933.IThe statutory inference created by § 174 has been upheld by this Court with respect to opium and heroin, Yee Hem v. United States, 268 U. S. 178 (1925); Roviaro v. United States, 353 U. S. 53 (1957), as well as by an Page 396 U. S. 404 unbroken line of cases in the courts of appeals. [Footnote 3] Similarly, in a case involving morphine, this Court has rejected a constitutional challenge to the inference authorized by § 4704(a). Casey v. United States, 276 U. S. 413 (1928).Leary v. United States, supra, dealt with a statute, 21 U.S.C. § 176a, providing that possession of marihuana, unless explained to the jury's satisfaction, "shall be deemed sufficient evidence to authorize conviction" for smuggling, receiving, concealing, buying, selling, or facilitating the transportation, concealment, or sale of the drug, knowing that it had bee illegally imported. Referring to prior cases [Footnote 4] holding that a statue authorizing the inference of one fact from the proof of another in criminal cases must be subjected to scrutiny by the courts to prevent "conviction upon insufficient proof," 395 U.S. at 395 U. S. 37, the Court read those cases as Page 396 U. S. 405 requiring the invalidation of the statutorily authorized inference"unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend."395 U.S. at 395 U. S. 36. Since, judged by this standard, the inference drawn from the possession of marihuana was invalid, it was unnecessary to"reach the question whether a criminal presumption which passes muster when so judged must also satisfy the criminal 'reasonable doubt' standard if proof of the crime charged or an essential element thereof depends upon its use."395 U.S. at 395 U. S. 36 n. 64.We affirm Turner's convictions under § § 174 and 4704(a) with respect to heroin (Counts 1 and 2), but reverse the convictions under these sections with respect to cocaine (Counts 3 and 4).IIWe turn first to the conviction for trafficking in heroin in violation of § 174. Count 1 charged Turner with (1) knowingly receiving, concealing, and transporting heroin which (2) was illegally imported and which (3) he knew was illegally imported. See Harris v. United States, 359 U. S. 19, 359 U. S. 23 (1959). For conviction, it was necessary for the Government to prove each of these three elements of the crime to the satisfaction of the jury beyond a reasonable doubt. The jury was so instructed, and Turner was found guilty.The proof was that Turner had knowingly possessed heroin; since it is illegal to import heroin or to manufacture it here, [Footnote 5] he was also chargeable with knowing that his heroin had an illegal source. For all practical purposes, this was the Government's case. The trial judge, noting that there was no other evidence of importation Page 396 U. S. 406 or of Turner's knowledge that his heroin had come from abroad, followed the usual practice and instructed the jury -- as § 174 permits, but does not require, that possession of a narcotic drug is sufficient evidence to justify conviction of the crime defined in § 174. [Footnote 6]The jury, however, even if it believed Turner had possessed heroin, was not required by the instructions to find him guilty. The jury was instructed that it was the sole judge of the facts and the inferences to be drawn therefrom, that all elements of the crime must be proved beyond a reasonable doubt, and that the inference authorized by the statute did not require the defendant to present evidence. To convict, the jury was informed, it "must be satisfied by the totality of the evidence irrespective Page 396 U. S. 407 of the source from which it comes of the guilt of the defendant. . . ." The jury was obligated by its instructions to assess for itself the probative force of possession and the weight, if any, to be accorded the statutory inference. If it is true, as the Government contends, that heroin is not produced in the United States and that any heroin possessed here must have originated abroad, the jury, based on its own store of knowledge, may well have shared this view and concluded that Turner was equally well informed. Alternatively, the jury may have been without its own information concerning the sources of heroin, and may have convicted Turner in reliance on the inference permitted by the statute, perhaps reasoning that the statute represented an official determination that heroin is not a domestic product. [Footnote 7]Whatever course the jury took, it found Turner guilty beyond a reasonable doubt, and the question on review is the sufficiency of the evidence, or, more precisely, the soundness of inferring guilt from proof of possession alone. Since the jury might have relied heavily on the inferences authorized by the statute and included in the court's instructions, our primary focus is on the validity of the evidentiary rule contained in § 174. [Footnote 8] Page 396 U. S. 408We conclude first that the jury was wholly justified in accepting the legislative judgment -- if, in fact, that is what the jury did -- that possession of heroin is equivalent to possessing imported heroin. We have no reasonable doubt that, at the present time, heroin is not produced in this country, and that, therefore, the heroin Turner had was smuggled heroin.Section 174 or a similar provision has been the law since 1909. [Footnote 9] For 60 years, defendants charged under the Page 396 U. S. 409 statute have known that the section authorizes an inference of guilt from possession alone, that the inference is rebuttable by evidence that their heroin originated here, and that the inference itself is subject to challenge for lack of sufficient connection between the proved fact of possession and the presumed fact that theirs was smuggled merchandise. Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 219 U. S. 43 (1910). Given the statutory inference and absent rebuttal evidence, as far as a defendant is concerned, the § 174 crime is the knowing possession of heroin. Hence, if he is to avoid conviction, he faces the urgent necessity either to rebut or to challenge successfully the possession inference by demonstrating the fact or the likelihood of a domestic source for heroin, not necessarily by his own testimony, but through the testimony of others who are familiar with the traffic in drugs, whether government agents or private experts. Over the years, thousands of defendants, most of them represented by retained or appointed counsel, have been convicted under 174. Although there was opportunity in every case to challenge or rebut the inference based on possession, we are cited to no case, and we know of none, where substantial evidence showing domestic production of heroin has come to light. Instead, the inference authorized by the section, although frequently challenged, has been upheld in this Court and in countless cases in the district courts and courts of appeals, these cases implicitly reflecting the prevailing judicial view that heroin is not made in this country, but rather is imported from abroad. If this view is erroneous and heroin is or has Page 396 U. S. 410 been produced in this country in commercial quantities, it is difficult to believe that resourceful lawyers with adversary proceedings at their disposal would not long since have discovered the truth and placed it on record.This view is supported by other official sources. In 1956, after extensive hearings, the Senate Committee on the Judiciary found no evidence that heroin is produced commercially in this country. [Footnote 10] The President's Commission on Law Enforcement and Administration of Justice stated in 1967 that"[a]ll the heroin that reaches the American user is smuggled into the country from Page 396 U. S. 411 abroad, the Middle East being the reputed primary point of origin. [Footnote 11]"The factors underlying these judgments may be summarized as follows: first, it is plain enough that it is illegal both to import heroin into this country [Footnote 12] and to manufacture it here; [Footnote 13] heroin is contraband, and is subject to seizure. [Footnote 14]Second, heroin is a derivative of opium and can be manufactured from opium or from morphine or codeine, Page 396 U. S. 412 which are also derived from opium. [Footnote 15] Whether heroin can be synthesized is disputed, but there is no evidence that it is being synthesized in this country. [Footnote 16]Third, opium is derived from the opium poppy, which cannot be grown in this country without a license. [Footnote 17] No licenses are outstanding for commercial cultivation, [Footnote 18] and Page 396 U. S. 413 there is no evidence that the opium poppy is illegally grown in the United States. [Footnote 19]Fourth, the law forbids the importation of any opium product except crude opium required for medical and scientific purposes; [Footnote 20] importation of crude opium for the purpose of making heroin is specifically forbidden. [Footnote 21] Sizable amounts of crude opium are legally imported and used to make morphine and codeine. [Footnote 22]Fifth, the flow of legally imported opium and of legally manufactured morphine and codeine is controlled too tightly to permit any significant possibility that heroin is manufactured or distributed by those legally licensed to deal in opium, morphine, or codeine. [Footnote 23] Page 396 U. S. 414Sixth, there are recurring thefts of opium, morphine, and codeine from legal channels which could be used for the domestic, clandestine production of heroin. [Footnote 24] It is extremely unlikely that heroin would be made from codeine, since the process involved produces an unmanageable, penetrating stench which it would be very difficult to conceal. [Footnote 25] Clandestine manufacture of heroin from opium and morphine would not be subject to this difficulty; but, even on the extremely unlikely assumption that all opium and morphine stolen each year is used to manufacture heroin, the heroin so produced would amount to only a tiny fraction (less than 1%) of the illicit heroin illegally imported and marketed here. [Footnote 26] Moreover, a clandestine laboratory manufacturing Page 396 U. S. 415 heroin has not been discovered in many years. [Footnote 27]Concededly, heroin could be made in this country, at least in tiny amounts. But the overwhelming evidence is that the heroin consumed in the United States Page 396 U. S. 416 is illegally imported. To possess heroin is to possess imported heroin. Whether judged by the "more likely than not" standard applied in Leary v. United States, supra, or by the more exacting reasonable doubt standard normally applicable in criminal cases, § 174 is valid insofar as it permits a jury to infer that heroin possessed in this country is a smuggled drug. If the jury relied on the § 174 instruction, it was entitled to do so. [Footnote 28]Given the fact that little if any heroin is made in the United States, Turner doubtless knew that the heroin he had came from abroad. There is no proof that he had specific knowledge of who smuggled his heroin or when or how the smuggling was done, but we are confident that he was aware of the "high probability" that the heroin in his possession had originated in a foreign country. Cf. Leary v. United States, supra, at 395 U. S. 45-53. [Footnote 29]It may be that the ordinary jury would not always know that heroin illegally circulating in this country is not manufactured here. But Turner and others who sell or distribute heroin are in a class apart. [Footnote 30] Such Page 396 U. S. 417 people have regular contact with a drug which they know cannot be legally bought or sold; their livelihood depends on its availability; some of them have actually engaged in the smuggling process. The price, supply, and quality vary widely; [Footnote 31] the market fluctuates with the ability of smugglers to outwit customs and narcotics agents at home and abroad. [Footnote 32] The facts concerning heroin are available from many sources, frequently in the popular media. "Common sense" (Leary v. United States, supra, at 395 U. S. 46) tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled, [Footnote 33] unless they practice a studied ignorance to which they are not entitled. [Footnote 34] We therefore have little doubt that the inference of knowledge from the fact of possessing smuggled heroin is a sound one; hence, the court's instructions on the inference did not violate the right of Turner to be convicted only on a finding of guilt Page 396 U. S. 418 beyond a reasonable doubt, and did not place impermissible pressure upon him to testify in his own defense. [Footnote 35] His conviction on Count 1 must be affirmed.IIITurning to the same § 174 presumption with respect to cocaine, we reach a contrary result. In Erwing v. United States, 323 F.2d 674 (C.A. 9th Cir.1963), a case involving a prosecution for dealing in cocaine, two experts had testified, one for the Government and one for the defense. It was apparent from the testimony that, while it is illegal to import cocaine, coca leaves, from which cocaine is prepared, are legally imported for processing into cocaine to be used for medical purposes. There was no evidence that sizable amounts of cocaine are either legally imported or smuggled. The trial court instructed on the § 174 presumption, and conviction followed, but the Court of Appeals for the Ninth Circuit reversed, finding the presumption insufficiently sound to permit conviction.Supplementing the facts presented in Erwing, supra, the United States now asserts that substantial amounts of cocaine are smuggled into the United States. However, much more cocaine is lawfully produced in this country than is smuggled into this country. [Footnote 36] The United States Page 396 U. S. 419 concedes that thefts from legal sources, though totaling considerably less than the total smuggled, [Footnote 37] are still sufficiently large to make the § 174 presumption invalid as applied to Turner's possession of cocaine. [Footnote 38] Based on our own examination of the facts now before us, we reach the same conclusion. Applying the "more likely than not" standard employed in Leary, supra, we cannot be sufficiently sure either that the cocaine that Turner possessed came from abroad or that Turner must have known that it did. The judgment on Count 3 must be reversed. [Footnote 39]IV26 U.S.C. § 4704(a) [Footnote 40] makes it unlawful to purchase, sell, dispense, or distribute a narcotic drug not in or from the original package bearing tax stamps. In this case, Count 2 charged that Turner knowingly purchased, dispensed, and distributed heroin hydrochloride not in or Page 396 U. S. 420 from the original stamped package. [Footnote 41] Count 4 made the identical charge with respect to cocaine. Section 474(a) also provides that the absence of appropriate tax stamps shall be prima facie evidence of a violation by the person in whose possession the drugs are found. This provision was read by the trial judge to the jury. The conviction on Count 2 with respect to heroin must be affirmed. Since the only evidence of a violation involving heroin was Turner's possession of the drug, the jury, to convict, must have believed this evidence. But part and parcel of the possession evidence, and indivisibly linked with it, was the fact that Turner possessed some 275 glassine bags of heroin without revenue stamps attached. This evidence, without more, solidly established that Turner's heroin was packaged to supply individual demands, and was in the process of being distributed, an act barred by the statute. The general rule is that, when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner's indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged. [Footnote 42] Here, the evidence proved Turner was distributing heroin. The status of the case with respect to the other allegations is irrelevant to the Page 396 U. S. 421 validity of Turner's conviction. So, too, the instruction on the presumption is beside the point, since, even if invalid, it was harmless error; the jury must have believed the possession evidence which, in itself, established a distribution barred by the statute.Moreover, even if the evidence as to possession is viewed as not, in itself, proving that Turner was distributing heroin, his conviction must be affirmed. True, the statutory inference, which, on this assumption, would assume critical importance, could not be sustained insofar as it authorized an inference of dispensing or distributing (or of selling if that act had been charged), for the bare fact of possessing heroin is far short of sufficient evidence from which to infer any of these acts. Cf. Tot v. United States, 319 U. S. 463 (1943); United States v. Romano, 382 U. S. 136 (1965). But the inference of purchasing in or from an unstamped package is another matter.Those possessing heroin have secured it from some source. The act of possessing is itself sufficient proof that the possessor has not received it in or from the original stamped package, since it is so extremely unlikely that a package containing heroin would ever be legally stamped. All heroin found in this country is illegally imported. Those handling narcotics must register; [Footnote 43] registered persons do not deal in heroin, and only registered importers and manufacturers are permitted to purchase stamps. [Footnote 44] For heroin to be found in a stamped package, stamps would have to be stolen and fixed to the heroin container, and even then the stamps would immunize the transactions in the drug only from prosecution under § 4704(a); all other laws against transactions in heroin would be unaffected by the presence of the stamps. Page 396 U. S. 422 There can thus be no reasonable doubt that one who possesses heroin did not obtain it from a stamped package.Even so, obtaining heroin other than in the original stamped package is not a crime under § 4704(a). Of the various ways of acquiring heroin, e.g., by gift, theft, bailment or purchase, only purchasing is proscribed by the section. Since heroin is a high-priced product, [Footnote 45] it would be very unreasonable to assume that any sizable number of possessors have not paid for it, one way or another. Perhaps a few acquire it by gift, and some heroin undoubtedly is stolen, but most users may be presumed to purchase what they use. The same may be said for those who sell, dispense, or distribute the drug. There is no reasonable doubt that a possessor of heroin who has purchased it did not purchase the heroin in or from the original stamped package. We thus would sustain the conviction on Count 2 on the basis of a purchase not in or from a stamped package even if the evidence of packaging did not point unequivocally to the conclusion that Turner was distributing heroin not in a stamped package.VFinally, we consider the validity of the § 470(a) presumption with respect to cocaine. The evidence was that, while in the custody of the police, Turner threw away a tinfoil package containing a mixture of cocaine and sugar, which, according to the Government, is not the form in which cocaine is distributed for medicinal purposes. [Footnote 46] Unquestionably, possession was amply proved by the evidence, which the jury must have believed, since it returned a verdict of guilty. But the Page 396 U. S. 423 evidence with respect to Turner's possession of cocaine does not so surely demonstrate that Turner was in the process of distributing this drug. Would the jury automatically and unequivocally know that Turner was distributing cocaine simply from the fact that he had 14.68 grams of a cocaine and sugar mixture? True, his possession of heroin proved that he was dealing in drugs, but having a small quantity of a cocaine and sugar mixture is itself consistent with Turner's possessing the cocaine not for sale but exclusively for his personal use.Since Turner's possession of cocaine did not constitute an act of purchasing, dispensing, or distributing, the instruction on the statutory inference becomes critical. As in the case of heroin, bare possession of cocaine is an insufficient predicate for concluding that Turner was dispensing or distributing. As for the remaining possible violation, purchasing other than in or from the original stamped package, the presumption, valid as to heroin, is infirm as to cocaine.While one can be confident that cocaine illegally manufactured from smuggled coca leaves or illegally imported after manufacturing would not appear in a stamped package at any time, cocaine, unlike heroin, is legally manufactured in this country; [Footnote 47] and we have held that sufficient amounts of cocaine are stolen from legal channels to render invalid the inference authorized in § 174 that any cocaine possessed in the United States is smuggled cocaine. Supra at 396 U. S. 418-419. Similar reasoning undermines the § 4704(a) presumption that a defendant's possession of unstamped cocaine is prima facie evidence that the drug was purchased not in or from the original stamped container. The thief who steals cocaine very probably obtains it in or from a stamped package. There is a reasonable possibility that Turner Page 396 U. S. 424 either stole the cocaine himself or obtained it from a stamped package in possession of the actual thief. The possibility is sufficiently real that a conviction resting on the § 4704(a) presumption cannot be deemed a conviction based on sufficient evidence. To the extent that Casey v. United States, 276 U. S. 413 (1928), is read as giving general approval to the § 4704(a) presumption, it is necessarily limited by our decision today. Turner's conviction on Count 4 must be reversed.For the reasons stated above, we affirm the judgment of conviction as to Counts 1 and 2 and reverse the judgment of conviction as to Counts 3 and 4.It is so ordered

U.S. Supreme CourtTurner v. United States, 396 U.S. 398 (1970)Turner v. United StatesNo.190Argued October 15, 1969Decided January 20, 1970396 U.S. 398SyllabusNarcotics agents stopped a car in which petitioner was riding and found a package, which petitioner had thrown away, containing about 15 grams of a cocaine and sugar mixture, 5% of which was cocaine, and a package in the car weighing about 48 grams consisting of a total of 275 glassine bags containing a heroin mixture, 15.2% of which was heroin. Petitioner was indicted and convicted of four narcotics violations: (1) knowingly receiving, concealing, and facilitating the transportation and concealment of heroin knowing the heroin had been illegally imported into the United States, in violation of 21 U.S.C. § 174; (2) knowingly purchasing, possessing, dispensing, and distributing heroin not in or from the original stamped package, in violation of 26 U.S.C. § 4704(a); (3) same as the first offense with regard to the cocaine seized, and (4) same as the second offense with regard to the cocaine. At the trial, the Government presented evidence of the seizure of the package, but offered no evidence on the origin of the drugs, and petitioner did not testify. Section 174 provides that, when a"defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."Section 4704(a) states that:"It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package, and the absence of appropriate tax-paid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection. . . ."With respect to the first and third offenses, the trial judge charged the jury, in accord with § 174, that it could infer from petitioner's unexplained possession of the heroin and cocaine that petitioner knew the drugs had been illegally imported. With respect to the second and fourth offenses, the trial judge read to the jury the prima facie evidence provision of § 4704(a). In the Court of Appeals, petitioner argued that the judge's instructions on the inferences that the jury might draw from unexplained possession of the drugs violated his privilege Page 396 U. S. 399 against self-incrimination by penalizing him for not testifying. The Court of Appeals rejected this claim and affirmed, finding that the inferences were permissible under prior decisions.Held:1. The trial court's instructions on the inference that might be drawn under § 174 with respect to petitioner's possession of heroin did not violate his right to be convicted only on a finding of guilt beyond a reasonable doubt, and did not place impermissible pressure on him to testify in his own defense. Pp. 396 U. S. 405-418.(a) Since it is abundantly clear that little, if any, heroin is made in this country, and that, therefore, virtually all heroin consumed in the United States is illegally imported, § 174 is valid insofar as it permits a jury to infer that heroin possessed here is a smuggled drug, whether judged by the "more likely than not" standard applied in Leary v. United States, 395 U. S. 6, or by the more exacting reasonable doubt standard. Pp. 396 U. S. 408-416.(b) While there is no proof that petitioner knew who smuggled his heroin or how the smuggling was done, he, like others who sell or distribute the drug, was undoubtedly aware of the "high probability" that the heroin in his possession originated in a foreign country. Pp. 396 U. S. 416-418.2. The presumption under § 174 will not support petitioner's conviction with respect to the possession of cocaine, as the facts show that much more cocaine is lawfully produced in, than is smuggled into, this country, and that the amount of cocaine stolen from legal sources is sufficiently large to negate the inference that petitioner's cocaine came from abroad or that he must have known that it did. Pp. 396 U. S. 418-419.3. The conviction under § 4704(a) with respect to heroin is affirmed. Pp. 396 U. S. 419-422.(a) The evidence that petitioner possessed the heroin packaged in 275 glassine bags without revenue stamps attached established that the heroin was in the process of being distributed, an act proscribed by the statute. P. 396 U. S. 420.(b) When a jury returns a guilty verdict on a count charging several acts in the conjunctive, as here, the verdict normally stands if evidence is sufficient with respect to any one of the acts charged. P. 396 U. S. 420.(c) The conviction can also be sustained on the basis of the inference in § 4704(a) of purchasing the heroin not in or from a stamped package, as there is no reasonable doubt that the possessor of heroin, who presumably purchased it, did not purchase Page 396 U. S. 400 it in or from an original stamped package in view of the fact that no lawfully manufactured or lawfully imported heroin is found in this country. Pp. 396 U. S. 421-422.4. Petitioner's conviction with respect to cocaine based on the § 4704(a) inference is not based upon sufficient evidence. Pp. 396 U. S. 422-424.(a) Petitioner's bare possession of a small quantity of a cocaine and sugar mixture does not establish that he was dispensing or distributing the drug. P. 396 U. S. 423.(b) The possibility that petitioner either stole the cocaine in or from a stamped package or obtained it from a stamped package in the possession of a thief is sufficiently real that a conviction cannot be rested solely upon the presumption. Pp. 396 U. S. 423-424.(c) To the extent that Casey v. United States, 276 U. S. 413, gives general approval to the § 4704(a) presumption, it is limited by this decision. P. 396 U. S. 424.404 F.2d 782, affirmed in part and reversed in part.

1962_31

MR. JUSTICE CLARK delivered the opinion of the Court.This injunction suit, filed in 1947 by water right claimants along the San Joaquin River below Friant Dam, California, and against local officials of the United States Bureau of Reclamation, a number of Irrigation and Utility Districts and, subsequently, against the United States as well, sought to prevent the storing and diverting of water at the dam, which is part of the Central Valley Reclamation Project. 50 Stat. 844, 850 (1937). See United States v. Gerlach Live Stock Co., 339 U. S. 725 (1950). The defense interposed was that the suit was against the United States and, therefore, beyond the jurisdiction of the courts, it not having consented to be sued. In 1956, the District Court ordered the injunction issued unless the Government constructed a "physical solution" [Footnote 1] Page 372 U. S. 611 which would afford the landowners a supply of water simulating that of the past. Rank v. Krug, 142 F. Supp. 1. The Court of Appeals reversed as to the United States, finding that it had not consented to be sued. However, as to the officials, it affirmed on the ground that the United States had neither acquired nor taken the claimed water rights, and that the officials were therefore acting beyond their statutory authority. California v. Rank, 293 F.2d 340 and 307 F.2d 96. No. 31 is the petition of the local Reclamation Bureau officials, and No. 115 is that of the Irrigation and Utility Districts. Both cases proceed from the same Court of Appeals opinion. The importance of the question to the operation of this vast federal reclamation project led us to grant certiorari. 369 U.S. 836 and 370 U.S. 936. We have concluded that the Court of Appeals was correct in dismissing the suit against the United States; that the suit against the petitioning local officials of the Reclamation Bureau is in fact against the United States, and they must be dismissed therefrom; that the United States either owned or has acquired or taken the water rights involved in the suit, and that any relief to which the respondents may be entitled by reason of such taking is by suit against the United States under the Tucker Act, 28 U.S.C. § 1346. These conclusions lead to a reversal of the judgment insofar as suit was permitted against the United States through Bureau officials.I. ASPECT OF THE CENTRAL VALLEY RECLAMATIONPROJECT INVOLVEDThe Project was authorized by the Congress and undertaken by the Bureau of Reclamation of the Department of the Interior pursuant to the Act of August 26, 1937, 50 Stat. 844, 850. It is generally described in sufficient detail for our purposes in United States v. Gerlach Live Stock Co., supra, and Ivanhoe Irrigation District v. McCracken, 357 U. S. 275 (1958). See Graham, The Central Page 372 U. S. 612 Valley Project: Resource Development of a Natural Basin, 38 Cal.L.Rev. 588, 591 (1950), for a description and citation of federal authorizations.The grand design of the Project was to conserve and put to maximum beneficial use the waters of the Central Valley of California, [Footnote 2] comprising a third of the State's territory, and the bowl of which starts in the northern part of the State and, averaging more than 100 miles in width, extends southward some 450 miles. The northern portion of the bowl is the Sacramento Valley, containing the Sacramento River, and the southern portion is the San Joaquin Valley, containing the San Joaquin River. The Sacramento River rises in the extreme north, runs southerly to the City of Sacramento and then on into San Francisco Bay and the Pacific Ocean. The San Joaquin River rises in the Sierra Nevada northeast of Fresno, runs westerly to Mendota and then northwesterly to the Sacramento-San Joaquin Delta, where it joins the Sacramento River. The Sacramento River, because of heavier rainfall in its watershed, has surplus water, but its valley has little available tillable soil, while the San Joaquin is in the contrary situation. An imaginative engineering feat has transported some of the Sacramento surplus to the San Joaquin scarcity, and permitted the waters of the latter river to be diverted to new areas for irrigation and other needs. This transportation of Sacramento water is accomplished by pumping water from the Sacramento-San Joaquin Delta into the Delta-Mendota Canal, a lift of some 200 feet. The water then flows by gravity through this canal along the west side of the San Joaquin Valley southerly to Mendota, some 117 miles, where it is discharged Page 372 U. S. 613 into the San Joaquin River. The waters of the San Joaquin River are impounded by a dam constructed at Friant, approximately 60 miles upstream from Mendota. Friant Dam stores the water in Millerton Lake, from which it is diverted by the Madera Canal on the north to Madera County and the Friant-Kern Canal on the south to the vicinity of Bakersfield for use in those areas for irrigation and other public purposes.The river bed at Friant is at a level approximately 240 Feet higher than at Mendota, 142 F. Supp. 173, which prevents the Sacramento water from being carried further upstream and replenishing the San Joaquin in the 60-mile area between Mendota and Friant Dam, thereby furnishing Sacramento River water for the entire length of the San Joaquin below Friant Dam. This 60-mile stretch of the San Joaquin -- and, more particularly, that between Friant Dam and Gravelly Ford, 37 miles downstream -- is the approximate area involved in this litigation. It has been the subject of cooperative studies by the state, local, and federal governments for many years. Indeed, the initial planning of the Project recognized, as indicated by the engineering studies included in the plan, that the water flow on the San Joaquin between Friant Dam and Mendota would be severely diminished. See 18 Op.Cal.Atty.Gen. 31, 33-34 (1951). All of the parties recognized the existence of water rights in the area and the necessity to accommodate or extinguish them. Report No. 3, Calif. Water Project Authority, Definition of Rights to the Waters of the San Joaquin River Proposed for Diversion to Upper San Joaquin Valley, 1-2 (1936). The principal alternative, as shown by the reports of the United States Reclamation Bureau to the Congress and the subsequent appropriations of the Congress, was to purchase or pay for infringement of these rights. As early as 1939, the Government entered into negotiations ultimately culminating in the purchase of Page 372 U. S. 614 water rights or agreements for substitute diversions or periodic releases of water from Friant Dam into the San Joaquin River. Graham, The Central Valley Project: Resource Development of a Natural Basin, supra. As of 1952, the United States had entered into 215 contracts of this nature involving almost 12,000 acres, of which contracts some 100 require the United States to maintain a live stream of water in the river.However, agreements could not be reached with some of the claimants along this reach of the river, and this suit resulted.II. HISTORY OF THE LITIGATIONThe suit was filed in 1947, and has been both costly and protracted. [Footnote 3] It involves some 325,000 acres of land including a portion of the City of Fresno. See map in 142 F. Supp. at 40. Originally filed in the Superior Court of California, it sought to enjoin local officials of the United States Reclamation Bureau from storing or diverting water to the San Joaquin at Friant Dam or, in the alternative, to obtain a decree of a physical solution of water rights. The action was removed to the United States District Court for the Southern District of California. The named plaintiffs claimed to represent a class of owners of riparian as well as other types of water rights. In Page 372 U. S. 615 addition to the local officials of the Reclamation Bureau, two of the Irrigation Districts receiving diverted water from Millerton Lake were originally made defendants, and later the other Irrigation and Utility District defendants were joined.The complaint challenged the constitutional authority of the United States to operate the Project. A three-judge court was impaneled pursuant to 28 U.S.C. § 2282, and it decided this issue presented no substantial constitutional question. Rank v. Krug, 90 F. Supp. 773 (D.C.S.D.Cal.1950). This left undecided the question of whether the Secretary of the Interior and Bureau of Reclamation officials had statutory authority to acquire the water rights involved. The issue remained dormant until the Delta-Mendota Canal was completed in 1951, 142 F. Supp. at 45, and the Government began to reduce the flow of water through Friant Dam. By consent, temporary restraining orders were entered controlling the releases covering the years 1951, 1952, and part of 1953. In June of the latter year, the United States withdrew its consent with the approval of the Court of Appeals, United States v. United States District Court, 206 F.2d 303. The District Court then ordered the United States joined as a party on the basis of the McCarran amendment, Act of July 10, 1952, 66 Stat. 560, 43 U.S.C. § 666, infra, n. 5. Friant Dam has, however, been operated by the United States without judicial interference since June 30, 1953.The District Court announced its opinion in the case on February 7, 1956, 142 F. Supp. 1, and the judgment was entered the next year. It declared the water rights of all of the claimants, the members of the class they claimed to represent, and the intervenors, Tranquility Irrigation District and the City of Fresno, as against the United States, the Reclamation Bureau officers and the Districts. It did not grant relief as between individual Page 372 U. S. 616 claimants of water rights or adjudicate the priority of these rights among them. 142 F. Supp. at 36. The judgment declared that the claimants"have been, now are, and will be entitled to the full natural flow of the San Joaquin River past Friant at all times . . . unless and until the physical solution herein elsewhere described is erected and constructed [by the defendants] within a reasonable time, and thereafter operated as herein elsewhere set forth."Transcript of Record, Vol. III, p. 993. The physical solution was a series of 10 small dams to be built at the expense of the United States along the stretch of river involved the the purpose of keeping the water at a level "equivalent" to the natural flow, 142 F. Supp. at 166, or to simulate it at a flow of 2,000 feet per second. 142 F. Supp. at 169.In summary, the court held that the United States was a proper party under the McCarran amendment; that the claimants had vested rights to the full natural flow of the river superior to any rights of the United States or other defendants; that the operation of Friant Dam does not permit sufficient water to pass down the river to satisfy these rights; that Congress has not authorized the taking of these rights by physical seizure, but only by eminent domain exercised through judicial proceedings; that, as a consequence, the impounding at Friant Dam constitutes an unauthorized and unlawful invasion of rights for which damages are not adequate recompense; that this requires all of the defendants, including the United States, to be enjoined from storing or diverting or otherwise impeding the full natural flow of the San Joaquin at Friant Dam unless, within a reasonable time and at its own expense, the United States, or the Districts, build the dams aforesaid and put them into operation; that Page 372 U. S. 617 the United States is subject to the California county of origin and watershed of origin statutes, Calif. Water Code § 10505, and §§ 11460-11463, and must first satisfy at the same charge as made for agricultural water service the full needs of the City of Fresno and Tranquility Irrigation District before diverting San Joaquin water to other areas; and finally that the United States is also subject to Calif. Water Code §§ 106 and 106.5 as to domestic use water priority and the power of municipalities to acquire and hold water rights. [Footnote 4]The Court of Appeals reversed as to the joinder of the United States, holding that it could not be made a party without its consent. It likewise found that the United States was authorized to acquire, either by physical seizure or otherwise, such of the rights of the claimants as it needed to operate the Project, and that this power could not be restricted by state law. However, it found that no such authorized seizure had occurred, because the Government had not sufficiently identified what rights it was seizing, and, because of this equivocation of the federal officials, there was a trespass, rather than a taking. It concluded, therefore, that the petitioner Reclamation Bureau officials had acted beyond their statutory authority, and affirmed the injunctive features of the judgment. On rehearing, the injunction was modified to make it inapplicable to the petitioner Districts in No. 115, but the court refused to dismiss as to them.III. THE UNITED STATES AS A PARTYWe go directly to the question of joinder of the United States as a party. We agree with the Court of Appeals on this issue, and therefore do not consider the contention Page 372 U. S. 618 at length. It is sufficient to say that the provision of the McCarran amendment, 66 Stat. 560, 43 U.S.C. § 666, [Footnote 5] relied upon by respondents and providing that the United States may be joined in suits "for the adjudication of rights to the use of water of a river system or other source," is not applicable here. Rather than a case involving a general adjudication of "all of the rights of various owners on a given stream," S.Rep.No. 755, 82d Cong., 1st Sess. 9 (1951), it is a private suit to determine water rights solely between the respondents and the United States and the local Reclamation Bureau officials. In addition to the fact that all of the claimants to water rights along the river are not made parties, no relief is either asked or granted as between claimants, nor are priorities sought to Page 372 U. S. 619 be established as to the appropriative and prescriptive rights asserted. But because of the presence of local Reclamation Bureau officials and the nature of the relief granted against them, the failure of the action against the United States does not end the matter. We must yet deal with the holding of the Court of Appeals that the suit against these officials is not one against the United States.IV. RELIEF GRANTED AGAINST FEDERAL OFFICERSThe Court of Appeals correctly held that the United States was empowered to acquire the water rights of respondents by physical seizure. As early as 1937, by the Rivers and Harbors Act, 50 Stat. 844, 850, the Congress had provided that the Secretary of the Interior"may acquire by proceedings in eminent domain, or otherwise, all lands, rights-of-way, water rights, and other property necessary for said purposes. . . ."Likewise, in United States v. Gerlach Live Stock Co., supra, this Court implicitly recognized that such rights were subject to seizure when we held that Gerlach and others were entitled to compensation therefor. The question was specifically settled in Ivanhoe Irrigation District v. McCracken, supra, where we said that such rights could be acquired by the payment of compensation "either through condemnation or, if already taken, through action of the owners in the courts." 357 U.S. at 357 U. S. 291. However, the Court of Appeals, in examining the extent of the taking here, concluded that, rather than an authorized taking of water rights, the action of the Reclamation Bureau officials constituted an unauthorized trespass. The court observed that the San Joaquin "will not be dried up" below Friant, because the Government has contracted with other water right owners to maintain "a live stream," and, as the flow of water varies from day to day, the respondents do not now and never Page 372 U. S. 620 will know what part of their claimed water rights the Government has taken or will take."A casual day by day taking under these circumstances constitutes day to day trespass upon the water right. . . . The cloud cast prospectively on the water right by the assertion of a power to take creates a present injury above what has been suffered by the interference itself -- a present loss in property value which cannot be compensated until it can be measured."293 F.2d at 358. The court, therefore, permitted the suit against the petitioning Reclamation Bureau officers as one in trespass, which led it to affirm, with modification, the injunctive relief granted by the District Court.Rather than a trespass, we conclude that there was, under respondents' allegations, a partial taking of respondents' claimed rights. We believe that the Court of Appeals incorrectly applied the principle of Larson v. Domestic & Foreign Corp., 337 U. S. 682 (1949), and other cases in the field of sovereign immunity. The general rule is that a suit is against the sovereign if "the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration," Land v. Dollar, 330 U. S. 731, 330 U. S. 738 (1947), or if the effect of the judgment would be "to restrain the Government from acting, or to compel it to act." Larson v. Domestic & Foreign Corp., supra, at 337 U. S. 704; Ex parte New York, 256 U. S. 490, 256 U. S. 502 (1921). The decree here enjoins the federal officials from"impounding, or diverting, or storing for diversion, or otherwise impeding or obstructing the full natural flow of the San Joaquin River. . . ."Transcript of Record, Vol. III, p. 1021. As the Court of Appeals found, the Project "could not operate without impairing, to some degree, the full natural flow of the river." Experience of over a decade along the stretch Page 372 U. S. 621 of the San Joaquin involved here indicates clearly that the impairment was most substantial -- almost three-fourths of the natural flow of the river. To require the full natural flow of the river to go through the dam would force the abandonment of this portion of a project which has not only been fully authorized by the Congress, but paid for through its continuing appropriations. Moreover, it would prevent the fulfillment of the contracts made by the United States with the Water and Utility Districts, which are petitioning in No. 115. The Government would, indeed, be "stopped in its tracks. . . ." Larson v. Domestic & Foreign Corp., supra, at 337 U. S. 704.The physical solution has no less direct effect. The Secretary of the Interior, the President, and the Congress have authorized the Project as now constructed and operated. Its plans do not include the 10 additional dams required by the physical solution to be built at government expense. The judgment, therefore, would not only "interfere with the public administration," but also "expend itself on the public treasury. . . ." Land v. Dollar, supra, at 330 U. S. 738. Moreover, the decree would require the United States -- contrary to the mandate of the Congress -- to dispose of valuable irrigation water and deprive it of the full use and control of its reclamation facilities. It is therefore readily apparent that the relief granted operates against the United States.Nor do we believe that the action of the Reclamation Bureau officials falls within either of the recognized exceptions to the above general rule, as reaffirmed only last Term. Malone v. Bowdoin, 369 U. S. 643. See Larson v. Domestic & Foreign Corp., supra; Santa Fe Pac. R. Co. v. Fall, 259 U. S. 197, 259 U. S. 199 (1922); Scranton v. Wheeler, 179 U. S. 141, 179 U. S. 152-153 (1900). Those exceptions are (1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised Page 372 U. S. 622 are constitutionally void. Malone v. Bowdoin, supra, at 369 U. S. 647. In either of such cases, the officer's action "can be made the basis of a suit for specific relief against the officer as an individual. . . ." Ibid. But the fact that the Court of Appeals characterized the action of the officers as a "trespass" does not at all establish that it was either unconstitutional or unauthorized. As this Court said in Larson, supra, at 337 U. S. 693:"The mere allegation that the officer, acting officially, wrongfully holds property to which the plaintiff has title does not meet [the] requirement [that it must also appear that the action to be restrained or directed is not action of the sovereign]. True, it establishes a wrong to the plaintiff. But it does not establish that the officer, in committing that wrong, is not exercising the powers delegated to him by the sovereign."And, the Court added:"the action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff's property) can be regarded as so 'illegal' as to permit a suit for a specific relief against the officer as an individual only if it is not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void."Id. at 337 U. S. 701-702. Since the Government, through its officers here, had the power, under authorization of Congress, to seize the property of the respondents, as held by the Court of Appeals and recognized by several cases in this Court, and this power of seizure was constitutionally permissible, as we held in Ivanhoe, supra, there can be no question that this case comes under the rule of Larson and Malone, supra. The power to seize which was granted here had no limitation placed upon it by the Congress, nor did the Court of Appeals Page 372 U. S. 623 bottom its conclusion on a finding of any limitation. Having plenary power to seize the whole of respondents' rights in carrying out the congressional mandate, the federal officers a fortiori had authority to seize less. It follows that if any part of respondents' claimed water rights were invaded, it amounted to an interference therewith and a taking thereof -- not a trespass.We find no substance to the contention that respondents were without knowledge of the interference or partial taking. Nor can we accept the view that the absence of specificity as to the amount of water to be taken prevents the assessment of damages in this case. From the very beginning, it was recognized that the operation of Friant Dam and its facilities would entail a taking of water rights below the dam. Indeed, it was obvious from the expressed purpose of the construction of the dam -- to store and divert to other areas the waters of the San Joaquin -- and the intention of the Government to purchase water rights along the river. [Footnote 6] Pursuant to this announced intention, the Government did, in fact, enter into numerous contracts for water rights, as we have previously noted. While it is true, as the Court of Appeals observed, that the Government did not announce that it was taking water rights to a specified number of "gallons" or, for that matter, "inches" of water, see 293 F.2d 340, 357-358, we do not think this quantitative uncertainty precludes ascertainment of the value of the taking. On this point, we conclude that the Court of Appeals was in error. We find no uncertainty in the taking.It is likely that an element of uncertainty may have been drawn by the Court of Appeals from the Secretary of the Interior's statement in a letter that the operation of Friant Dam "is an administrative one, voluntarily assumed and voluntarily to be executed." 293 F.2d 340, Page 372 U. S. 624 356, n. 8. This alone might present a picture of a spillway being opened and closed at the whim of the Secretary. We view this statement, however, as merely notice to the court that the Secretary intended to operate the water works fairly, but solely on his own, without court interference. Neither he nor the United States was a party. Even if the statement did introduce an element of uncertainty as to what exactly the Secretary might do, injunctive relief was not proper. Despite this caveat, damages were clearly ascertainable (see Collier v. Merced Irrigation District, 213 Cal. 554, 571-572, 2 P.2d 790, 797 (1931)), based partially on the Secretary's prior unequivocal statement regarding his plans as to the minimum flow of water to be released into the river below the dam. [Footnote 7] Parenthetically, we note that petitioners, in their brief at p. 12, inform us that"Friant Dam has since been operated in accordance with the Secretary's stated plan, subject to adjustments required by weather and other conditions."Damages in this instance are to be measured by the difference in market value of the respondents' land before Page 372 U. S. 625 and after the interference or partial taking. As the Supreme Court of California said in Collier v. Merced Irrigation District, supra, at 571-572, 2 P.2d at 797.". . . [T]he riparian right is a part and parcel of the land in a legal sense, yet it is a usufructuary and intangible right inhering therein and neither a partial nor a complete taking produces a disfigurement of the physical property. The only way to measure the injury done by an invasion of this right is to ascertain the depreciation in market value of the physical property. . . . There was a distinct conflict in the evidence as to whether the lands of appellant had a greater or a less market value after the taking by respondent, but there is no question of law arising on the evidence."The right claimed here is to the continued flow of water in the San Joaquin and to its use as it flows along the landowner's property. A seizure of water rights need not necessarily be a physical invasion of land. It may occur upstream, as here. Interference with or partial taking of water rights in the manner it was accomplished here might be analogized to interference or partial taking of air space over land, such as in our recent case of Griggs v. Allegheny County, 369 U. S. 84, 369 U. S. 89-90 (1962). See United States v. Causby, 328 U. S. 256, 328 U. S. 261-263, 328 U. S. 267 (1946); Portsmouth Co. v. United States, 260 U. S. 327, 260 U. S. 329 (1922). See also 1 Wiel, Water Rights in the Western States (3d ed. 1911), § 15; 2 Nichols, Eminent Domain (3d ed. 1950), § 6.3. Therefore, when the Government acted here "with the purpose and effect of subordinating" the respondents' water rights to the Project's uses "whenever it saw fit,""with the result of depriving the owner of its profitable use, [there was] the imposition of such a servitude [as] would constitute an appropriation of property for which compensation should be made."Peabody Page 372 U. S. 626 v. United States, 231 U. S. 530, 231 U. S. 538 (1913); Portsmouth Co. v. United States, supra, at 260 U. S. 329.In an appropriate proceeding, there would be a determination of not only the extent of such a servitude, but the value thereof based upon the difference between the value of respondents' property before and after the taking. Rather than a stoppage of the government project, this is the avenue of redress open to respondents. Since we have set aside the judgments of both the Court of Appeals and the District Court, it is appropriate that we make clear that we do not in any way pass upon or indicate any view regarding the validity of respondents' water right claims.V. THE IRRIGATION AND UTILITY DISTRICTSSimilar disposition must be made of No. 115. There, the petitioners are 14 Irrigation and Utility Districts which have contracts with the Government for the use of water from Millerton Lake. The Court of Appeals, as we have noted, dissolved the injunction previously granted against them by the District Court. No other relief having been sought against the Districts, it appears that they should have been dismissed from the action. In any event, in view of our disposition of No. 31, dismissal of these petitioners is now in order.The judgment as to the dismissal of the United States is affirmed; it is reversed as to the failure to dismiss the Reclamation officials and the Irrigation and Utility Districts, and the cases are remanded to the Court of Appeals with directions that it vacate the judgment of the District Court and remand the case with instructions that the same be dismissed.It is so ordered

U.S. Supreme CourtDugan v. Rank, 372 U.S. 609 (1963)Dugan v. RankNo. 31Argued January 7, 1963Decided April 15, 1963*372 U.S. 609SyllabusRespondents, who are claimants to water rights along the San Joaquin River before the Friant Dam in California, brought suit against the United States, local officials of the United States Bureau of Reclamation, and a number of irrigation and utility districts to enjoin the storing and diversion of water at the dam, which is part of the Central Valley Reclamation Project, authorized by Congress and undertaken by the Bureau of Reclamation under the Act of August 26, 1937, 50 Stat. 844. The suit was brought originally in a State Court, and was removed to a Federal District Court.Held:1. The McCarran amendment, 66 Stat. 560, granting consent to join the United States as a defendant in any suit "for the adjudication of rights to the use of water of a river system or other source," is not applicable here, since all claimants to water rights along the river were not made parties, no relief was asked as between claimants, and priorities were not sought to be established as to the appropriative and prescriptive rights asserted. Therefore, the United States has not consented to be made a party defendant in this suit, and it must be dismissed from the suit for want of jurisdiction. Pp. 372 U. S. 617-619.The United States was empowered to acquire the water rights of respondents by physical seizure; the officials of the Bureau of Reclamation did not act beyond the scope of their authority; their alleged interference with the claimed rights of respondents would not be a trespass, but a partial taking for which the United States would be required to compensate respondents; the suit to enjoin these officials actually was a suit against the United States; and it must be dismissed as to these officials. Pp. 372 U. S. 611, 372 U. S. 619-623.3. If respondents have valid water rights which have been interfered with or partially taken, their remedy is not the stoppage of this government reclamation project, but a suit against the United States under the Tucker Act, 28 U.S.C. § 1346, for damages, Page 372 U. S. 610 measured by the difference in the market value of respondents' land before and after the interference or taking. Pp. 372 U. S. 611, 372 U. S. 623-626.4. The irrigation and utility districts which have contracts with the United States for the use of the water from the lake created by this dam must likewise be dismissed from this suit. P. 372 U.S. 626.293 F.2d 340, 307 F.2d 96, affirmed in part, reversed in part, and remanded.

1983_82-1432

JUSTICE BLACKMUN delivered the opinion of the Court.This case raises issues concerning the scope of judicial immunity from a civil suit that seeks injunctive and declaratory relief under § 1 of the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983, and from fee awards made under the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, as amended, 42 U.S.C. § 1988.Petitioner Gladys Pulliam is a state Magistrate in Culpeper County, Va. Respondents Richmond R. Allen and Jesse W. Nicholson were plaintiffs in a § 1983 action against Pulliam brought in the United States District Court for the Eastern District of Virginia. They claimed that Magistrate Pulliam's practice of imposing bail on persons arrested for nonjailable Page 466 U. S. 525 offenses under Virginia law and of incarcerating those persons if they could not meet the bail was unconstitutional. The District Court agreed and enjoined the practice. That court also awarded respondents $7,691.09 in costs and attorney's fees under § 1988. The United States Court of Appeals for the Fourth Circuit rejected petitioner's claim that the award of attorney's fees against her should have been barred by principles of judicial immunity. We agree with the Court of Appeals, and affirm the award.IRespondent Allen was arrested in January, 1980, for allegedly using abusive and insulting language, a Class 3 misdemeanor under Va.Code § 18.2-416 (1982). The maximum penalty for a Class 3 misdemeanor is a $500 fine. See § 18.2-11(c). Petitioner set a bond of $250. Respondent Allen was unable to post the bond, and petitioner committed Allen to the Culpeper County jail, where he remained for 14 days. He was then tried, found guilty, fined, and released. The trial judge subsequently reopened the judgment and reversed the conviction. Allen then filed his § 1983 claim, seeking declaratory and injunctive relief against petitioner's practice of incarcerating persons waiting trial for nonincarcerable offenses. [Footnote 1]Respondent Nicholson was incarcerated four times within the 2-month period immediately before and after the filing of Allen's complaint. His arrests were for alleged violations of Va.Code § 18.2-388 (1982), being drunk in public. Section 18.2-388 is a Class 4 misdemeanor for which the maximum penalty is a $100 fine. See § 18.2-11(d). Like Allen, respondent Nicholson was incarcerated for periods of two to six Page 466 U. S. 526 days for failure to post bond. He intervened in Allen's suit as a party plaintiff.The District Court found it to be petitioner's practice to require bond for nonincarcerable offenses. The court declared the practice to be a violation of due process and equal protection and enjoined it. [Footnote 2] The court also found that respondents, having substantially prevailed on their claims, were entitled to costs, including reasonable attorney's fees, in accordance with § 1988. It directed respondents to submit a request for costs to petitioner within 10 days. App. 23. Petitioner did not appeal this order.Respondents submitted a request for fees and costs totalling $7,691.09. The fee component of this figure was $7,038. Page 466 U. S. 527 Petitioner filed objections and prayed "that the Court reduce the request of Plaintiffs for attorney's fees." Id. at 33. The court found the fees figure reasonable, and granted fees and costs in the requested amount.Petitioner took an appeal from the order awarding attorney's fees against her. She argued that, as a judicial officer, she was absolutely immune from an award of attorney's fees. The Court of Appeals reviewed the language and legislative history of § 1988. It concluded that a judicial officer is not immune from an award of attorney's fees in an action in which prospective relief properly is awarded against her. Since the court already had determined that judicial immunity did not extend to injunctive and declaratory relief under § 1983, [Footnote 3] the court concluded that prospective relief properly had been awarded against petitioner. It therefore affirmed the award of attorney's fees. Allen v. Burke, 690 F.2d 376 (1982).IIWe granted certiorari in this case, 461 U.S. 904 (1983), to determine, as petitioner phrased the question,"[w]hether Judicial Immunity Bars the Award of Attorney's Fees Pursuant to 42 U.S.C. § 1988 Against a Member of the Judiciary Acting in his Judicial Capacity."See the initial leaf of the petition for certiorari. As the Court of Appeals recognized, the answer to that question depends in part on whether judicial immunity bars an award of injunctive relief under § 1983. The legislative history of § 1988 clearly indicates that Congress intended to provide for attorney's fees in cases where relief properly is granted against officials who are immune from damages awards. H.R.Rep. No. 94-1558, p. 9 (1976). [Footnote 4] There is no indication, however, that Congress Page 466 U. S. 528 intended to provide for a fee award if the official was immune from the underlying relief on which the award was premised. See Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U. S. 719, 446 U. S. 738-739 (1980). Before addressing the specific provisions of § 1988, therefore, we turn to the more fundamental question, that is, whether a judicial officer acting in her judicial capacity should be immune from prospective injunctive relief. [Footnote 5]IIIAlthough injunctive relief against a judge rarely is awarded, the United States Courts of Appeals that have faced the issue are in agreement that judicial immunity does not bar such relief. [Footnote 6] This Court, however, has never decided the question. [Footnote 7] Page 466 U. S. 529 The starting point in our own analysis is the common law. Our cases have proceeded on the assumption that common law principles of legislative and judicial immunity were incorporated into our judicial system, and that they should not be abrogated absent clear legislative intent to do so. See Pierson v. Ray, 386 U. S. 547, 386 U. S. 554-555 (1967); Tenney v. Brandhove, 341 U. S. 367 (1951). Accordingly, the first and crucial question is whether the common law recognized judicial immunity from prospective collateral relief.At the common law itself, there was no such thing as an injunction against a judge. Injunctive relief was an equitable remedy that could be awarded by the Chancellor only against the parties in proceedings before other courts. See 2 J. Story, Equity Jurisprudence � 875, p. 72 (11th ed. 1873). This limitation on the use of the injunction, however, says nothing about the scope of judicial immunity. And the limitation derived not from judicial immunity, but from the substantive confines of the Chancellor's authority. Ibid.Although there were no injunctions against common law judges, there is a common law parallel to the § 1983 injunction at issue here. That parallel is found in the collateral prospective relief available against judges through the use of the King's prerogative writs. A brief excursion into common law history helps to explain the relevance of these writs to the question whether principles of common law immunity bar injunctive relief against a judicial officer. Page 466 U. S. 530The doctrine of judicial immunity and the limitations on prospective collateral relief with which we are concerned have related histories. Both can be traced to the successful efforts of the King's Bench to ensure the supremacy of the common law courts over their 17th- and 18th-century rivals. See 5 W. Holdsworth, A History of English Law 159-160 (3d ed.1945) (Holdsworth).A number of courts challenged the King's Bench for authority in those days. Among these were the Council, the Star Chamber, the Chancery, the Admiralty, and the ecclesiastical courts. Ibid. In an effort to assert the supremacy of the common law courts, Lord Coke forbade the interference by courts of equity with matters properly triable at common law. See Heath v. Rydley, Cro.Jac. 335, 79 Eng.Rep. 286 (K.B. 1614). Earlier, in Floyd and Barker, 12 Co.Rep. 23, 77 Eng.Rep. 1305 (1607), Coke and his colleagues of the Star Chamber had declared the judges of the King's Bench immune from prosecution in competing courts for their judicial acts. In doing so, they announced the theory upon which the concept of judicial immunity was built. The judge involved in Floyd and Barker was a common law Judge of Assize who had presided over a murder trial. He was then charged in the Star Chamber with conspiracy. The court concluded that the judges of the common law should not be called to account "before any other Judge at the suit of the King." Id. at 24, 77 Eng.Rep. at 1307."[A]nd it was agreed, that insomuch as the Judges of the realm have the administration of justice, under the King, to all his subjects, they ought not to be drawn into question for any supposed corruption, which extends to the annihilating of a record, or of any judicial proceedings before them, or tending to the slander of the justice of the King, which will trench to the scandal of the King himself, except it be before the King himself; for they Page 466 U. S. 531 are only to make an account to God and the King, and not to answer to any suggestion in the Star-Chamber."Id. at 25, 77 Eng.Rep. at 1307.As this quoted language illustrates, Coke's principle of immunity extended only to the higher judges of the King's courts. See 5 Holdsworth, at 159-160. In time, Coke's theory was expanded beyond his narrow concern of protecting the common law judges from their rival courts, so that judges of all courts were accorded immunity, at least for actions within their jurisdiction. [Footnote 8] See Scott v. Stansfield, 3 L.R.Ex. 220 (1868) (immunity extended to a county court, an inferior court of record; reliance placed on precedent extending immunity to the court of a coroner and to a courtmartial, an inferior court and a court not of record); Haggard v. Pelicer Freres [1892] A. C. 61 (1891) (Judge of Consular Court of Madagascar given same immunity as judge of a court of record). In addition, the theory itself was refined, its focus shifting from the need to preserve the King's authority to the public interest in independent judicial decisionmaking. See Taaffe v. Downes, reprinted in footnote in Calder v. Halket, 13 Eng.Rep. 12, 18, n. (a) (P.C. 1840) ("An action before one Judge for what is done by another, is in the nature of an Appeal; and is the Appeal from an equal to an equal. It is a solecism in the law . . . that the Plaintiff's case is against the independence of the Judges"). Page 466 U. S. 532By 1868, one of the judges of the Court of Exchequer explained judicial immunity in language close to our contemporary understanding of the doctrine:"It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law, independently and freely, without favor and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences."Scott v. Stansfield, 3 L.R.Ex., at 223, quoted in Bradley v. Fisher, 13 Wall. 335, 80 U. S. 350, n. (1872). It is in the light of the common law's focus on judicial independence that the collateral control exercised by the King's Bench over rival and inferior courts has particular significance.The King's Bench exercised significant collateral control over inferior and rival courts through the use of prerogative writs. The writs included habeas corpus, certiorari, prohibition, mandamus, quo warranto, and ne exeat regno. 1 Holdsworth at 226-231 (7th ed.1956). Most interesting for our current purposes are the writs of prohibition and mandamus. [Footnote 9] The writs issued against a judge, in theory to prevent Page 466 U. S. 533 him from exceeding his jurisdiction or to require him to exercise it. Id. at 228-229. In practice, controlling an inferior court in the proper exercise of its jurisdiction meant that the King's Bench used and continues to use the writs to prevent a judge from committing all manner of errors, including departing from the rules of natural justice, proceeding with a suit in which he has an interest, misconstruing substantive law, and rejecting legal evidence. See 1 Halsbury's Laws of England �� 76, 81, 130 (4th ed.1973); Gordon, The Observance of Law as a Condition of Jurisdiction, 47 L.Q.Rev. 386, 394 (1931). [Footnote 10]Examples are numerous in which a judge of the King's Bench, by issuing a writ of prohibition at the request of a party before an inferior or rival court, enjoined that court from proceeding with a trial or from committing a perceived error during the course of that trial. See generally Dobbs, The Decline of Jurisdiction by Consent, 40 N.C.L.Rev. 49, 60-61 (1961). The writs were particularly useful in exercising collateral control over the ecclesiastical courts, since the King's Bench exercised no direct review over those tribunals. In Shatter v. Friend, 1 Show. 158, 89 Eng.Rep. 510 (K. B. 1691), for example, the court granted a prohibition against the Spiritual Court for refusing to allow the defendant's proof of payment of a 10-pound legacy, one of the justices concluding that "it was an unconscionable unreasonable thing to disallow the proof." Id. at 161, 89 Eng.Rep. at 512. [Footnote 11] Page 466 U. S. 534In Gould v. Gapper, 5 East. 345, 102 Eng.Rep. 1102 (K.B. 1804), the court made explicit what had been implicit in a number of earlier decisions. It held that a writ of prohibition would be granted not only when a court had exceeded its jurisdiction, but also when the court, either a noncommon law court or an inferior common law court, had misconstrued an Act of Parliament or, acting under the rules of the civil law, had decided otherwise than the courts of common law would upon the same subject. The fact that the error might be corrected on appeal was deemed to be irrelevant to the availability of a writ of prohibition. In the court's view, the reason for prohibition in such a case was"[n]ot that the Spiritual Court had not jurisdiction to construe [the statute], but that the mischiefs of misconstruction were to be prevented by prohibition."Id. at 368, 102 Eng.Rep. at 1111. [Footnote 12] Page 466 U. S. 535Although the King's Bench exercised direct review of the inferior common law courts, it also used the writ of prohibition to control those courts. See, e.g., In re Hill, 10 Exch. 726 (1855) (prohibition issued to prevent judge from proceeding in a case in which he, of his own accord, had amended a claim to an amount within his jurisdiction). [Footnote 13]The practice has continued into modern times. In King v. Emerson, [1913] 2 Ir.R. 377, for instance, the court granted a writ of prohibition preventing a justice of the peace, acting in a judicial capacity, from proceeding with a deposition, because of a likelihood that a reasonable public might conclude that the magistrate's statements indicated bias in favor of the Crown. The court directed the magistrate to pay costs to the complaining party, leaving him to settle with the Crown the matter of indemnification.The relationship between the King's Bench and its collateral and inferior courts is not precisely paralleled in our system by the relationship between the state and federal courts. Page 466 U. S. 536 To the extent that we rely on the common law practice in shaping our own doctrine of judicial immunity, however, the control exercised by the King's Bench through the prerogative writs is highly relevant. It indicates that, at least in the view of the common law, there was no inconsistency between a principle of immunity that protected judicial authority from "a wide, wasting, and harassing persecution," Taaffe v. Downes, 13 Eng.Rep. at 18, n. (a), and the availability of collateral injunctive relief in exceptional cases. Nor, as indicated above, did the common law deem it necessary to limit this collateral relief to situations where no alternative avenue of review was available. See Gould v. Gapper, supra.It is true that the King's Bench was successful in insulating its judges from collateral review. But that success had less to do with the doctrine of judicial immunity than with the fact that only the superior judges of the King's Bench, not the ecclesiastical courts or the inferior common law courts, had authority to issue the prerogative writs. [Footnote 14]IVOur own experience is fully consistent with the common law's rejection of a rule of judicial immunity from prospective relief. We never have had a rule of absolute judicial immunity from prospective relief, and there is no evidence that the absence of that immunity has had a chilling effect on judicial independence. None of the seminal opinions on judicial immunity, either in England or in this country, has involved Page 466 U. S. 537 immunity from injunctive relief. [Footnote 15] No Court of Appeals ever has concluded that immunity bars injunctive relief against a judge. See n 6, supra. At least seven Circuits have indicated affirmatively that there is no immunity bar to such relief, and in situations where, in their judgment, an injunction against a judicial officer was necessary to prevent irreparable injury to a petitioner's constitutional rights, courts have granted that relief. [Footnote 16]For the most part, injunctive relief against a judge raises concerns different from those addressed by the protection of judges from damages awards. The limitations already imposed by the requirements for obtaining equitable relief against any defendant -- a showing of an inadequate remedy at law and of a serious risk of irreparable harm, see Beacon Theatres, Inc. v. Westover, 359 U. S. 500, 359 U. S. 506-507 (1959) [Footnote 17] -- severely curtail the risk that judges will be harassed and their independence compromised by the threat of having to Page 466 U. S. 538 defend themselves against suits by disgruntled litigants. [Footnote 18] Similar limitations serve to prevent harassment of judges through use of the writ of mandamus. Because mandamus has"the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him,"the Court has stressed that it should be "reserved for really extraordinary causes." Ex parte Fahey, 332 U. S. 258, 332 U. S. 260 (1947). Occasionally, however, there are "really extraordinary causes" and, in such cases, there has been no suggestion that judicial immunity prevents the supervising court from issuing the writ. [Footnote 19] Page 466 U. S. 539The other concern raised by collateral injunctive relief against a judge, particularly when that injunctive relief is available through § 1983, relates to the proper functioning of federal-state relations. Federal judges, it is urged, should not sit in constant supervision of the actions of state judicial officers, whatever the scope of authority under § 1983 for issuing an injunction against a judge.The answer to this concern is that it is not one primarily of judicial independence, properly addressed by a doctrine of judicial immunity. The intrusion into the state process would result whether the action enjoined were that of a state judge or of another state official. The concern, therefore, has been addressed as a matter of comity and federalism, independent of principles of judicial immunity. [Footnote 20] We reaffirm the validity of those principles and the need for restraint by federal courts called on to enjoin the actions of state judicial officers. We simply see no need to reinterpret the principles now as stemming from the doctrine of judicial immunity.If the Court were to employ principles of judicial immunity to enhance further the limitations already imposed by principles of comity and federalism on the availability of injunctive relief against a state judge, it would foreclose relief in situations where, in the opinion of a federal judge, that relief is constitutionally required and necessary to prevent irreparable harm. Absent some basis for determining that such a result is compelled, either by the principles of judicial immunity, derived from the common law and not explicitly abrogated by Congress, or by Congress' own intent to limit Page 466 U. S. 540 the relief available under § 1983, we are unwilling to impose those limits ourselves on the remedy Congress provided.As illustrated above, there is little support in the common law for a rule of judicial immunity that prevents injunctive relief against a judge. There is even less support for a conclusion that Congress intended to limit the injunctive relief available under § 1983 in a way that would prevent federal injunctive relief against a state judge. In Pierson v. Ray, 386 U. S. 547 (1967), the Court found no indication of affirmative congressional intent to insulate judges from the reach of the remedy Congress provided in § 1983. The Court simply declined to impute to Congress the intent to abrogate common law principles of judicial immunity. Absent the presumption of immunity on which Pierson was based, nothing in the legislative history of § 1983 or in this Court's subsequent interpretations of that statute supports a conclusion that Congress intended to insulate judges from prospective collateral injunctive relief.Congress enacted § 1983 and its predecessor, § 2 of the Civil Rights Act of 1866, 14 Stat. 27, to provide an independent avenue for protection of federal constitutional rights. The remedy was considered necessary because"state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights."Mitchum v. Foster, 407 U. S. 225, 407 U. S. 240 (1972). See also Pierson v. Ray, 386 U.S. at 386 U. S. 558-564 (dissenting opinion) (every Member of Congress who spoke to the issue assumed that judges would be liable under § 1983).Subsequent interpretations of the Civil Rights Acts by this Court acknowledge Congress' intent to reach unconstitutional actions by all state actors, including judges. In Ex parte Virginia, 100 U. S. 339 (1880), § 4 of the Civil Rights Act of 1875, 18 Stat. 336, was employed to authorize a criminal indictment against a judge for excluding persons from Page 466 U. S. 541 jury service on account of their race. The Court reasoned that the Fourteenth Amendment prohibits a State from denying any person within its jurisdiction the equal protection of the laws. Since a State acts only by its legislative, executive, or judicial authorities, the constitutional provision must be addressed to those authorities, including the State's judges. Section 4 was an exercise of Congress' authority to enforce the provisions of the Fourteenth Amendment and, like the Amendment, reached unconstitutional state judicial action. [Footnote 21]The interpretation in Ex parte Virginia of Congress' intent in enacting the Civil Rights Acts has not lost its force with the passage of time. In Mitchum v. Foster, supra, the Court found § 1983 to be an explicit exception to the anti-injunction statute, citing Ex parte Virginia for the proposition that the"very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights -- to protect the people from unconstitutional action under color of state law, 'whether that action be executive, legislative, or judicial.'"407 U.S. at 407 U. S. 242.Much has changed since the Civil Rights Acts were passed. It no longer is proper to assume that a state court will not act to prevent a federal constitutional deprivation, or that a state judge will be implicated in that deprivation. We remain steadfast in our conclusion, nevertheless, that Congress intended § 1983 to be an independent protection for federal rights, and find nothing to suggest that Congress intended to expand the common law doctrine of judicial immunity to insulate state judges completely from federal collateral review.We conclude that judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her Page 466 U. S. 542 judicial capacity. In so concluding, we express no opinion as to the propriety of the injunctive relief awarded in this case. Petitioner did not appeal the award of injunctive relief against her. The Court of Appeals therefore had no opportunity to consider whether respondents had an adequate remedy at law, rendering equitable relief inappropriate, [Footnote 22] or Page 466 U. S. 543 whether the order itself should have been more narrowly tailored. On the record before us and without the benefit of the Court of Appeals' assessment, we are unwilling to speculate about these possibilities. We proceed, therefore, to the question whether judicial immunity bars an award of attorney's fees, under § 1988, to one who succeeds in obtaining injunctive relief against a judicial officer.VPetitioner insists that judicial immunity bars a fee award because attorney's fees are the functional equivalent of monetary damages, and monetary damages indisputably are prohibited by judicial immunity. She reasons that the chilling effect of a damages award is no less chilling when the award is denominated attorney's fees.There is, perhaps, some logic to petitioner's reasoning.The weakness in it is that it is for Congress, not this Court, to determine whether and to what extent to abrogate the judiciary's common law immunity. See Pierson v. Ray, 386 U.S. at 386 U. S. 554. Congress has made clear in § 1988 its intent that attorney's fees be available in any action to enforce a provision of § 1983. See also Hutto v. Finney, 437 U. S. 678, 437 U. S. 694 (1978). The legislative history of the statute confirms Congress' intent that an attorney's fee award be available even when damages would be barred or limited by "immunity doctrines and special defenses, available only to public officials." H.R.Rep. No. 94-1558, p. 9 (1976). [Footnote 23] See also Page 466 U. S. 544 Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. at 446 U. S. 738-739 ("The House Committee Report on [§ 1988] indicates that Congress intended to permit attorney's fees awards in cases in which prospective relief was properly awarded against defendants who would be immune from damages awards").Congress' intent could hardly be more plain. Judicial immunity is no bar to the award of attorney's fees under 42 U.S.C. § 1988.The judgment of the Court of Appeals, allowing the award of attorney's fees against petitioner, is therefore affirmed.It is so ordered

U.S. Supreme CourtPulliam v. Allen, 466 U.S. 522 (1984)Pulliam v. AllenNo. 82-1432Argued November 2, 1983Decided May 14, 1984466 U.S. 522SyllabusAfter respondents were arrested for nonjailable misdemeanors, petitioner, a Magistrate in a Virginia county, imposed bail, and when respondents were unable to meet the bail, petitioner committed them to jail. Subsequently, respondents brought an action against petitioner in Federal District Court under 42 U.S.C. § 1983, claiming that petitioner's practice of imposing bail on persons arrested for nonjailable offenses under Virginia law and of incarcerating those persons if they could not meet the bail was unconstitutional. The court agreed and enjoined the practice, and also awarded respondents costs and attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976. Determining that judicial immunity did not extend to injunctive relief under § 1983 and that prospective injunctive relief properly had been awarded against petitioner, the Court of Appeals affirmed the award of attorney's fees.Held:1. Judicial immunity is not a bar to prospective injunctive relief against a judicial officer, such as petitioner, acting in her judicial capacity. Pp. 466 U. S. 528-543.(a) Common law principles of judicial immunity were incorporated into the United States judicial system, and should not be abrogated absent clear legislative intent to do so. Although there were no injunctions against common law judges, there is a common law parallel to the § 1983 injunction at issue here in the collateral prospective relief available against judges through the use of the King's prerogative writs in England. The history of these writs discloses that the common law rule of judicial immunity did not include immunity from prospective collateral relief. Pp. 466 U. S. 528-536.(b) The history of judicial immunity in the United States is fully consistent with the common law experience. There never has been a rule of absolute judicial immunity from prospective relief, and there is no evidence that the absence of that immunity has had a chilling effect on judicial independence. Limitations on obtaining equitable relief serve to curtail or prevent harassment of judges through suits against them by disgruntled litigants. Collateral injunctive relief against a judge, particularly when that relief is available through § 1983, also raises a concern relating to the proper functioning of federal-state relations, but that Page 466 U. S. 523 concern has been addressed directly as a matter of comity and federalism, independent of principles of judicial immunity. While there is a need for restraint by federal courts called upon to enjoin actions of state judicial officers, there is no support for a conclusion that Congress intended to limit the injunctive relief available under § 1983 in a way that would prevent federal injunctive relief against a state judge. Rather, Congress intended § 1983 to be an independent protection for federal rights, and there is nothing to suggest that Congress intended to expand the common law doctrine of judicial immunity to insulate state judges completely from federal collateral review. Pp. 466 U. S. 536-543.2. Judicial immunity is no bar to the award of attorney's fees under the Civil Rights Attorney's Fees Awards Act. Congress has made clear in the Act its intent that attorney's fees be available in any action to enforce § 1983. And the legislative history confirms Congress' intent that an attorney's fee award be made available even when damages would be barred or limited by immunity doctrines. Pp. 466 U. S. 543-544.690 F.2d 376, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST and O'CONNOR, JJ., joined, post, p. 466 U. S. 544. Page 466 U. S. 524

1989_88-124

Justice BRENNAN delivered the opinion of the Court.This case presents two questions under the federal labor laws: first, whether the National Labor Relations Board (NLRB or Board) has exclusive jurisdiction over a union member's claims that his union both breached its duty of fair representation and violated the Labor-Management Reporting and Disclosure Act of 1959, (LMRDA), 73 Stat. 519, 29 U.S.C. § 401 et seq. (1982 ed.), by discriminating against him in job referrals made by the union hiring hall; and second, whether the union's alleged refusal to refer him to employment through the hiring hall as a result of his political opposition to the union's leadership gives rise to a claim under §§ 101(a)(5) and 609 of the LMRDA, 29 U.S.C. §§ 411(a)(5), 529 (1982 ed.). The Court of Appeals for the Sixth Circuit held that petitioner's suit fell within the exclusive jurisdiction of the Board, and that petitioner had failed to state a claim Page 493 U. S. 71 under the LMRDA. 849 F.2d 997 (1988) (per curiam). We reverse the Court of Appeals' decision as to jurisdiction, but we affirm its holding that petitioner did not state a claim under LMRDA §§ 101(a)(5) and 609.IPetitioner Lynn L. Breininger was at all relevant times a member of respondent, Local Union No. 6 of the Sheet Metal Workers International Association. Pursuant to a multi-employer collective bargaining agreement, respondent operates a hiring hall through which it refers both members and nonmembers of the union for construction work. Respondent maintains an out-of-work list of individuals who wish to be referred to jobs. When an employer contacts respondent for workers, he may request certain persons by name. If he does not, the union begins at the top of the list and attempts to telephone in order each worker listed until it has satisfied the employer's request. The hiring hall is not the exclusive source of employment for sheet metal workers; they are free to seek employment through other mechanisms, and employers are not restricted to hiring only those persons recommended by the union. [Footnote 1] Respondent also maintains a job referral list under the Specialty Agreement, a separate collective bargaining agreement negotiated to cover work on siding, decking, and metal buildings.Petitioner alleges that respondent refused to honor specific employer requests for his services and passed him over in making job referrals. He also contends that respondent refused to process his internal union grievances regarding Page 493 U. S. 72 these matters. Petitioner's first amended complaint contained two counts. First, he asserted a violation of the duty of fair representation, contending that respondent, "in its representation of [petitioner], has acted arbitrarily, discriminatorily, and/or in bad faith and/or without reason or cause." First Amended Complaint � 13. Second, petitioner alleged that his union, "in making job referrals, . . . has favored a faction of members . . . who have been known to support . . . the present business manager," as "part of widespread, improper discipline for political opposition in violation of 29 U.S.C. [§ 411(a)(5)] and 29 U.S.C. § 529." Id., � 17. Respondent, in other words, "acting by and through its present business manager . . . and its present business agent [has] otherwise disciplined'" petitioner within the meaning of LMRDA §§ 101(a)(5) and 609. Id., � 16.The District Court held that it lacked jurisdiction to entertain petitioner's suit because "discrimination in hiring hall referrals constitutes an unfair labor practice," and "[t]he NLRB has exclusive jurisdiction over discrimination in hiring hall referrals." No. C 83-1126 (ND Ohio, Feb. 20, 1987), p. 6, reprinted in App. to Pet. for Cert. A9. The District Court determined that adjudicating petitioner's claims "would involve interfe[r]ing with the NLRB's exclusive jurisdiction." Id. at 7, App. to Pet. for Cert. A10.The Court of Appeals affirmed in a brief per curiam opinion. With respect to the fair representation claim, the court noted that "[c]ircuit courts have consistently held that . . . fair representation claims must be brought before the Board" and that"if the employee fails to affirmatively allege that his employer breached the collective bargaining agreement, which [petitioner] failed to do in the case at bar, he cannot prevail."849 F.2d at 999 (emphasis in original). In regard to the LMRDA count, the Court of Appeals found that"[d]iscrimination in the referral system, because it does not breach the employee's union membership rights, does not constitute 'discipline' within the meaning of LMRDA"and Page 493 U. S. 73 that"[h]iring hall referrals are not a function of union membership, since referrals are available to nonmembers as well as members."Ibid. We granted certiorari. 489 U.S. 1009 (1989).IIAWe have long recognized that a labor organization has a statutory duty of fair representation under the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq.,"to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct."Vaca v. Sipes, 386 U. S. 171, 386 U. S. 177 (1967); see also Steele v. Louisville & Nashnille R. Co., 323 U. S. 192, 323 U. S. 203 (1944). In Miranda Fuel Co., Inc., 140 N.L.R.B. 181 (1962), enf. denied, 326 F.2d 172 (CA2 1963), the NLRB determined that violations of the duty of fair representation might also be unfair labor practices under § 8(b) of the NLRA, as amended, 29 U.S.C. § 158(b) (1982 ed.). [Footnote 2] The Board held that the right of employees under § 7 of the NLRA, as amended, 29 U.S.C. § 157, to form, join, or assist labor organizations, or to refrain from such activities,"is a statutory limitation on statutory bargaining representatives, and . . . that Section 8(b)(1)(A) of the Act Page 493 U. S. 74 accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations or classifications which are irrelevant, invidious, or unfair."140 N.L.R.B. at 185. In addition, the Board reasoned that"a statutory bargaining representative and an employer also respectively violate Section 8(b)(2) and 8(a)(3) when, for arbitrary or irrelevant reasons or upon the basis of an unfair classification, the union attempts to cause or does cause an employer to derogate the employment status of an employee."Id. at 186. While petitioner alleged a breach of the duty of fair representation, his claim might relate to conduct that under Miranda Fuel also constitutes an unfair labor practice. And, as a general matter, neither state nor federal courts possess jurisdiction over claims based on activity that is "arguably" subject to §§ 7 or 8 of the NLRA. See San Diego Building Trades Council v. Garmon, 359 U. S. 236, 359 U. S. 245 (1959).Nevertheless, the District Court was not deprived of jurisdiction. In Vaca v. Sipes, supra, we held that Garmon's preemption rule does not extend to suits alleging a breach of the duty of fair representation. Our decision in Vaca was premised on several factors. First, we noted that courts developed and elaborated the duty of fair representation before the Board even acquired statutory jurisdiction over union activities. Indeed, fair representation claims often involve matters "not normally within the Board's.unfair labor practice jurisdiction," 386 U.S. at 386 U. S. 181, which is typically aimed at "effectuating the policies of the federal labor laws, not [redressing] the wrong done the individual employee." Id. at 386 U. S. 182, n. 8. We therefore doubted whether "the Board brings substantially greater expertise to bear on these problems than do the courts." Id. at 386 U. S. 181. Another consideration in Vaca for finding the fair representation claim judicially cognizable was the NLRB General Counsel's unreviewable discretion to refuse to institute unfair labor practice proceedings."[T]he General Counsel will refuse to bring complaints on behalf Page 493 U. S. 75 of injured employees when the injury complained of is 'insubstantial.'"Id. at 386 U. S. 183, n. 8. The right of the individual employee to be made whole is "[o]f paramount importance," Bowen v. USPS, 459 U. S. 212, 459 U. S. 222 (1983), and"[t]he existence of even a small group of cases in which the Board would be unwilling or unable to remedy a union's breach of duty would frustrate the basic purposes underlying the duty of fair representation doctrine."Vaca, supra, 386 U.S. at 386 U. S. 182-183. Consequently, we were unwilling to assume that Congress intended to deny employees their traditional fair representation remedies when it enacted § 8(b) as part of the Labor Management Relations Act (LMRA). As Justice WHITE described Vaca v. Sipes last Term in Karahalios v. Federal Employees, 489 U. S. 527, 489 U. S. 535 (1989):"As we understood our inquiry, it was whether Congress, in enacting § 8(b) in 1947, had intended to oust the courts of their role enforcing the duty of fair representation implied under the NLRA. We held that the 'tardy assumption' of jurisdiction by the NLRB was insufficient reason to abandon our prior cases, such as Syres [v. Oil Workers, 350 U.S. 892 (1955)]."That a breach of the duty of fair representation might also be an unfair labor practice is thus not enough to deprive a federal court of jurisdiction over the fair representation claim. See Communications Workers v. Beck, 487 U. S. 735, 487 U. S. 743 (1988).We decline to create an exception to the Vaca rule for fair representation complaints arising out of the operation of union hiring halls. Although the Board has had numerous opportunities to apply the NLRA to hiring hall policies, [Footnote 3] we Page 493 U. S. 76 reject the notion that the NLRB ought to possess exclusive jurisdiction over fair representation complaints in the hiring hall context because it has had experience with hiring halls in the past. [Footnote 4] As an initial matter, we have never suggested that the Vaca rule contains exceptions based on the subject matter of the fair representation claim presented, the relative expertise of the NLRB in the particular area of labor law involved, or any other factor. We are unwilling to begin the process of carving out exceptions now, especially since we Page 493 U. S. 77 see no limiting principle to such an approach. Most fair representation cases require great sensitivity to the tradeoffs between the interests of the bargaining unit as a whole and the rights of individuals. [Footnote 5] Furthermore, we have never indicated that NLRB "experience" or "expertise" deprives a court of jurisdiction over a fair representation claim. The Board has developed an unfair labor practice jurisprudence in many areas traditionally encompassed by the duty of fair representation. The Board, for example, repeatedly has applied the Miranda Fuel doctrine in cases involving racial discrimination. See International Brotherhood of Painters, Local 1066 (W.J. Siebenoller, Jr., Paint Co.), 205 N.L.R.B. 651, 652 (1973); Houston Maritime Assn., Inc. (Longshoremen Local 1351), 168 N.L.R.B. 615, 616-617 (1967), enf. denied, 426 F.2d 584 (CA5 1970); Cargo Handlers, Inc. (Longshoremen Local 1191), 159 N.L.R.B. 321, 322-327 (1966); United Rubber Workers, Local No. 12 (Business League of Gadsden), 150 N.L.R.B. 312, 314-315 (1964), enf'd, 368 F.2d 12 (CA5 1966), cert. denied, 389 U.S. 837 (1967); Automobile Workers, Local 453 (Maremont Corp.), 149 N.L.R.B. 482, 483-484 (1964); Longshoremen, Local 1367 (Galveston Maritime Assn., Inc.), 148 N.L.R.B. 897, 897-900 (1964), enf'd, 368 F.2d 1010 (CA5 1966), cert. denied, 389 U.S. 837 (1967); Independent Metal Workers, Local No. 1 (Hughes Tool Co.), 147 N.L.R.B. 1573, 1574 (1964); see also Handy Andy, Inc., 228 N.L.R.B. 447, 455-456 (1977). In addition, the Board has found gender discrimination by unions to be an unfair labor practice. See Wolf Trap Foundation for the Performing Arts, 287 N.L.R.B. No. 103, p. 2 (Jan. 13, 1988), 127 LRRM 1129, 1130 (1988); Olympic Steamship Co., 233 N.L. R.B. 1178, 1189 (1977); Glass Bottle Blowers Assn., Page 493 U. S. 78 Local 106 (Owens-lllinois, Inc.), 210 N.L.R.B. 943, 943-944 (1974), enf'd, 520 F.2d 693 (CA6 1975); Pacific Maritime Assn. (Longshoremen and Warehousemen, Local 52), 209 N.L.R.B. 519, 519-520 (1974) (Member Jenkins, concurring). In short,"[a] cursory review of Board volumes following Miranda Fuel discloses numerous cases in which the Board has found the duty of fair representation breached where the union's conduct was motivated by an employee's lack of union membership, strifes resulting from intra-union politics, and racial or gender considerations."United States Postal Service, 272 N.L.R.B. 93, 104 (1984). Adopting a rule that NLRB expertise bars federal jurisdiction would remove an unacceptably large number of fair representation claims from federal courts.Respondent calls to our attention language in some of our decisions recognizing that"[t]he problems inherent in the operation of union hiring halls are difficult and complex, and point up the importance of limiting initial competence to adjudicate such matters to a single expert federal agency."Plumbers v. Borden, 373 U. S. 690, 373 U. S. 695 (1963) (citation omitted). For this reason, respondent contends that"[w]hether a hiring hall practice is discriminatory and therefore violative of federal law is a determination Congress has entrusted to the Board."Farmer v. Carpenters, 430 U. S. 290, 430 U. S. 303, n. 12 (1977). The cases cited by respondent, however, focus not on whether unions have administered properly out-of-work lists as required by their duty of fair representation, but rather on whether exclusive hiring halls have encouraged union membership impermissibly as forbidden by § 8(b). Such exclusive arrangements are not illegal per se under federal labor law, but rather are illegal only if they in fact result in discrimination prohibited by the NLRA. See Teamsters v. NLRB, 365 U. S. 667, 365 U. S. 673-677; see also Woelke & Romero Framing, Inc. v. NLRB, 456 U. S. 645, 456 U. S. 664-665 (1982). We have found state law preempted on the ground that"Board approval Page 493 U. S. 79 of various hiring hall practices would be meaningless if state courts could declare those procedures violative of the contractual rights implicit between a member and his union."Farmer, supra, 430 U.S. at 430 U. S. 300, n. 9. These state law claims frequently involve tort, contract, and other substantive areas of law that have developed quite independently of federal labor law. Cf. Lingle v. Norge Division of Magic Chef, Inc., 486 U. S. 399, 486 U. S. 403-406 (1988); Electrical Workers v. Nechler, 481 U. S. 851, 481 U. S. 855-859 (1987); Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 471 U. S. 211 (1985); Teamsters v. Lucas Flour Co., 369 U. S. 95, 369 U. S. 103-104 (1962).The duty of fair representation is different. It has "judicially evolved," Motor Coach Employees v. Lockridge, 403 U. S. 274, 403 U. S. 301 (1971), as part of federal labor law -- predating the prohibition against unfair labor practices by unions in the 1947 LMRA. It is an essential means of enforcing fully the important principle that "no individual union member may suffer invidious, hostile treatment at the hands of the majority of his coworkers." Ibid; see also United Postal Service, Inc. v. Mitchell, 451 U. S. 56, 451 U. S. 63 (1981) ("[T]he unfair representation claim made by an employee against his union . . . is more a creature of labor law' as it has developed . . . than it is of general contract law"). The duty of fair representation, unlike state tort and contract law, is part of federal labor policy. Our"refusal to limit judicial competence to rectify a breach of the duty of fair representation rests upon our judgment that such actions cannot, in the vast majority of situations where they occur, give rise to actual conflict with the operative realities of federal labor policy."Lockridge, supra, at 403 U. S. 301; see also Vaca, 386 U.S. at 386 U. S. 180-181 ("A primary justification for the preemption doctrine -- the need to avoid conflicting rules of substantive law in the labor relations area and the desirability of leaving the development of such rules to the administrative agency created by Congress for that purpose -- is not applicable to cases involving alleged Page 493 U. S. 80 breaches of the union's duty of fair representation"). We therefore decline to interpret the state law preemption cases as establishing a principle that hiring halls are somehow so different from other union activities that fair representation claims are not cognizable outside of the NLRB.The Court of Appeals below also held that if an employee fails to allege that his employer breached the collective bargaining agreement, then he cannot prevail in a fair representation suit against his union. See 849 F.2d at 999. This is a misstatement of existing law. In Vaca, we identified an "intensely practical consideratio[n]," 386 U.S. at 386 U. S. 183, of having the same entity adjudicate a joint claim against both the employer and the union when a wrongfully discharged employee who has not obtained relief through any exclusive grievance and arbitration procedures provided in the collective bargaining agreement brings a breach-of-contract action against the employer pursuant to § 301(a) of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U.S.C. § 185(a) (1982 ed.). We noted that, where the union has control of the grievance and arbitration system, the employee-plaintiff's failure to exhaust his contractual remedies may be excused if the union has wrongfully refused to process his claim, and thus breached its duty of fair representation. See Vaca, 386 U.S. at 386 U. S. 185-186."[T]he wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as a bargaining agent breached its duty of fair representation in its handling of the employee's grievance."Id. at 386 U. S. 186.Our reasoning in Vaca in no way implies, however, that a fair representation action requires a concomitant claim against an employer for breach of contract. Indeed, the earliest fair representation suits involved claims against unions for breach of the duty in negotiating a collective bargaining agreement, a context in which no breach-of-contract action against an employer is possible. See Ford Motor Co. v. Page 493 U. S. 81 Huffman, 345 U. S. 330 (1953); Steele v. Louisville & Nashville R. Co., 323 U. S. 192 (1944). Even after a collective bargaining agreement has been signed, we have never required a fair representation plaintiff to allege that his employer breached the agreement in order to prevail. See, e.g., Communications Workers v. Beck, 487 U.S. at 487 U. S. 743; Czosek v. O'Mara, 397 U. S. 25, 397 U. S. 29 (1970)."[A]n action seeking damages for injury inflicted by a breach of a union's duty of fair representation [is] judicially cognizable in any event, that is, even if the conduct complained of [is] arguably protected or prohibited by the National Labor Relations Act and whether or not the lawsuit [is] bottomed on a collective agreement."Motor Coach Employees v. Lockridge, supra, at 403 U. S. 299 (emphasis added).Respondent argues that the concern in Vaca that suits against the employer and union be heard together in the same forum is applicable to the hiring hall situation, because any action by petitioner against an employer would be premised not on § 301 but rather on the contention that the employer had knowledge of the union conduct violating § 8(b)(1)(A) and acted on that knowledge in making an employment decision. [Footnote 6] The employer would thereby violate Page 493 U. S. 82 NLRA § 8(a)(3), 29 U.S.C. § 158(a)(3), see Wallace Corp. v. NLRB, 323 U. S. 248, 323 U. S. 255-256 (1944), and be held jointly and severally liable with the union, but only in a suit before the Board. [Footnote 7] In the hiring hall environment, permitting courts to hear fair representation claims against the union would create the danger of bifurcated proceedings before a court and the NLRB. The absence of a § 301 claim, according to respondent, requires that we hold that the NLRB possesses exclusive jurisdiction over petitioner's fair representation suit.This argument misinterprets our reasoning in Vaca. Because a plaintiff must as a matter of logic prevail on his unfair representation allegation against the union in order to excuse his failure to exhaust contractual remedies before he can litigate the merits of his § 301 claim against his employer, we found it"obvious that the courts will be compelled to pass upon whether there has been a breach of the duty of fair representation in the context of many § 301 breach-of-contract actions."386 U.S. at 386 U. S. 187. Moreover, because the union's breach may have enhanced or contributed to the employee's injury, permitting fair representation suits to be heard in court facilitates the fashioning of a remedy. Ibid. We concluded that it made little sense to prevent courts from adjudicating fair representation claims.The situation in the instant case is entirely different. In the hiring hall context, the Board may bring a claim alleging a violation of § 8(b)(1)(A) against the union, and a parallel suit against the employer under § 8(a)(3), without implicating the duty of fair representation at all. Or, as in the instant case, an employee may bring a claim solely against the union based on its wrongful refusal to refer him for work. While in Vaca, Page 493 U. S. 83 an allegation that the union had breached its duty of fair representation was a necessary component of the § 301 claim against the employer, the converse is not true here: a suit against the union need not be accompanied by an allegation that an employer breached the contract, since, whatever the employer's liability, the employee would still retain a legal claim against the union. The fact that an employee may bring his fair representation claim in federal court in order to join it with a § 301 claim does not mean that he must bring the fair representation claim before the Board in order to "join" it with a hypothetical unfair labor practice case against the employer that was never actually filed.Federal courts have jurisdiction to hear fair representation suits whether or not they are accompanied by claims against employers. We have always assumed that independent federal jurisdiction exists over fair representation claims because the duty is implied from the grant of exclusive representation status and the claims therefore "arise under" the NLRA. See, e.g., Tunstall v. Locomotive Firemen & Enginemen, 323 U. S. 210, 323 U. S. 213 (1944). Lower courts that have addressed the issue have uniformly found that 28 U.S.C. § 1337(a), which provides federal jurisdiction for, inter alia, "any civil action or proceeding arising under any Act of Congress regulating commerce," creates federal jurisdiction over fair representation claims, because we held in Capital Service, Inc. v. NLRB, 347 U. S. 501, 347 U. S. 504 (1954), that the NLRA is an "Act of Congress regulating commerce." See Chavez v. United Food & Commercial Workers Int'l Union, 779 F.2d 1353, 1355, 1356 (CA8 1985); Anderson v. United Paperworkers Int'l Union, 641 F.2d 574, 576 (CA8 1981); Buchholtz v. Swift & Co., 609 F.2d 317, 332 (CA8 1979), cert. denied, 444 U.S. 1018 (1980); Mumford v. Glover, 503 F.2d 878, 882-883 (CA5 1974); Retana v. Apartment, Motel, Hotel & Elevator Operators Local 14, 453 F.2d 1018, 1021-1022 (CA9 1972); De Arroyo v. Sindicato de Trallajadores Packinghouse, 425 F.2d 281, 283, n. 1 (CA1), cert. denied, 400 Page 493 U. S. 84 U.S. 877 (1970); Nedd v. United Mine Workers of America, 400 F.2d 103, 106 (CA3 1968); see also Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 549 (CA9 1987). We agree with this reasoning. Because federal court jurisdiction exists over a fair representation claim regardless of whether it is accompanied by a breach of contract claim against an employer under § 301, [Footnote 8] and because a fair representation claim is a separate cause of action from any possible suit against the employer, we decline to adopt a rule that exclusive jurisdiction lies in the NLRB over any fair representation suit whose hypothetical accompanying claim against the employer might be raised before the Board.The concerns that animated our decision in Vaca are equally present in the instant case. The Court of Appeals erred in holding that the District Court was without jurisdiction to hear petitioner's fair representation claim.BRespondent contends that, even if jurisdiction in federal court is proper, petitioner has failed to allege a fair representation claim for two reasons. Page 493 U. S. 85(1)First, respondent notes that we have interpreted NLRA § 8(a)(3) to forbid employer discrimination in hiring only when it is intended to discriminate on a union-related basis. See, e.g., NLRB v. Brown, 380 U. S. 278, 380 U. S. 286 (1965). Respondent maintains that symmetry requires us to interpret § 8(b)(2) as forbidding only discrimination based on union-related criteria, and not any other form of maladministration of a union job-referral system. [Footnote 9] Respondent contends that, under this standard, it committed no unfair labor practice in this case. The LMRA, according to respondent, reflects a purposeful Page 493 U. S. 86 congressional decision to limit the scope of § 8(b)(2) to instances where a union discriminates solely on the basis of union membership or lack thereof. This decision would be negated if the duty of fair representation were construed as extending further than the unfair labor practice provisions of the NLRA.We need not decide the appropriate scope of §§ 8(b)(1)(A) and 8(b)(2) because we reject the proposition that the duty of fair representation should be defined in terms of what is an unfair labor practice. Respondent's argument rests on a false syllogism: (a) because Miranda Fuel Co., 140 N.L.R.B. 181 (1962), enf. denied, 326 F.2d 172 (CA2 1963), establishes that a breach of the duty of fair representation is also an unfair labor practice, and (b) the conduct in this case was not an unfair labor practice, therefore (c) it must not have been a breach of the duty of fair representation either. The flaw in the syllogism is that there is no reason to equate breaches of the duty of fair representation with unfair labor practices, especially in an effort to narrow the former category. The NLRB's rationale in Miranda Fuel was precisely the opposite; the Board determined that breaches of duty of fair representation were also unfair labor practices in an effort to broaden, not restrict, the remedies available to union members. See 140 N.L.R.B. at 184-186. [Footnote 10] Pegging the duty of fair representation to the Board's definition of unfair labor practices would make the two redundant, despite their different purposes, and would eliminate some of the prime virtues of the duty of fair representation -- flexibility and adaptability. See Vaca, 386 U.S. at 386 U. S. 182-183.The duty of fair representation is not intended to mirror the contours of § 8(b); rather, it arises independently from Page 493 U. S. 87 the grant under § 9(a) of the NLRA, 29 U.S.C. § 159(a) (1982 ed.), of the union's exclusive power to represent all employees in a particular bargaining unit. It serves as a"bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law."Vaca, 386 U.S. at 386 U. S. 182; see also NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 388 U. S. 181 (1967) ("It was because the national labor policy vested unions with power to order the relations of employees with their employer that this Court found it necessary to fashion the duty of fair representation"). Respondent's argument assumes that enactment of the LMRA in 1947 somehow limited a union's duty of fair representation according to the unfair labor practices specified in § 8(b). We have never adopted such a view, and we decline to do so today.(2)Second, respondent insists that petitioner has failed to state a claim because in the hiring hall setting a union is acting essentially as an employer in matching up job requests with available personnel. Because a union does not "represent" the employees as a bargaining agent in such a situation, respondent argues that it should be relieved entirely of its duty of fair representation. [Footnote 11]We cannot accept this proposed analogy. Only because of its status as a Board-certified bargaining representative Page 493 U. S. 88 and by virtue of the power granted to it by the collective bargaining agreement does a union gain the ability to refer workers for employment through a hiring hall. Together with this authority comes the responsibility to exercise it in a nonarbitrary and nondiscriminatory fashion, because the members of the bargaining unit have entrusted the union with the task of representing them. That the particular function of job referral resembles a task that an employer might perform is of no consequence. The key is that the union is administering a provision of the contract, something that we have always held is subject to the duty of fair representation."The undoubted broad authority of the union as exclusive bargaining agent in the negotiation and administration of a collective bargaining contract is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation."Humphrey v. Moore, 375 U. S. 335, 375 U. S. 342 (1964) (emphasis added). See Communications Workers v. Beck, 487 U.S. at 487 U. S. 739; Hines v. Anchor Motor Freight, Inc., 424 U. S. 554, 424 U. S. 564 (1976); see also Electrical Workers v. Hechler, 481 U.S. at 481 U. S. 861-862; id. at 865 (STEVENS, J., concurring in part and dissenting in part).In Vaca v. Sipes, supra, for example, we held that a union has a duty of fair representation in grievance arbitration, despite the fact that NLRA § 9(a) expressly reserves the right of"any individual employee or group of employees . . . to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect."The union in Vaca exercised power over grievances because the contract so provided, not because the NLRA required such an arrangement. Hence, the observation that a contract might provide for the operation of a hiring hall directly by a consortium of interested employers rather than a union is irrelevant; the same might have been said about the system for processing grievances in Vaca. In Page 493 U. S. 89 short, a union does not shed its duty of fair representation merely because it is allocating job openings among competing applicants, something that might be seen as similar to what an employer does.The union's assumption in the hiring hall of what respondent believes is an "employer's" role in no way renders the duty of fair representation inapplicable. When management administers job rights outside the hiring hall setting, arbitrary or discriminatory acts are apt to provoke a strong reaction through the grievance mechanism. In the union hiring hall, however, there is no balance of power. If respondent is correct that in a hiring hall the union has assumed the mantle of employer, then the individual employee stands alone against a single entity: the joint union/employer. An improperly functioning hiring hall thus resembles a closed shop,"'with all of the abuses possible under such an arrangement, including discrimination against employees, prospective employees, members of union minority groups, and operation of a closed union.'"Teamsters v. NLRB, 365 U.S. at 365 U. S. 674 (quoting S.Rep. No. 1827, 81st Cong., 2d Sess., 14 (1947)); see also Note, Unilateral Union Control of Hiring Halls: The Wrong and the Remedy, 70 Yale L.J. 661, 674 (1961). In sum, if a union does wield additional power in a hiring hall by assuming the employer's role, its responsibility to exercise that power fairly increases, rather than decreases. That has been the logic of our duty of fair representation cases since Steele v. Louisville & Nashville R. Co., 323 U.S. at 323 U. S. 200. [Footnote 12] Page 493 U. S. 90We reject respondent's contention that petitioner's complaint fails to state a fair representation claim.IIIThe Court of Appeals rejected petitioner's LMRDA claim on the ground that petitioner had failed to show that he was "otherwise disciplined" within the meaning of LMRDA §§ 101(a)(5) and 609, 29 U.S.C. §§ 411(a)(5) and 529 (1982 ed.). These provisions make it unlawful for a union to "fine, suspend, expel or otherwise discipline" any of its members for exercising rights secured under the LMRDA. [Footnote 13] The Court of Appeals reasoned that because "[h]iring hall referrals . . . are available to nonmembers as well as to members," 849 F.2d at 999, and the hiring hall was not an exclusive source of employment for sheet metal workers, petitioner did not suffer discrimination on the basis of rights he held by virtue of his membership in the union. We affirm the Court of Appeals' conclusion, although we do not adopt its reasoning. [Footnote 14]In Finnegan v. Leu, 456 U. S. 431 (1982), we held that removal from appointive union employment is not within the scope of § 609's prohibitions, because that section was"meant to refer only to punitive actions diminishing membership rights, and not to termination of a member's status as an appointed union employee."Id. at 456 U. S. 438 (footnote omitted). Page 493 U. S. 91 Petitioner, joined by the United States as amicus curiae, argues that the Court of Appeals misapplied our reasoning in Finnegan, because Congress could not have intended to prohibit a union from expelling a member of the rank-and-file from a members-only hall for his political opposition to the union leadership, but to permit the leadership to impose the same sanction if the hiring hall included a few token nonmembers as well. Either way, the purpose of the Act would hardly be served if a union were able to coerce its members into obedience by threatening them with a loss of job referrals. Under the reading urged by the United States, Finnegan held only that the LMRDA does not protect the positions and perquisites enjoyed exclusively by union leaders; it did not narrow the protections available to "nonpolicymaking employees, that is, rank-and-file member-employees." Finnegan, 456 U.S. at 456 U. S. 443 (BLACKMUN, J., concurring).We need not decide the precise import of the language and reasoning of Finnegan, however, because we find that, by using the phrase "otherwise discipline," Congress did not intend to include all acts that deterred the exercise of rights protected under the LMRDA, but rather meant instead to denote only punishment authorized by the union as a collective entity to enforce its rules. "Discipline is the criminal law of union government." Summers, The Law of Union Discipline, 70 Yale L.J. 175, 178 (1960). The term refers only to actions "undertaken under color of the union's right to control the member's conduct in order to protect the interests of the union or its membership." Miller v. Holden, 535 F.2d 912, 915 (CA5 1976).Our construction of the statute is buttressed by its structure. First, the specifically enumerated types of discipline -- fine, expulsion, and suspension -- imply some sort of established disciplinary process rather than ad hoc retaliation Page 493 U. S. 92 by individual union officers. [Footnote 15] See 2A C. Sands, Sutherland on Statutory Construction § 47.17, p. 166 (4th ed. 1984) (ejusdem generis). Second, § 101(a)(5) includes procedural protections -- "written specific charges" served before discipline is imposed, "a reasonable time" in which to prepare a defense, and a "full and fair hearing" -- that would not apply to instances of unofficial, sub rosa discrimination. These protections contemplate imposition of discipline through the type of procedure we encountered in Boilermakers v. Hardeman, 401 U. S. 233, 401 U. S. 236-237 (1971) (expulsion after trial before union committee, with subsequent internal union review). The fact that § 101(a)(5) does not prohibit union discipline altogether, but rather seeks to provide "safeguards against improper disciplinary action," indicates that "discipline" refers to punishment that a union can impose by virtue of its own authority over its members. A hiring hall could hardly be expected to provide a hearing before every decision not to refer an individual to a job.The legislative history supports this interpretation of "discipline." Early drafts of § 101(a)(5), for example, contained elaborate lists of "due process protections," such as the presumption of innocence, venue restrictions, the right to counsel, the right to confront and cross-examine witnesses, and Page 493 U. S. 93 other guarantees typically found in the criminal context. [Footnote 16] Congress envisioned that "discipline" would entail the imposition of punishment by a union acting in its official capacity. See 105 Cong.Rec. 5812 (1959) (remarks of Sen. McClellan) (referring to "safeguards . . . against improper disciplinary action" as procedures that must be followed before a union member can be "expelled or punished," "tried," or "suspend[ed]" by the union); id. at 6023 (remarks of Sen. Kuchel) (noting that discipline may be imposed only on "the usual reasonable constitutional basis upon which [criminal] charges might be brought").A forerunner of § 101(a)(5) in the Senate provided criminal penalties for both improper "discipline" by "any labor organization, its officers, agents, representatives, or employees" and the use by"any person . . . of force or violence, or . . . economic reprisal or threat thereof, to restrain, coerce, or intimidate, or attempt to restrain, coerce, or intimidate any member of a labor organization for the purpose of interfering with or preventing the exercising by such member of any right to which he is entitled under the provisions of this Act."S. 1555, as reported, 86th Cong., 1st Sess., 53 (1959) (emphasis added); see also S.Rep. No. 187, 86th Cong., 1st Sess., 5354, 94 (1959), U.S.Code Cong. & Admin. News, 1959, p. 2318; 105 Cong.Rec. 15120 (1959) (comments of Sen. Goldwater). Although S. 1555 was not passed in this form by the Senate, [Footnote 17] the fact that, even in an earlier bill, improper discipline by a labor organization was listed separately from economic coercion by any person shows that the Page 493 U. S. 94 Senate believed that the two were distinct, and that it did not intend to include the type of unauthorized "economic reprisals" suffered by petitioner in the instant case in its definition of "discipline." The bipartisan compromise bill introduced by Representatives Landrum and Griffin, which amended S. 1555 after its passage by the Senate, substituted civil remedies for the criminal penalties. Rep. Griffin explained that the bill covered only the "denial of . . . rights through union discipline," 105 Cong.Rec. 13091 (1959) (emphasis added), an apparent reference to penalties imposed by the union in its official capacity as a labor organization. Discipline "must be done in the name of or on behalf of the union as an organizational entity." Etelson & Smith, Union Discipline Under the Landrum-Griffin Act, 82 Harv.L.Rev. 727, 732 (1969).In the instant case, petitioner alleged only that the union business manager and business agent failed to refer him for employment because he supported one of their political rivals. He did not allege acts by the union amounting to "discipline" within the meaning of the statute. According to his complaint, he was the victim of the personal vendettas of two union officers. The opprobrium of the union as an entity, however, was not visited upon petitioner. He was not punished by any tribunal, nor was he the subject of any proceedings convened by respondent. In sum, petitioner has not alleged a violation of §§ 101(a)(5) and 609, and the Court of Appeals correctly dismissed his claim under the LMRDA. [Footnote 18] Page 493 U. S. 95IVWe express no view regarding the merits of petitioner's claim. We hold only that the Court of Appeals erred when it determined that the District Court lacked jurisdiction over the suit, but that the Court of Appeals correctly found that petitioner failed to state a claim under §§ 101(a)(5) and 609 of the LMRDA. We remand the cause for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtBreininger v. SMW Int'l, 493 U.S. 67 (1989)Breininger v. Sheet Metal Workers InternationalAssociation Local Union No. 6No. 88-124Argued Oct. 10, 1989Decided Dec. 5, 1989493 U.S. 67SyllabusPursuant to a multi-employer collective bargaining agreement, respondent union operates a hiring hall through which it refers both members and nonmembers for work at the request of employers. The hiring hall is "nonexclusive," in that workers are free to seek employment through other means, and employers are not restricted to hiring persons recommended by the union. Petitioner, a member of the union, filed suit alleging that respondent: (1) violated §§ 101(a)(5) and 609 of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) -- which forbid a union to "fine, suspend, expe[l] or otherwise discipline" a member for exercising LMRDA-secured rights -- by refusing to refer him through the hiring hall as a result of his political opposition to respondent's leadership; and (2) breached its duty of fair representation under the National Labor Relations Act (NLRA) by discriminating against him in respect to such referrals. The District Court dismissed the suit on the ground that discrimination in hiring hall referrals constitutes an unfair labor practice subject to the exclusive jurisdiction of the National Labor Relations Board (NLRB or Board). The Court of Appeals affirmed, ruling that fair representation claims must be brought before the Board, and that petitioner had failed to state a claim under the LMRDA.Held:1. The District Court did not lack jurisdiction over petitioner's fair representation suit. Pp. 493 U. S. 73-90.(a) The NLRB does not have exclusive jurisdiction over a union member's claim that his union breached its duty of fair representation by discriminating against him in job referrals made by the union hiring hall. The fact that the alleged violation of respondent's duty of fair representation might also be an unfair labor practice, over which state and federal courts lack jurisdiction under San Diego Building Trades Council v. Garmon, 359 U. S. 236, 359 U. S. 245, did not deprive the District Court of jurisdiction over petitioner's fair representation claim, since Vaca v. Sipes, 386 U. S. 171, held that Garmon's preemption rule does not extend to suits alleging such claims. No exception to the Vaca rule can be created for fair representation complaints arising out of the operation of hiring Page 493 U. S. 68 halls on the ground that the NLRB has developed substantial expertise in dealing with hiring hall policies. Such a rule would remove an unacceptably large number of fair representation claims from federal courts, since the NLRB has developed an unfair labor practice jurisprudence in many areas traditionally encompassed by the duty of fair representation. Decisions of this Court containing language recognizing the need for a single expert federal agency to adjudicate difficult hiring hall problems are distinguished, since those cases focused on whether exclusive hiring halls had encouraged union membership impermissibly as forbidden by the NLRA, rather than on whether unions have administered properly out-of-work lists as required by their duty of fair representation. Also distinguished are the Court's decisions holding that state court hiring hall suits are preempted by NLRB jurisdiction, since state law claims frequently involve tort, contract, and other substantive areas of law that have developed independently of federal labor law, whereas the duty of fair representation has "judicially evolved" as part of federal labor law and is unlikely generally to create conflicts with the operative realities of federal labor policy. The Court of Appeals' holding that an employee cannot prevail in a fair representation suit against his union if he fails to allege that his employer breached the collective bargaining agreement constitutes a misstatement of existing law. Although Vaca recognized the desirability of having the same entity adjudicate a joint fair representation/breach of contract action, it in no way implied that a fair representation action requires a concomitant claim against the employer. Independent federal court jurisdiction exists over fair representation claims because the duty of fair representation is implied from the NLRA's grant of exclusive representation status to unions, such that the claims "aris[e] under a[n] Act of Congress regulating commerce" within the meaning of 28 U.S.C. § 1337(a), the pertinent jurisdictional provision. Moreover, a fair representation claim is a separate cause of action from any possible suit against the employer. Thus, this Court declines to adopt a rule that exclusive jurisdiction lies in the NLRB over any fair representation suit whose hypothetical accompanying claim against the employer might be raised before the Board. Pp. 493 U. S. 73-84.(b) Petitioner has not failed to allege a fair representation claim. There is no merit to respondent's contention that it did not breach its duty of fair representation because that duty should be defined in terms of what is an unfair labor practice, and because it committed no such practice, since the NLRA forbids only union discrimination based on union membership or lack thereof, and not on any other form of maladministration of a job-referral system. Equating breaches of the duty of fair representation with unfair labor practices would make the two redundant, despite their different purposes, and would eliminate some Page 493 U. S. 69 of the prime virtues of the fair representation duty -- flexibility and adaptability. That duty is not intended to mirror the contours of unfair labor practices, but arises independently in order to prevent arbitrary conduct against individuals deprived by the NLRA of traditional forms of redress against unions. Also without merit is respondent's contention that it should be relieved of its duty of fair representation because, in the hiring hall context, it is acting essentially as an employer in matching up job requests with available personnel, and therefore does not "represent" the employees as a bargaining agent. That the particular function of job referral resembles a task that an employer might perform is of no consequence, since the union is administering a provision of the collective bargaining agreement, and is therefore subject to the duty of fair representation. Humphrey v. Moore, 375 U. S. 335, 375 U. S. 342. In fact, if a union assumes the employer's role in a hiring hall, its responsibility to exercise its power fairly increases, rather than decreases, since the individual employee then stands alone against a single entity, the joint union/employer. Pp. 493 U. S. 84-90.2. Respondent's alleged refusal to refer petitioner to employment through the union hiring hall as a result of his political opposition to the union's leadership does not give rise to a claim under §§ 101(a)(5) and 609 of the LMRDA. By using the phrase "otherwise discipline," those sections demonstrate a congressional intent to denote only punishment authorized by the union as a collective entity to enforce its rules, and not to include all acts that deterred the exercise of LMRDA-protected rights. The construction that the term refers only to actions undertaken under color of the union's right to control the member's conduct in order to protect the interests of the union or its membership is buttressed by the legislative history and by the statute's structure, which specifically enumerates types of discipline -- fine, expulsion, and suspension -- that imply some sort of established disciplinary process, rather than ad hoc retaliation by individual union officers, and which, in § 101(a)(5), includes procedural safeguards designed to protect against improper disciplinary action -- "written specific charges," "a reasonable time to prepare a defense," and a "full and fair hearing" -- that would apply to the type of procedure encountered in Boilermakers v. Hardeman, 401 U. S. 233, 402 U. S. 236-237, whereby a union imposes "discipline" by virtue of its own authority over its members, and not to instances of unofficial, sub rosa discrimination. Here, the opprobrium of the union as an entity was not visited on petitioner, since he has alleged only that he was the victim of personal vendettas of union officers, and not that he was punished by any tribunal or subjected to any proceedings convened by respondent.849 F.2d 997, (CA 6 1988), affirmed in part, reversed in part, and remanded. Page 493 U. S. 70BRENNAN, J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Part III, in which REHNQUIST, C.J., and WHITE, MARSHALL, BLACKMUN, O'CONNOR, and KENNEDY, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which SCALIA, J., joined, post, p. 493 U. S. 95.

1988_88-40

JUSTICE BLACKMUN delivered the opinion of the Court.This case arises out of the efforts of the Criminal Investigation Division of the Internal Revenue Service (IRS) to investigate the tax returns of L. Ron Hubbard, founder of the Church of Scientology (the Church), for the calendar years 1979 through 1983. We granted certiorari, 488 U.S. 907 (1988), to consider two issues that have divided the Courts of Appeals. The first is whether, when a district court enforces an IRS summons, see 26 U.S.C. § 7604, the court may condition its enforcement order by placing restrictions on the disclosure of the summoned information. [Footnote 1] The Court of Appeals in this case upheld the restrictions. We affirm its judgment on that issue by an equally divided Court.The second issue concerns the testimonial privilege for attorney-client communications and, more particularly, the generally recognized exception to that privilege for communications in furtherance of future illegal conduct -- the so-called "crime-fraud" exception. The specific question presented is whether the applicability of the crime-fraud exception must be established by "independent evidence" (i.e., without reference to the content of the contested communications themselves) or, alternatively, whether the applicability of that exception can be resolved by an in camera inspection of the allegedly privileged material. [Footnote 2] We reject the "independent evidence" approach and hold that the district court, under Page 491 U. S. 557 circumstances we explore below, and at the behest of the party opposing the claim of privilege, may conduct an in camera review of the materials in question. Because the Court of Appeals considered only "independent evidence," we vacate its judgment on this issue and remand the case for further proceedings. [Footnote 3]IIn the course of its investigation, the IRS sought access to 51 documents that had been filed with the Clerk of the Los Angeles County Superior Court in connection with a case entitled Church of Scientology of California v. Armstrong, No. C420 153. The Armstrong litigation involved, among other things, a charge by the Church that one of its former members, Gerald Armstrong, had obtained by unlawful means documentary materials relating to Church activities, including two tapes. Some of the documents sought by the IRS had been filed under seal.The IRS, by its Special Agent Steven Petersell, served a summons upon the Clerk on October 24, 1984, pursuant to 26 U.S.C. § 7603, demanding that he produce the 51 documents. [Footnote 4] The tapes were among those listed. App. 33-38. On November 21, IRS agents were permitted to inspect and copy some of the summoned materials, including the tapes.On November 27, the Church and Mary Sue Hubbard, who had intervened in Armstrong, secured a temporary restraining Page 491 U. S. 558 order from the United States District Court for the Central District of California. The order required the IRS to file with the District Court all materials acquired on November 21 and all reproductions and notes related thereto, pending disposition of the intervenors' motion for a preliminary injunction to bar IRS use of these materials. Exh. 2 to Petition to Enforce Internal Revenue Summons. By order dated December 10, the District Court returned to the IRS all materials except the tapes and the IRS' notes reflecting their contents. See App. 30.On January 18, 1985, the IRS filed in the District Court a petition to enforce its summons. In addition to the tapes, the IRS sought 12 sealed documents the Clerk had refused to produce in response to the IRS summons. The Church and Mary Sue Hubbard intervened to oppose production of the tapes and the sealed documents. Respondents claimed that IRS was not seeking the documents in good faith, and objected on grounds of lack of relevance and attorney-client privilege.Respondents asserted the privilege as a bar to disclosure of the tapes. The IRS argued, among other things, however, that the tapes fell within the crime-fraud exception to the attorney-client privilege, and urged the District Court to listen to the tapes in the course of making its privilege determination. In addition, the IRS submitted to the court two declarations by Agent Petersell. In the first, Petersell stated his grounds for believing that the tapes were relevant to the investigation. See Declaration in No. CV850440-HLH, � 3 (March 8, 1985). In the second, Petersell offered a description of the tapes' contents, based on information he received during several interviews. Appended to this declaration -- over respondents' objection -- were partial transcripts of the tapes, which the IRS lawfully had obtained from a confidential source. See March 15, 1985, declaration Page 491 U. S. 559 (filed under seal). [Footnote 5] In subsequent briefing, the IRS reiterated its request that the District Court listen to the tapes in camera before making its privilege ruling.After oral argument and an evidentiary hearing, the District Court rejected respondents' claim of bad faith. App. to Pet. for Cert. 27a. The court ordered production of 5 of the 12 documents, id. at 28a, and specified:"The documents delivered hereunder shall not be delivered to any other government agency by the IRS unless criminal tax prosecution is sought or an Order of Court is obtained."Id. at 28a.Turning to the tapes, the District Court ruled that respondents had demonstrated that they contain confidential attorney-client communications, that the privilege had not been waived, and that"[t]he 'fraud-crime' exception to the attorney-client privilege does not apply. The quoted excerpts tend to show or admit past fraud, but there is no clear indication that future fraud or crime is being planned."Id. at 28a. On this basis, the court held that the Clerk "need not produce its copy of the tapes pursuant to the summons." Id. at 28a. The District Court denied the IRS' motion for reconsideration, rejecting the IRS' renewed request that the court listen to the tapes in toto."While this was at one time discussed with counsel, thereafter Mr. Petersell's declaration was submitted, and no one suggested that this Page 491 U. S. 560 was an inadequate basis on which to determine the attorney-client privilege question."Id. at 25a-26a.Respondents appealed to the Court of Appeals for the Ninth Circuit, and the IRS cross-appealed on two relevant grounds. First, the IRS claimed that the District Court abused its discretion by placing conditions on the IRS' future use of the subpoenaed information. The Court of Appeals disagreed, holding:"A district court may, when appropriate, condition enforcement of a summons on the IRS' agreeing to abide by disclosure restrictions."809 F.2d 1411, 1417 (1987).Second, the IRS contended that the District Court erred in rejecting the application of the crime-fraud exception to the tapes. In particular, the IRS argued that the District Court incorrectly held that the IRS had abandoned its request for in camera review of the tapes, and that the court should have listened to the tapes before ruling that the crime-fraud exception was inapplicable. Answering Brief for United States as Appellee in No. 85-6065, and Opening Brief for United States as Cross-Appellant in No. 85-6105 (CA9), pp. 48-49 (filed under seal). Respondents contended, in contrast, that the District Court erred in the opposite direction: they argued that it was error for the court to rely on the partial transcripts, because,"[i]n this Circuit, a party cannot rely on the communications themselves -- whether by listening to the tapes or reviewing excerpts or transcripts of them -- to bear its burden to invoke the exception, but must bear the burden by independent evidence. This is the clear and unambiguous holding of United States v. Shewfelt, 455 F.2d 836 (9th Cir.), cert. denied, 406 U.S. 944 (1972)."(Emphasis added.) Answering Brief for Church of Scientology of California and Mary Sue Hubbard as Cross-Appellees in No. 85-6065, and Reply Brief as Appellants in No. 85-6105 (CA9), p. 24 (filed under seal).The panel of the Court of Appeals agreed with respondents that, under Shewfelt,"the Government's evidence of crime or Page 491 U. S. 561 fraud must come from sources independent of the attorney-client communications recorded on the tapes,"809 F.2d at 1418, thereby implicitly holding that, even if the IRS had properly preserved its demand for in camera review, the District Court would have been without power to grant it. The Court of Appeals then reviewed "the Government's independent evidence." Id. at 1418-1419. That review appears to have excluded the partial transcripts, and thus the Court of Appeals implicitly agreed with respondents that it was improper for the District Court to have considered even the partial transcripts. See Brief for United States 7. On the basis of its review of the "independent evidence," the Court of Appeals affirmed the District Court's determination that the IRS had failed to establish the applicability of the crime-fraud exception. 809 F.2d at 1419.The full Court of Appeals vacated the panel opinion and ordered en banc review on the basis of a perceived conflict between Shewfelt and United States v. Friedman, 445 F.2d 1076 (CA9), cert. denied sub nom. Jacobs v. United States, 404 U.S. 958 (1971). 832 F.2d 127 (1987). Upon consideration, a majority of the limited en banc court, see Ninth Circuit Rule 35-3, determined that the intracircuit conflict was illusory; it agreed with respondents that Friedman did not address the independent evidence rule. 832 F.2d 1135, 1136 (1988), amended by 850 F.2d 610 (1988). The limited en banc court vacated the order for rehearing en banc as improvidently granted, and reinstated the panel opinion in relevant part. Ibid.IIThis Court is evenly divided with respect to the issue of the power of a district court to place restrictions upon the dissemination by the IRS of information obtained through a § 7604 subpoena enforcement action. We therefore affirm the judgment of the Court of Appeals insofar as it upheld the District Court's conditional enforcement order. Page 491 U. S. 562IIIQuestions of privilege that arise in the course of the adjudication of federal rights are "governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Fed.Rule Evid. 501. We have recognized the attorney-client privilege under federal law, as "the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States, 449 U. S. 383, 449 U. S. 389 (1981). Although the underlying rationale for the privilege has changed over time, see 8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961), [Footnote 6] courts long have viewed its central concern as one"to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice."Upjohn, 449 U.S. at 449 U. S. 389. That purpose, of course, requires that clients be free to "make full disclosure to their attorneys" of past wrongdoings, Fisher v. United States, 425 U. S. 391, 425 U. S. 403 (1976), in order that the client may obtain "the aid of persons having knowledge of the law and skilled in its practice," Hunt v. Blackburn, 128 U. S. 464, 128 U. S. 470 (1888).The attorney-client privilege is not without its costs. Cf. Trammel v. United States, 445 U. S. 40, 445 U. S. 50 (1980)."[S]ince the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose."Fisher, 425 U.S. at 425 U. S. 403. The attorney-client privilege must necessarily protect the confidences of wrongdoers, but the reason for that protection -- the centrality of open client and attorney communication to the proper functioning of our adversary system of justice -- "ceas[es] to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but Page 491 U. S. 563 to future wrongdoing." 8 Wigmore, § 2298, p. 573 (emphasis in original); see also Clark v. United States, 289 U. S. 1, 289 U. S. 15 (1933). It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the "seal of secrecy," ibid., between lawyer and client does not extend to communications "made for the purpose of getting advice for the commission of a fraud" or crime. O'Rourke v. Darbishire, [1920] A. C. 581, 604 (P.C.).The District Court and the Court of Appeals found that the tapes at issue in this case recorded attorney-client communications, and that the privilege had not been waived when the tapes were inadvertently given to Armstrong. 809 F.2d at 1417 (noting that Armstrong had acquired the tapes from L. Ron Hubbard's personal secretary, who was under the mistaken impression that the tapes were blank). These findings are not at issue here. Thus, the remaining obstacle to respondents' successful assertion of the privilege is the Government's contention that the recorded attorney-client communications were made in furtherance of a future crime or fraud.A variety of questions may arise when a party raises the crime-fraud exception. The parties to this case have not been in complete agreement as to which of these questions are presented here. In an effort to clarify the matter, we observe, first, that we need not decide the quantum of proof necessary ultimately to establish the applicability of the crime-fraud exception. Cf. Clark, 289 U.S. at 289 U. S. 15, quoting O'Rourke; S. Stone & R. Liebman, Testimonial Privileges § 1.65, p. 107 (1983). [Footnote 7] Rather, we are concerned here with Page 491 U. S. 564 the type of evidence that may be used to make that ultimate showing. Within that general area of inquiry, the initial question in this case is whether a district court, at the request of the party opposing the privilege, may review the allegedly privileged communications in camera to determine whether the crime-fraud exception applies. [Footnote 8] If such in camera review is permitted, the second question we must consider is whether some threshold evidentiary showing is needed before the district court may undertake the requested Page 491 U. S. 565 review. Finally, if a threshold showing is required, we must consider the type of evidence the opposing party may use to meet it: i.e., in this case, whether the partial transcripts the IRS possessed may be used for that purpose.AWe consider first the question whether a district court may ever honor the request of the party opposing the privilege to conduct an in camera review of allegedly privileged communications to determine whether those communications fall within the crime-fraud exception. We conclude that no express provision of the Federal Rules of Evidence bars such use of in camera review, and that it would be unwise to prohibit it in all instances as a matter of federal common law. [Footnote 9](1)At first blush, two provisions of the Federal Rules of Evidence would appear to be relevant. Rule 104(a) provides:"Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court. . . . In making its determination it is not bound by the rules of evidence except those with respect to privileges."(Emphasis added.) Rule 1101(c) provides: "The rule with respect to Page 491 U. S. 566 privileges applies at all stages of all actions, cases, and proceedings." Taken together, these Rules might be read to establish that, in a summons-enforcement proceeding, attorney-client communications cannot be considered by the district court in making its crime-fraud ruling: to do otherwise, under this view, would be to make the crime-fraud determination without due regard to the existence of the privilege.Even those scholars who support this reading of Rule 104(a) acknowledge that it leads to an absurd result."Because the judge must honor claims of privilege made during his preliminary fact determinations, many exceptions to the rules of privilege will become 'dead letters,' since the preliminary facts that give rise to these exceptions can never be proved. For example, an exception to the attorney-client privilege provides that there is no privilege if the communication was made to enable anyone to commit a crime or fraud. There is virtually no way in which the exception can ever be proved, save by compelling disclosure of the contents of the communication; Rule 104(a) provides that this cannot be done."21 C. Wright & K. Graham, Federal Practice & Procedure: Evidence § 5055, p. 276 (1977) (footnote omitted).We find this Draconian interpretation of Rule 104(a) inconsistent with the Rule's plain language. The Rule does not provide by its terms that all materials as to which a "clai[m] of privilege" is made must be excluded from consideration. In that critical respect, the language of Rule 104(a) is markedly different from the comparable California evidence rule, which provides that"the presiding officer may not require disclosure of information claimed to be privileged under this division in order to rule on the claim of privilege."Cal.Evid.Code Ann. § 915(a) (West Supp. 1989) (emphasis Page 491 U. S. 567 added). [Footnote 10] There is no reason to read Rule 104(a) as if its text were identical to that of the California rule.Nor does it make sense to us to assume, as respondents have throughout this litigation, that, once the attorney-client nature of the contested communications is established, those communications must be treated as presumptively privileged for evidentiary purposes until the privilege is "defeated" or "stripped away" by proof that the communications took place in the course of planning future crime or fraud. See Brief for Respondents 15 (asserting that respondents had "established their entitlement to the privilege," and that the communications had been "determined to be privileged," before the crime-fraud question was resolved). Although some language in Clark might be read as supporting this view, see 289 U.S. at 289 U. S. 15, respondents acknowledged at oral argument that no prior holding of this Court requires the imposition of a strict progression of proof in crime-fraud cases. See Tr. of Oral Arg. 33-35. Page 491 U. S. 568We see no basis for holding that the tapes in this case must be deemed privileged under Rule 104(a) while the question of crime or fraud remains open. Indeed, respondents concede that "if the proponent of the privilege is able to sustain its burden only by submitting the communications to the court" for in camera review, Brief for Respondents 14-15 (emphasis in original), the court is not required to avert its eyes (or close its ears) once it concludes that the communication would be privileged, if the court found the crime-fraud exception inapplicable. Rather, respondents acknowledge that the court may"then consider the same communications to determine if the opponent of the privilege has established that the crime-fraud exception applies."Id. at 15. Were the tapes truly deemed privileged under Rule 104(a) at the moment the trial court concludes they contain potentially privileged attorney-client communications, district courts would be required to draw precisely the counterintuitive distinction that respondents wisely reject. We thus shall not adopt a reading of Rule 104(a) that would treat the contested communications as "privileged" for purposes of the Rule, and we shall not interpret Rule 104(a) as categorically prohibiting the party opposing the privilege on crime-fraud grounds from relying on the results of an in camera review of the communications.(2)Having determined that Rule 104(a) does not prohibit the in camera review sought by the IRS, we must address the question as a matter of the federal common law of privileges. See Rule 501. We conclude that a complete prohibition against opponents' use of in camera review to establish the applicability of the crime-fraud exception is inconsistent with the policies underlying the privilege.We begin our analysis by recognizing that disclosure of allegedly privileged materials to the district court for purposes of determining the merits of a claim of privilege does not have the legal effect of terminating the privilege. Indeed, this Page 491 U. S. 569 Court has approved the practice of requiring parties who seek to avoid disclosure of documents to make the documents available for in camera inspection, see Kerr v. United States District Court for Northern District of Cal., 426 U. S. 394, 426 U. S. 404-405 (1976), and the practice is well established in the federal courts. See, e.g., In re Antitrust Grand Jury, 805 F.2d 155, 168 (CA6 1986); In re Vargas, 723 F.2d 1461, 1467 (CA10 1983); United States v. Lawless, 709 F.2d 485, 486, 488 (CA7 1983); In re Grand Jury Witness, 695 F.2d 359, 362 (CA9 1982). Respondents do not dispute this point; they acknowledge that they would have been free to request in camera review to establish the fact that the tapes involved attorney-client communications, had they been unable to muster independent evidence to serve that purpose. Brief for Respondents 14-15.Once it is clear that in camera review does not destroy the privileged nature of the contested communications, the question of the propriety of that review turns on whether the policies underlying the privilege and its exceptions are better fostered by permitting such review or by prohibiting it. In our view, the costs of imposing an absolute bar to consideration of the communications in camera for purpose of establishing the crime-fraud exception are intolerably high."No matter how light the burden of proof which confronts the party claiming the exception, there are many blatant abuses of privilege which cannot be substantiated by extrinsic evidence. This is particularly true . . . of . . . situations in which an alleged illegal proposal is made in the context of a relationship which has an apparent legitimate end."Note, The Future Crime or Tort Exception to Communications Privileges, 77 Harv.L.Rev. 730, 737 (1964). A per se rule that the communications in question may never be considered creates, we feel, too great an impediment to the proper functioning of the adversary process. See generally 2 D. Louisell & C. Mueller, Federal Evidence § 213, pp. 828-829 (1985); 2 J. Weinstein & M. Berger, Weinstein's Evidence Page 491 U. S. 570 � 11503(d)(1)[01], p. 503-71 (1988). This view is consistent with current trends in the law. Compare National Conference of Commissioners on Uniform State Laws, Uniform Rules of Evidence, Rule 26(2)(a) (1953 ed.) ("Such privileges shall not extend . . . to a communication if the judge finds that sufficient evidence, aside from the communication, has been introduced to warrant a finding that the legal service was sought or obtained in order to enable or aid the client to commit or plan to commit a crime or a tort" (emphasis added)), reprinted in 1 J. Bailey & 0. Trelles, The Federal Rules of Evidence: Legislative Histories and Related Documents (1980), with Uniform Rule of Evidence 502 (adopted 1974), 13A U.L.A. 256 (1986) (omitting explicit independent evidence requirement).BWe turn to the question whether in camera review at the behest of the party asserting the crime-fraud exception is always permissible, or, in contrast, whether the party seeking in camera review must make some threshold showing that such review is appropriate. In addressing this question, we attend to the detrimental effect, if any, of in camera review on the policies underlying the privilege and on the orderly administration of justice in our courts. We conclude that some such showing must be made.Our endorsement of the practice of testing proponents' privilege claims through in camera review of the allegedly privileged documents has not been without reservation. This Court noted in United States v. Reynolds, 345 U. S. 1 (1953), a case which presented a delicate question concerning the disclosure of military secrets, that "examination of the evidence, even by the judge alone, in chambers" might in some cases "jeopardize the security which the privilege is meant to protect." Id. at 345 U. S. 10. Analogizing to claims of Fifth Amendment privilege, it observed more generally:"Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect, Page 491 U. S. 571 while a complete abandonment of judicial control would lead to intolerable abuses."Id. at 345 U. S. 8.The Court in Reynolds recognized that some compromise must be reached. See also United States v. Weisman, 111 F.2d 260, 261-262 (CA2 1940). In Reynolds, it declined to "go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case." 345 U.S. at 345 U. S. 10 (emphasis added). We think that much the same result is in order here.A blanket rule allowing in camera review as a tool for determining the applicability of the crime-fraud exception, as Reynolds suggests, would place the policy of protecting open and legitimate disclosure between attorneys and clients at undue risk. There is also reason to be concerned about the possible due process implications of routine use of in camera proceedings. See, e.g., In re John Doe Corp., 675 F.2d 482, 489-490 (CA2 1982); In re Special September 1978 Grand Jury, 640 F.2d 49, 56-58 (CA7 1980). Finally, we cannot ignore the burdens in camera review places upon the district courts, which may well be required to evaluate large evidentiary records without open adversarial guidance by the parties.There is no reason to permit opponents of the privilege to engage in groundless fishing expeditions, with the district courts as their unwitting (and perhaps unwilling) agents. Courts of Appeals have suggested that in camera review is available to evaluate claims of crime or fraud only "when justified," In re John Doe Corp., 675 F.2d at 490, or "[i]n appropriate cases," In re Sealed Case, 219 U.S.App.D.C. 195, 217, 676 F.2d 793, 815 (1982) (opinion of Wright, J.). Indeed, the Government conceded at oral argument (albeit reluctantly) that a district court would be mistaken if it reviewed documents in camera solely because "the government beg[ged it]" to do so, "with no reason to suspect crime or fraud." Tr. of Oral Arg. 26; see also id. at 60. We agree. Page 491 U. S. 572In fashioning a standard for determining when in camera review is appropriate, we begin with the observation that "in camera inspection . . . is a smaller intrusion upon the confidentiality of the attorney-client relationship than is public disclosure." Fried, Too High a Price for Truth: The Exception to the Attorney-Client Privilege for Contemplated Crimes and Frauds, 64 N. C.L.Rev. 443, 467 (1986). We therefore conclude that a lesser evidentiary showing is needed to trigger in camera review than is required ultimately to overcome the privilege. Ibid. The threshold we set, in other words, need not be a stringent one.We think that the following standard strikes the correct balance. Before engaging in in camera review to determine the applicability of the crime-fraud exception, "the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person," Caldwell v. District Court, 644 P.2d 26, 33 (Colo. 1982), that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.Once that showing is made, the decision whether to engage in in camera review rests in the sound discretion of the district court. The court should make that decision in light of the facts and circumstances of the particular case, including, among other things, the volume of materials the district court has been asked to review, the relevant importance to the case of the alleged privileged information and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply. The district court is also free to defer its in camera review if it concludes that additional evidence in support of the crime-fraud exception may be available that is not allegedly privileged, and that production of the additional evidence will not unduly disrupt or delay the proceedings. Page 491 U. S. 573CThe question remains as to what kind of evidence a district court may consider in determining whether it has the discretion to undertake an in camera review of an allegedly privileged communication at the behest of the party opposing the privilege. Here, the issue is whether the partial transcripts may be used by the IRS in support of its request for in camera review of the tapes.The answer to that question, in the first instance, must be found in Rule 104(a), which establishes that materials that have been determined to be privileged may not be considered in making the preliminary determination of the existence of a privilege. Neither the District Court nor the Court of Appeals made factual findings as to the privileged nature of the partial transcripts, [Footnote 11] so we cannot determine on this record whether Rule 104(a) would bar their consideration.Assuming for the moment, however, that no rule of privilege bars the IRS' use of the partial transcripts, we fail to see what purpose would be served by excluding the transcripts from the District Court's consideration. There can be little doubt that partial transcripts, or other evidence directly but incompletely reflecting the content of the contested communications, generally will be strong evidence of the subject matter of the communications themselves. Permitting district courts to consider this type of evidence would aid them substantially in rapidly and reliably determining whether in camera review is appropriate. Page 491 U. S. 574Respondents suggest only one serious countervailing consideration. In their view, a rule that would allow an opponent of the privilege to rely on such material would encourage litigants to elicit confidential information from disaffected employees or others who have access to the information. Tr. of Oral Arg. 40-41. We think that deterring the aggressive pursuit of relevant information from third-party sources is not sufficiently central to the policies of the attorney-client privilege to require us to adopt the exclusionary rule urged by respondents. We conclude that the party opposing the privilege may use any nonprivileged evidence in support of its request for in camera review even if its evidence is not "independent" of the contested communications as the Court of Appeals uses that term. [Footnote 12]DIn sum, we conclude that a rigid independent evidence requirement does not comport with "reason and experience," Fed.Rule Evid. 501, and we decline to adopt it as part of the developing federal common law of evidentiary privileges. We hold that in camera review may be used to determine whether allegedly privileged attorney-client communications fall within the crime-fraud exception. We further hold, however, that before a district court may engage in in camera review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability. Finally, we hold that the threshold showing to obtain in camera review may be met by using any relevant evidence, lawfully obtained, that has not been adjudicated to be privileged.Because the Court of Appeals employed a rigid independent evidence requirement which categorically excluded the partial transcripts and the tapes themselves from consideration, we vacate its judgment on this issue and remand the case for further proceedings consistent with this opinion. On remand, the Court of Appeals should consider whether the District Court's refusal to listen to the tapes in toto was justified by the manner in which the IRS presented and preserved its request for in camera review. [Footnote 13] In the event the Court of Appeals holds that the IRS' demand for review was properly preserved, the Court of Appeals should then determine, or remand the case to the District Court to determine in the first instance, whether the IRS has presented a sufficient evidentiary basis for in camera review, and whether, if so, it is appropriate for the District Court, in its discretion, to grant such review.It is so ordered

U.S. Supreme CourtUnited States v. Zolin, 491 U.S. 554 (1989)United States v. ZolinNo. 88-40Argued March 20, 1989Decided June 21, 1989491 U.S. 554SyllabusThe Internal Revenue Service (IRS), as part of its investigation of the tax returns of L. Ron Hubbard, founder of the Church of Scientology (the Church), filed in the Federal District Court a petition to enforce a summons it had served upon the Clerk of the Los Angeles County Superior Court demanding that he produce documents, including two tapes, in his possession in conjunction with a pending suit. The Church and Mary Sue Hubbard, intervenors in the state court action and respondents here, intervened to oppose production of the materials. They claimed, inter alia, that the IRS was not seeking the materials in good faith, and that the attorney-client privilege barred the tapes' disclosure. The IRS argued, among other things, that the tapes fell within the exception to the attorney-client privilege for communications in furtherance of future illegal conduct -- the so-called "crime-fraud" exception -- and urged the District Court to listen to the tapes in making its privilege determination. In addition, the IRS submitted a declaration by a special agent which had included partial tape transcripts the IRS lawfully had obtained. The court rejected respondents' bad-faith claim and ordered production of five of the requested documents, but it conditioned its enforcement order by placing restrictions upon IRS dissemination of the documents. The court also ruled that the tapes need not be produced, since they contained privileged attorney-client communications to which, the quoted excerpts revealed, the crime-fraud exception did not apply. The court rejected the request that it listen to the tapes, on the ground that that request had been abandoned in favor of using the agent's declaration as the basis for determining the privilege question. The Court of Appeals affirmed the conditional enforcement order. As to the privilege issue, it agreed with respondents that the District Court would have been without power to grant the IRS' demand for in camera review of the tapes because the Government's evidence of crime or fraud must come from sources independent of the attorney-client communications on the tapes. Reviewing the independent evidence (a review that excluded the partial transcripts), the court affirmed the District Court's determination as to the inapplicability of the crime-fraud exception. Page 491 U. S. 555Held:1. Insofar as it upheld the District Court's conditional enforcement order, the Court of Appeals' judgment is affirmed by an equally divided Court. P. 491 U. S. 561.2. In appropriate circumstances, in camera review of allegedly privileged attorney-client communications may be used to determine whether the communications fall within the crime-fraud exception. Pp. 491 U. S. 562-575.(a) Federal Rule of Evidence 104(a), which provides that a court is bound by the rules of evidence with respect to privileges when determining the existence of a privilege, does not prohibit the use of in camera review. Pp. 491 U. S. 565-570.(b) However, before a district court may engage in in camera review at the request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that such review may reveal evidence that establishes the exception's applicability. Once this threshold showing is made, the decision whether to engage in in camera review rests in the sound discretion of the court. Pp. 491 U. S. 570-572.(c) The party opposing the privilege may use any relevant nonprivileged evidence, lawfully obtained, to meet the threshold showing, even if its evidence is not "independent" of the contested communications as the Court of Appeals uses that term. Pp. 491 U. S. 573-574.(d) On remand, the Court of Appeals should consider whether the District Court's refusal to listen to the tapes in toto was justified by the manner in which the IRS presented and preserved its in camera review request. If its demand was properly preserved, that court, or the District Court on remand, should determine whether the IRS has presented a sufficient evidentiary basis for in camera review and whether it is appropriate for the District Court, in its discretion, to grant the request. Pp. 491 U. S. 574-575.809 F.2d 1411, 842 F.2d 1135, and 850 F.2d 610, affirmed in part, vacated in part, and remanded.BLACKMUN, J., delivered the opinion of the Court, in which all other Members joined, except BRENNAN, J., who took no part in the consideration or decision of the case. Page 491 U. S. 556

1995_94-7448

sufficient to support a conviction for "use" of a firearm during and in relation to a drug trafficking offense under 18 U. s. C. § 924(c)(1).IIn May 1989, petitioner Roland Bailey was stopped by police officers after they noticed that his car lacked a front license plate and an inspection sticker. When Bailey failed to produce a driver's license, the officers ordered him out of the car. As he stepped out, the officers saw Bailey push something between the seat and the front console. A search of the passenger compartment revealed one round of ammunition and 27 plastic bags containing a total of 30 grams of cocaine. After arresting Bailey, the officers searched the trunk of his car where they found, among a number of items, a large amount of cash and a bag containing a loaded 9-mm. pistol.Bailey was charged on several counts, including using and carrying a firearm in violation of 18 U. s. C. § 924(c)(1). A prosecution expert testified at trial that drug dealers frequently carry a firearm to protect their drugs and money as well as themselves. Bailey was convicted by the jury on all charges, and his sentence included a consecutive 60-month term of imprisonment on the § 924(c)(1) conviction.The Court of Appeals for the District of Columbia Circuit rejected Bailey's claim that the evidence was insufficient to support his conviction under § 924(c)(1). United States v. Bailey, 995 F.2d 1113 (CADC 1993). The court held that Bailey could be convicted for "using" a firearm during and in relation to a drug trafficking crime if the jury could reasonably infer that the gun facilitated Bailey's commission of a drug offense. Id., at 1119. In Bailey's case, the court explained, the trier of fact could reasonably infer that Bailey had used the gun in the trunk to protect his drugs and drug proceeds and to facilitate sales. Judge Douglas H. Ginsburg, dissenting in part, argued that prior Circuit precedent required reversal of Bailey's conviction.140In June 1991, an undercover officer made a controlled buy of crack cocaine from petitioner Candisha Robinson. The officer observed Robinson retrieve the drugs from the bedroom of her one-bedroom apartment. After a second controlled buy, the police executed a search warrant of the apartment. Inside a locked trunk in the bedroom closet, the police found, among other things, an unloaded, holstered .22-caliber Derringer, papers and a tax return belonging to Robinson, 10.88 grams of crack cocaine, and a marked $20 bill from the first controlled buy.Robinson was indicted on a number of counts, including using or carrying a firearm in violation of § 924(c)(1). A prosecution expert testified that the Derringer was a "second gun," i. e., a type of gun a drug dealer might hide on his or her person for use until reaching a "real gun." The expert also testified that drug dealers generally use guns to protect themselves from other dealers, the police, and their own employees. Robinson was convicted on all counts, including the § 924(c)(1) count, for which she received a 60month term of imprisonment. The District Court denied Robinson's motion for a judgment of acquittal with respect to the "using or carrying" conviction and ruled that the evidence was sufficient to establish a violation of § 924(c)(1).A divided panel of the Court of Appeals reversed Robinson's conviction on the § 924(c)(1) count. United States v. Robinson, 997 F.2d 884 (CADC 1993). The court determined, "[g]iven the way section 924(c)(1) is drafted, even if an individual intends to use a firearm in connection with a drug trafficking offense, the conduct of that individual is not reached by the statute unless the individual actually uses the firearm for that purpose." Id., at 887. The court held that Robinson's possession of an unloaded .22-caliber Derringer in a locked trunk in a bedroom closet fell significantly short of the type of evidence the court had previously held necessary to establish actual use under § 924(c)(1). The mere proximity of the gun to the drugs was held insufficient to141support the conviction. Judge Henderson dissented, arguing, among other things, that the firearm facilitated Robinson's distribution of drugs because it protected Robinson and the drugs during sales.In order to resolve the apparent inconsistencies in its decisions applying § 924(c)(1), the Court of Appeals for the District of Columbia Circuit consolidated the two cases and reheard them en banco In a divided opinion, a majority of the court held that the evidence was sufficient to establish that each defendant had used a firearm in relation to a drug trafficking offense and affirmed the § 924(c)(1) conviction in each case. 36 F.3d 106 (CADC 1994) (en banc).The majority rejected a multifactor weighing approach to determine sufficiency of the evidence to support a § 924(c)(1) conviction. The District of Columbia Circuit had previously applied a nonexclusive set of factors, including: accessibility of the gun, its proximity to drugs, whether or not it was loaded, what type of weapon was involved, and whether expert testimony supported the Government's theory of "use." The majority explained that this approach invited the reviewing court to reweigh the evidence and make its own finding with respect to an ultimate fact, a function properly left to the jury; had produced widely divergent and contradictory results; and was out of step with the broader definition of "use" employed by other Circuits.The court replaced the multifactor test with an "accessibility and proximity" test. "[WJe hold that one uses a gun, i. e., avails oneself of a gun, and therefore violates [§ 924(c)(1)], whenever one puts or keeps the gun in a particular place from which one (or one's agent) can gain access to it if and when needed to facilitate a drug crime." Id., at 115. The court applied this new standard and affirmed the convictions of both Bailey and Robinson. In both cases, the court determined that the gun was sufficiently accessible and proximate to the drugs or drug proceeds that the jury could properly infer that the defendant had placed the gun in order to fur-142ther the drug offenses or to protect the possession of the drugs.Judge Wald, in dissent, argued that the court's previous multifactor test provided a better standard for appellate review of § 924(c)(1) convictions. Judge Williams, joined by Judges Silberman and Buckley, also dissented. He explained his understanding that "use" under § 924(c)(1) denoted active employment of the firearm "rather than possession with a contingent intent to use." Id., at 121. "[B]y articulating a 'proximity' plus 'accessibility' test, however, the court has in effect diluted 'use' to mean simply possession with a floating intent to use." Ibid.As the debate within the District of Columbia Circuit illustrates, § 924(c)(1) has been the source of much perplexity in the courts. The Circuits are in conflict both in the standards they have articulated, compare United States v. TorresRodriguez, 930 F.2d 1375, 1385 (CA9 1991) (mere possession sufficient to satisfy § 924(c)), with United States v. CastroLara, 970 F.2d 976, 983 (CA1 1992) (mere possession insufficient), cert. denied sub nom. Sarraff v. United States, 508 U. S. 962 (1993); and in the results they have reached, compare United States v. Feliz-Cordero, 859 F.2d 250, 254 (CA2 1988) (presence of gun in dresser drawer in apartment with drugs, drug proceeds, and paraphernalia insufficient to meet § 924(c)(1)), with United States v. McFadden, 13 F.3d 463, 465 (CAl1994) (evidence of gun hidden under mattress with money, near drugs, was sufficient to show "use"), and United States v. Hager, 969 F.2d 883, 889 (CAlO) (gun in boots in living room near drugs was "used"), cert. denied, 506 U. S. 964 (1992). We granted certiorari to clarify the meaning of "use" under § 924(c)(1). 514 U. S. 1062 (1995).IISection 924(c)(1) requires the imposition of specified penalties if the defendant, "during and in relation to any crime of violence or drug trafficking crime ... , uses or carries a143firearm." Petitioners argue that "use" signifies active employment of a firearm. The Government opposes that definition and defends the proximity and accessibility test adopted by the Court of Appeals. We agree with petitioners, and hold that § 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.This action is not the first one in which the Court has grappled with the proper understanding of "use" in § 924(c)(1). In Smith, we faced the question whether the barter of a gun for drugs was a "use," and concluded that it was. Smith v. United States, 508 U. S. 223 (1993). As the debate in Smith illustrated, the word "use" poses some interpretational difficulties because of the different meanings attributable to it. Consider the paradoxical statement: "I use a gun to protect my house, but I've never had to use it." "U se" draws meaning from its context, and we will look not only to the word itself, but also to the statute and the sentencing scheme, to determine the meaning Congress intended.We agree with the majority below that "use" must connote more than mere possession of a firearm by a person who commits a drug offense. See 36 F. 3d, at 109; accord, United States v. Castro-Lara, supra, at 983; United States v. Theodoropoulos, 866 F.2d 587, 597-598 (CA3 1989); United States v. Wilson, 884 F.2d 174, 177 (CA5 1989). Had Congress intended possession alone to trigger liability under § 924(c)(1), it easily could have so provided. This obvious conclusion is supported by the frequent use of the term "possess" in the gun-crime statutes to describe prohibited gunrelated conduct. See, e. g., §§ 922(g), 922(j), 922(k), 922(0)(1), 930(a), 930(b).Where the Court of Appeals erred was not in its conclusion that "use" means more than mere possession, but in its standard for evaluating whether the involvement of a firearm amounted to something more than mere possession. Its144proximity and accessibility standard provides almost no limitation on the kind of possession that would be criminalized; in practice, nearly every possession of a firearm by a person engaged in drug trafficking would satisfy the standard, "thereby eras[ing] the line that the statutes, and the courts, have tried to draw." United States v. McFadden, supra, at 469 (Breyer, C. J., dissenting). Rather than requiring actual use, the District of Columbia Circuit would criminalize "simpl[e] possession with a floating intent to use." 36 F. 3d, at 121 (Williams, J., dissenting). The shortcomings of this test are succinctly explained in Judge Williams' dissent:"While the majority attempts to fine-tune the concept of facilitation (and thereby, use) through its twin guideposts of proximity and accessibility, the ultimate result is that possession amounts to 'use' because possession enhances the defendant's confidence. Had Congress intended that, all it need have mentioned is possession. In this regard, the majority's test is either so broad as to assure automatic affirmance of any jury conviction or, if not so broad, is unlikely to produce a clear guideline." Id., at 124-125 (citations omitted).An evidentiary standard for finding "use" that is satisfied in almost every case by evidence of mere possession does not adhere to the obvious congressional intent to require more than possession to trigger the statute's application.This conclusion-that a conviction for "use" of a firearm under § 924(c)(1) requires more than a showing of mere possession-requires us to answer a more difficult question. What must the Government show, beyond mere possession, to establish "use" for the purposes of the statute? We conclude that the language, context, and history of § 924(c)(1) indicate that the Government must show active employment of the firearm.We start, as we must, with the language of the statute.See United States v. Ron Pair Enterprises, Inc., 489 U. S.145235, 241 (1989). The word "use" in the statute must be given its "ordinary or natural" meaning, a meaning variously defined as "[t]o convert to one's service," "to employ," "to avail oneself of," and "to carry out a purpose or action by means of." Smith, supra, at 228-229 (internal quotation marks omitted) (citing Webster's New International Dictionary of English Language 2806 (2d ed. 1949) and Black's Law Dictionary 1541 (6th ed. 1990)). These various definitions of "use" imply action and implementation. See also McFadden, 13 F. 3d, at 467 (Breyer, C. J., dissenting) ("[T]he ordinary meanings of the words 'use and 'carry' ... connote activity beyond simple possession").We consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme. " '[T]he meaning of statutory language, plain or not, depends on context.'" Brown v. Gardner, 513 U. S. 115, 118 (1994) (citing King v. St. Vincent's Hospital, 502 U. S. 215, 221 (1991)). Looking past the word "use" itself, we read § 924(c)(1) with the assumption that Congress intended each of its terms to have meaning. "Judges should hesitate ... to treat [as surplusage] statutory terms in any setting, and resistance should be heightened when the words describe an element of a criminal offense." Ratzlaf v. United States, 510 U. S. 135, 140-141 (1994). Here, Congress has specified two types of conduct with a firearm: "uses" or "carries."Under the Government's reading of § 924(c)(1), "use" includes even the action of a defendant who puts a gun into place to protect drugs or to embolden himself. This reading is of such breadth that no role remains for "carry." The Government admits that the meanings of "use" and "carry" converge under its interpretation, but maintains that this overlap is a product of the particular history of § 924(c)(1). Therefore, the Government argues, the canon of construction that instructs that "a legislature is presumed to have used no superfluous words," Platt v. Union Pacific R. Co., 99 U. S. 48, 58 (1879), is inapplicable. Brief for United States 24-25.146We disagree. Nothing here indicates that Congress, when it provided these two terms, intended that they be understood to be redundant.We assume that Congress used two terms because it intended each term to have a particular, nonsuperfiuous meaning. While a broad reading of "use" undermines virtually any function for "carry," a more limited, active interpretation of "use" preserves a meaningful role for "carries" as an alternative basis for a charge. Under the interpretation we enunciate today, a firearm can be used without being carried, e. g., when an offender has a gun on display during a transaction, or barters with a firearm without handling it; and a firearm can be carried without being used, e. g., when an offender keeps a gun hidden in his clothing throughout a drug transaction.This reading receives further support from the context of § 924(c)(1). As we observed in Smith, "using a firearm" should not have a "different meaning in § 924(c)(1) than it does in § 924(d)." 508 U. S., at 235. See also United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988) ("A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme"). Section 924(d)(1) provides for the forfeiture of any firearm that is "used" or "intended to be used" in certain crimes. In that provision, Congress recognized a distinction between firearms "used" in commission of a crime and those "intended to be used," and provided for forfeiture of a weapon even before it had been "used." In § 924(c)(1), however, liability attaches only to cases of actual use, not intended use, as when an offender places a firearm with the intent to use it later if necessary. The difference between the two provisions demonstrates that, had Congress meant to broaden application of the statute beyond actual "use," Congress could and would have so specified, as it did in § 924(d)(1).147The amendment history of § 924(c) casts further light on Congress' intended meaning. The original version, passed in 1968, read:"(c) Whoever-"(1) uses a firearm to commit any felony which may be prosecuted in a court of the United States, or"(2) carries a firearm unlawfully during the commission of any felony which may be prosecuted in a court of the United States,"shall be sentenced to a term of imprisonment for not less than one year nor more than 10 years." § 102, 82 Stat. 1224.The phrase "uses a firearm to commit" indicates that Congress originally intended to reach the situation where the firearm was actively employed during commission of the crime. This original language would not have stretched so far as to cover a firearm that played no detectable role in the crime's commission. For example, a defendant who stored a gun in a nearby closet for retrieval in case the deal went sour would not have "use[d] a firearm to commit" a crime. This version also shows that "use" and "carry" were employed with distinctly different meanings.Congress' 1984 amendment to § 924(c) altered the scope of predicate offenses from "any felony" to "any crime of violence," removed the "unlawfully" requirement, merged the "uses" and "carries" prongs, substituted "during and in relation to" the predicate crimes for the earlier provisions linking the firearm to the predicate crimes, and raised the minimum sentence to five years. § 1005(a), 98 Stat. 2138-2139. The Government argues that this amendment stripped "uses" and "carries" of the qualifications ("to commit" and "unlawfully during") that originally gave them distinct meanings, so that the terms should now be understood to overlap. Of course, in Smith we recognized that Con-148gress' subsequent amendments to § 924(c) employed "use" expansively, to cover both use as a weapon and use as an item of barter. See Smith, 508 U. S., at 236. But there is no evidence to indicate that Congress intended to expand the meaning of "use" so far as to swallow up any significance for "carry." If Congress had intended to deprive "use" of its active connotations, it could have simply substituted a more appropriate term-"possession"-to cover the conduct it wished to reach.The Government nonetheless argues that our observation in Smith that "§ 924(c)(1)'s language sweeps broadly," 508 U. S., at 229, precludes limiting "use" to active employment. But our decision today is not inconsistent with Smith. Although there we declined to limit "use" to the meaning "use as a weapon," our interpretation of § 924(c)(1) nonetheless adhered to an active meaning of the term. In Smith, it was clear that the defendant had "used" the gun; the question was whether that particular use (bartering) came within the meaning of § 924(c)(1). Smith did not address the question we face today of what evidence is required to permit a jury to find that a firearm had been used at all.To illustrate the activities that fall within the definition of "use" provided here, we briefly describe some of the activities that fall within "active employment" of a firearm, and those that do not.The active-employment understanding of "use" certainly includes brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm. We note that this reading compels the conclusion that even an offender's reference to a firearm in his possession could satisfy § 924(c)(1). Thus, a reference to a firearm calculated to bring about a change in the circumstances of the predicate offense is a "use," just as the silent but obvious and forceful presence of a gun on a table can be a "use."The example given above-"I use a gun to protect my house, but I've never had to use it" -shows that "use" takes149on different meanings depending on context. In the first phrase of the example, "use" refers to an ongoing, inactive function fulfilled by a firearm. It is this sense of "use" that underlies the Government's contention that "placement for protection"-i. e., placement of a firearm to provide a sense of security or to embolden-constitutes a "use." It follows, according to this argument, that a gun placed in a closet is "used," because its mere presence emboldens or protects its owner. We disagree. Under this reading, mere possession of a firearm by a drug offender, at or near the site of a drug crime or its proceeds or paraphernalia, is a "use" by the offender, because its availability for intimidation, attack, or defense would always, presumably, embolden or comfort the offender. But the inert presence of a firearm, without more, is not enough to trigger § 924(c)(1). Perhaps the nonactive nature of this asserted "use" is clearer if a synonym is used: storage. A defendant cannot be charged under § 924(c)(1) merely for storing a weapon near drugs or drug proceeds. Storage of a firearm, without its more active employment, is not reasonably distinguishable from possession.A possibly more difficult question arises where an offender conceals a gun nearby to be at the ready for an imminent confrontation. Cf. 36 F. 3d, at 119 (Wald, J., dissenting) (discussing distinction between firearm's accessibility to drugs or drug proceeds and its accessibility to defendant). Some might argue that the offender has "actively employed" the gun by hiding it where he can grab and use it if necessary. In our view, "use" cannot extend to encompass this action. If the gun is not disclosed or mentioned by the offender, it is not actively employed, and it is not "used." To conclude otherwise would distort the language of the statute as well as create an impossible line-drawing problem. How "at the ready" was the firearm? Within arm's reach? In the room? In the house? How long before the confrontation did he place it there? Five minutes or 24 hours? Placement for later active use does not constitute "use." An alternative150rationale for why "placement at the ready" is a "use"that such placement is made with the intent to put the firearm to a future active use-also fails. As discussed above, § 924(d)(1) demonstrates that Congress knew how to draft a statute to reach a firearm that was "intended to be used." In § 924(c)(1), it chose not to include that term, but instead established the 5-year mandatory minimum only for those defendants who actually "use" the firearm.While it is undeniable that the active-employment reading of "use" restricts the scope of § 924(c)(1), the Government often has other means available to charge offenders who mix guns and drugs. The "carry" prong of § 924(c)(1), for example, brings some offenders who would not satisfy the "use" prong within the reach of the statute. And Sentencing Guidelines § 2D1.1(b)(1) provides an enhancement for a person convicted of certain drug-trafficking offenses if a firearm was possessed during the offense. United States Sentencing Commission, Guidelines Manual § 2D1.1(b)(1) (Nov. 1994). But the word "use" in § 924(c)(1) cannot support the extended applications that prosecutors have sometimes placed on it, in order to penalize drug-trafficking offenders for firearms possession.The test set forth by the Court of Appeals renders "use" virtually synonymous with "possession" and makes any role for "carry" superfluous. The language of § 924(c)(1), supported by its history and context, compels the conclusion that Congress intended "use" in the active sense of "to avail oneself of." To sustain a conviction under the "use" prong of § 924(c)(1), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime.IIIHaving determined that "use" denotes active employment, we must conclude that the evidence was insufficient to support either Bailey's or Robinson's conviction for "use" under § 924(c)(1).151The police stopped Bailey for a traffic offense and arrested him after finding cocaine in the driver's compartment of his car. The police then found a firearm inside a bag in the locked car trunk. There was no evidence that Bailey actively employed the firearm in any way. In Robinson's case, the unloaded, holstered firearm that provided the basis for her § 924(c)(1) conviction was found locked in a footlocker in a bedroom closet. No evidence showed that Robinson had actively employed the firearm. We reverse both judgments.Bailey and Robinson were each charged under both the "use" and "carry" prongs of § 924(c)(1). Because the Court of Appeals did not consider liability under the "carry" prong of § 924(c)(1) for Bailey or Robinson, we remand for consideration of that basis for upholding the convictions.It is so ordered

OCTOBER TERM, 1995SyllabusBAILEY v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUITNo. 94-7448. Argued October 30, 1995-Decided December 6,1995*Petitioners Bailey and Robinson were each convicted of federal drug offenses and of violating 18 U. S. C. § 924(c)(I), which, in relevant part, imposes a prison term upon a person who "during and in relation to any ... drug trafficking crime ... uses or carries a firearm." Bailey's § 924(c)(I) conviction was based on a loaded pistol that the police found inside a bag in his locked car trunk after they arrested him for possession of cocaine revealed by a search of the car's passenger compartment. The unloaded, holstered firearm that provided the basis for Robinson's § 924(c)(I) conviction was found locked in a trunk in her bedroom closet after she was arrested for a number of drug-related offenses. There was no evidence in either case that the defendant actively employed the firearm in any way. In consolidating the cases and affirming the convictions, the Court of Appeals sitting en banc applied an "accessibility and proximity" test to determine "use" within § 924(c)(I)'s meaning, holding, in both cases, that the gun was sufficiently accessible and proximate to the drugs or drug proceeds that the jury could properly infer that the defendant had placed the gun in order to further the drug offenses or to protect the possession of the drugs.Held:1. Section 924(c)(I) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense. Evidence of the proximity and accessibility of the firearm to drugs or drug proceeds is not alone sufficient to support a conviction for "use" under the statute. Pp. 142-151.(a) Although the Court of Appeals correctly ruled that "use" must connote more than mere possession of a firearm by a person who commits a drug offense, the court's accessibility and proximity standard renders "use" virtually synonymous with "possession" and makes any role for the statutory word "carries" superfluous. Section 924(c)(I)'s language instead indicates that Congress intended "use" in the active sense of "to avail oneself of." Smith v. United States, 508 U. S. 223,228-229. This reading receives further support from § 924(c)(I)'s context within*Together with No. 94-7492, Robinson v. United States, also on certiorari to the same court.138the statutory scheme, and neither the section's amendment history nor Smith, supra, at 236, is to the contrary. Thus, to sustain a conviction under the "use" prong of § 924(c)(I), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime. Under this reading, "use" includes the acts of brandishing, displaying, bartering, striking with, and firing or attempting to fire a firearm, as well as the making of a reference to a firearm in a defendant's possession. It does not include mere placement of a firearm for protection at or near the site of a drug crime or its proceeds or paraphernalia, nor the nearby concealment of a gun to be at the ready for an imminent confrontation. Pp. 142-150.(b) The evidence was insufficient to support either Bailey's or Robinson's § 924(c)(I) conviction for "use" under the active-employment reading of that word. Pp. 150-151.2. However, because the Court of Appeals did not consider liability under the "carry" prong of § 924(c)(I) as a basis for upholding these convictions, the cases must be remanded. P. 151.36 F.3d 106, reversed and remanded.O'CONNOR, J., delivered the opinion for a unanimous Court.Alan E. Untereiner argued the cause for petitioners in both cases. With him on the briefs were David B. Smith and Roy T. Englert, Jr.Deputy Solicitor General Dreeben argued the cause for the United States in both cases. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, James A. Feldman, and John F. De Pue.tJUSTICE O'CONNOR delivered the opinion of the Court. These consolidated petitions each challenge a conviction under 18 U. S. C. § 924(c)(1). In relevant part, that section imposes a 5-year minimum term of imprisonment upon a person who "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm." We are asked to decide whether evidence of the proximity and accessibility of a firearm to drugs or drug proceeds is alonetEdward H. Sisson and Daniel A. Rezneck filed a brief for James Doe as amicus curiae urging reversal.139Full Text of Opinion

1960_37

MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner was convicted for having unlawfully refused to answer a question pertinent to a matter under inquiry before a subcommittee of the House Committee on Un-American Activities at a hearing in Atlanta, Page 365 U. S. 401 Georgia, on July 30, 1958. [Footnote 1] His conviction was affirmed by the Court of Appeals, which held that our decision in Barenblatt v. United States, 360 U. S. 109, was "controlling." 272 F.2d 783. We granted certiorari, 362 U.S. 926, to consider the petitioner's claim that the Court of Appeals had misconceived the meaning of the Barenblatt decision. For the reasons that follow, we are of the view that the Court of Appeals was correct, and that its judgment must be affirmed.IThe following circumstances were established by uncontroverted evidence at the petitioner's trial:The Committee on Un-American Activities is a standing committee of the House of Representatives, elected at the commencement of each Congress. [Footnote 2] The Committee, or any subcommittee thereof, is authorized to investigate"(i) the extent, character, and objects of un-American propaganda activities in the United States, (ii) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (iii) all other questions in relation Page 365 U. S. 402 thereto that would aid Congress in any necessary remedial legislation. [Footnote 3]"In the spring of 1958, the Committee passed a resolution providing for a subcommittee hearing to be held in Atlanta, Georgia,"relating to the following subjects and having the legislative purposes indicated:""1. The extent, character and objects of Communist colonization and infiltration in the textile and other basic industries located in the South, and Communist Party propaganda activities in the South, the legislative purpose being:""(a) To obtain additional information for use by the Committee in its consideration of Section 16 of H.R. 9352, relating to the proposed amendment of Section 4 of the Communist Control Act of 1954, prescribing a penalty for knowingly and wilfully becoming or remaining a member of the Communist Party with knowledge of the purposes or objectives thereof; and""(b) To obtain additional information, adding to the Committee's overall knowledge on the subject so that Congress may be kept informed and thus prepared to enact remedial legislation in the National Defense, and for internal security, when and if the exigencies of the situation require it.""2. Entry and dissemination within the United States of foreign Communist Party propaganda, the legislative purpose being to determine the necessity for, and advisability of, amendments to the Foreign Agents Registration Act designed more effectively to counteract the Communist schemes and devices now used in avoiding the prohibitions of the Act. "Page 365 U. S. 403"3. Any other matter within the jurisdiction of the Committee which it, or any subcommittee thereof, appointed to conduct this hearing, may designate."The subcommittee which was appointed pursuant to this resolution convened in Atlanta on July 29, 1958. At the opening of the proceedings on that day, the Chairman of the Committee orally summarized the purposes of the hearings. The petitioner was present, and heard the Chairman's statement.The first witness to appear was Amendo Penha, who testified that he had been a member of the Communist Party from 1950 to 1958, having joined the Party at the request of the Federal Bureau of Investigation. He stated that he had served as a member of the National Textile Commission of the Party, which, he said, was set up to control and supervise the infiltration and colonization of the textile industry, particularly in the South. He described the "colonizer" system, which, he said, involves sending hard-core Party members into plants in jobs where they have close contact with rank-and-file workers. Penha described in some detail his trips throughout the South in compliance with the instructions of the National Textile Commission, and identified a number of individuals as "colonizers." Another witness, a Deputy Collector of Customs, described the influx of Communist propaganda sent from abroad into the United States, and particularly into the South. Several other witnesses were then interrogated, some as to their activities as alleged Communist colonizers, others as to their connection with certain allegedly Communist-controlled publications. A number of these witnesses declined to answer most of the questions put to them.On the following day, the first witness before the subcommittee was Carl Braden. Although interrogated at length, he declined to answer questions relating to alleged Page 365 U. S. 404 Communist activity. [Footnote 4] The next witness was the petitioner. After being sworn and stating his name, he declined to give his residence address, stating that, "As a matter of conscience and personal responsibility, I refuse to answer any questions of this committee." When asked his occupation, he made the same response. He was then asked the question which was to become the subject of the present indictment and conviction: "Mr. Wilkinson, are you now a member of the Communist Party?" He declined to answer the question, giving the same response as before.The Committee's Staff Director then addressed the petitioner at length, in explanation "of the reasons, the pertinency, and the relevancy of that question and certain other questions which I propose to propound to you." [Footnote 5] Page 365 U. S. 405In response, the petitioner stated "I am refusing to answer any questions of this committee." He was then directed by the Subcommittee Chairman to answer the question as to his Communist Party membership. This time he responded as follows:"I challenge, in the most fundamental sense, the legality of the House Committee on Un-American Page 365 U. S. 406 Activities. It is my opinion that this committee stands in direct violation, by its mandate and by its practices, of the First Amendment to the United States Constitution. It is my belief that Congress had no authority to establish this committee in the first instance, nor to instruct it with the mandate which it has.""I have the utmost respect for the broad powers which the Congress of the United States must have to carry on its investigations for legislative purposes. However, the United States Supreme Court has held that, broad as these powers may be, the Congress cannot investigate into an area where it cannot legislate, and this committee tends, by its mandate and by its practices, to investigate into precisely those areas of free speech, religion, peaceful association and assembly, and the press wherein it cannot legislate, and therefore it cannot investigate."The hearing continued. The Staff Director read part of the record of an earlier hearing in California where a witness had testified to knowing the petitioner as a Communist. The petitioner was then asked whether this testimony was true. He refused to answer this and several further questions addressed to him. There was introduced into the record a reproduction of the petitioner's Page 365 U. S. 407 registration at an Atlanta hotel a week earlier, in which he had indicated that his business firm association was the "Emergency Civil Liberties Committee."The subsequent indictment and conviction of the petitioner were based upon his refusal, in the foregoing context, to answer the single question "Are you now a member of the Communist Party?"IIThe judgment affirming the petitioner's conviction is attacked here from several different directions. It is contended that the subcommittee was without authority to interrogate him because its purpose in doing so was to investigate public opposition to the Committee itself and to harass and expose him. It is argued that the petitioner was wrongly convicted because the question which he refused to answer was not pertinent to a question under inquiry by the subcommittee, so that a basic element of the statutory offense was lacking. It is said that, in any event, the pertinency of the question was not made clear to the petitioner at the time he was directed to answer it, so that he was denied due process. Finally, it is urged that the action of the subcommittee in subpoenaing and questioning him violated his rights under the First Amendment to the Constitution.In considering these contentions, the starting point must be to determine the subject matter of the subcommittee's inquiry. House Rule XI, which confers investigative authority upon the Committee and its subcommittees, is quoted above. Because of the breadth and generality of its language, Rule XI cannot be said to state with adequate precision the subject under inquiry by a subcommittee at any given hearing. This the Court had occasion to point out in Watkins v. United States, 354 U. S. 178. See also Barenblatt v. United States, 360 U. S. 109, 360 U. S. 116-117. But, as the Watkins opinion recognized, Rule XI Page 365 U. S. 408 is only one of several possible points of reference. The Court in that case said that"[t]he authorizing resolution, the remarks of the chairman or members of the committee, or even the nature of the proceedings themselves"might reveal the subject under inquiry. 354 U.S. at 354 U. S. 209. Here, as in Barenblatt, other sources do supply the requisite concreteness.The resolution authorizing the subcommittee hearing in Atlanta was explicit. It clearly set forth three concrete areas of investigation: Communist infiltration into basic industry in the South, Communist Party propaganda in the South, and foreign Communist Party propaganda in the United States. [Footnote 6] The pattern of interrogation of the witnesses who appeared on the first day of the hearing confirms that the subcommittee was pursuing those three subjects of investigation. The Staff Director's statement to the petitioner explicitly referred to the second of the three subjects -- Communist Party propaganda in the South. We think that the record thus clearly establishes that the subcommittee, at the time of the petitioner's interrogation, was pursuing at least two related and specific subjects of investigation: Communist infiltration into basic southern industry, and Communist Party propaganda activities in that area of the country.If these, then, were the two subjects of the subcommittee's inquiry, the questions that must be answered in considering the petitioner's contentions are several. First, was the subcommittee's investigation of these subjects, through interrogation of the petitioner, authorized Page 365 U. S. 409 by Congress? Second, was the subcommittee pursuing a valid legislative purpose? Third, was the question asked the petitioner pertinent to the subject matter of the investigation? Fourth, was he contemporaneously apprised of the pertinency of the question? Fifth, did the subcommittee's interrogation violate his First Amendment rights of free association and free speech?The question of basic congressional authorization was clearly decided in Barenblatt v. United States, supra. There, we said, after reviewing the genesis and subsequent history of Rule XI, that"[I]t can hardly be seriously argued that the investigation of Communist activities generally, and the attendant use of compulsory process, was beyond the purview of the Committee's intended authority under Rule XI."360 U.S. at 360 U. S. 120-121. The subjects under inquiry here surely fall within "the investigation of Communist activities generally."The petitioner argues, however, that the subcommittee was inspired to interrogate him by reason of his opposition to the existence of the Un-American Activities Committee itself, and that its purpose was unauthorized harassment and exposure. He points to the Chairman's opening statement, which mentioned activity against the Committee, to the fact that he was subpoenaed to appear before the subcommittee soon after he arrived in Atlanta to stir up opposition to the Committee's activities, and to the statement of the Staff Director indicating the subcommittee's awareness of his efforts to develop a "hostile sentiment" to the Committee and to "bring pressure upon the United States Congress to preclude these particular hearings."But, just as, in Barenblatt, supra, we could find nothing in Rule XI to exclude the field of education from the Committee's compulsory authority, we can find nothing to indicate that it was the intent of Congress to immunize Page 365 U. S. 410 from interrogation all those (and there are many) who are opposed to the existence of the Un-American Activities Committee.Nor can we say on this record that the subcommittee was not pursuing a valid legislative purpose. The Committee resolution authorizing the Atlanta hearing, quoted above, expressly referred to two legislative proposals, an amendment to § 4 of the Communist Control Act of 1954 and amendments to the Foreign Agents Registration Act of 1938. A number of other sources also indicate the presence of a legislative purpose. The Chairman's statement at the opening of the hearings contained a lengthy discussion of legislation. [Footnote 7] The Staff Director's statement to the petitioner also discussed legislation which the Committee had under consideration. [Footnote 8] All these sources indicate the existence of a legislative purpose. And the determination that purposes of the kind referred to are unassailably valid was a cornerstone of our decision in Barenblatt, Page 365 U. S. 411 supra:"That Congress has wide power to legislate in the field of Communist activity in this Country, and to conduct appropriate investigations in aid thereof, is hardly debatable. The existence of such power has never been questioned by this Court, and it is sufficient to say, without particularization, that Congress has enacted or considered in this field a wide range of legislative measures, not a few of which have stemmed from recommendations of the very Committee whose actions have been drawn in question here. In the last analysis, this power rests on the right of self-preservation. . . ."360 U.S. at 360 U. S. 127-128.The petitioner's contention that, while the hearing generally may have been pursuant to a valid legislative purpose, the sole reason for interrogating him was to expose him to public censure because of his activities against the Committee, is not persuasive. It is true that the Staff Director's statement reveals the subcommittee's awareness of the petitioner's opposition to the hearings, and indicates that the petitioner was not summoned to appear until after he had arrived in Atlanta as the representative of a group carrying on a public campaign to abolish the House Committee. These circumstances, however, do not necessarily lead to the conclusion that the subcommittee's intent was personal persecution of the petitioner. As we have noted, a prime purpose of the hearings was to investigate Communist propaganda activities in the South. It therefore was entirely logical for the subcommittee to subpoena the petitioner after he had arrived at the site of the hearings, had registered as a member of a group which the subcommittee believed to be Communist dominated, and had conducted a public campaign against the subcommittee. The fact that the petitioner might not have been summoned to appear had he not come to Atlanta illustrates the very point, for, in that event, he might not have been thought to have been Page 365 U. S. 412 connected with a subject under inquiry -- Communist Party propaganda activities in that area of the country.Moreover, it is not for us to speculate as to the motivations that may have prompted the decision of individual members of the subcommittee to summon the petitioner. As was said in Watkins, supra,"a solution to our problem is not to be found in testing the motives of committee members for this purpose. Such is not our function. Their motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly's legislative purpose is being served."354 U.S. at 354 U. S. 200. See also Barenblatt, supra, 360 U.S. at 360 U. S. 132.It is to be emphasized that the petitioner was not summoned to appear as the result of an indiscriminate dragnet procedure, lacking in probable cause for belief that he possessed information which might be helpful to the subcommittee. As was made clear by the testimony of the Committee's Staff Director at the trial, the subcommittee had reason to believe at the time it summoned the petitioner that he was an active Communist leader engaged primarily in propaganda activities. [Footnote 9] This is borne out Page 365 U. S. 413 by the record of the subcommittee hearings, including the content of the Staff Director's statement to the petitioner and evidence that, at a prior hearing, the petitioner had been identified as a Communist Party member.The petitioner's claim that the question he refused to answer was not pertinent to a subject under inquiry merits no extended discussion. Indeed, it is difficult to imagine a preliminary question more pertinent to the topics under investigation than whether petitioner was, in fact, a member of the Communist Party. As was said in Barenblatt, "petitioner refused to answer questions as to his own Communist Party affiliations, whose pertinency, of course, was clear beyond doubt." 360 U.S. at 360 U. S. 125. The contention that the pertinency of the question was not made clear to the petitioner at the time he was directed to answer it is equally without foundation. After the Staff Director gave a detailed explanation of the question's pertinency, the petitioner said nothing to indicate that he entertained any doubt on this score. [Footnote 10]We come finally to the claim that the subcommittee's interrogation of the petitioner violated his rights under the First Amendment. The basic issues which this contention raises were thoroughly canvassed by us in Barenblatt. Page 365 U. S. 414 Substantially all that was said there is equally applicable here, and it would serve no purpose to enlarge this opinion with a paraphrased repetition of what was in that opinion thoughtfully considered and carefully expressed. See 360 U.S. at 360 U. S. 125-134.It is sought to differentiate this case upon the basis that"the activities in which petitioner was believed to be participating consisted of public criticism of the Committee and attempts to influence public opinion to petition Congress for redress -- to abolish the Committee."But we cannot say that, simply because the petitioner at the moment may have been engaged in lawful conduct, his Communist activities in connection therewith could not be investigated. The subcommittee had reasonable ground to suppose that the petitioner was an active Communist Party member, and that, as such, he possessed information that would substantially aid it in its legislative investigation. As the Barenblatt opinion makes clear, it is the nature of the Communist activity involved, whether the momentary conduct is legitimate or illegitimate politically, that establishes the Government's overbalancing interest."To suggest that, because the Communist Party may also sponsor peaceable political reforms, the constitutional issues before us should now be judged as if that Party were just an ordinary political party from the standpoint of national security is to ask this Court to blind itself to world affairs which have determined the whole course of our national policy since the close of World War II. . . ."360 U.S. at 360 U. S. 128-129.The subcommittee's legitimate legislative interest was not the activity in which the petitioner might have happened at the time to be engaged, but in the manipulation and infiltration of activities and organizations by persons advocating overthrow of the Government."The strict requirements of a prosecution under the Smith Act . . . Page 365 U. S. 415 are not the measure of the permissible scope of a congressional investigation into 'overthrow,' for, of necessity, the investigatory process must proceed step by step."360 U.S. at 360 U. S. 130.We conclude that the First Amendment claims pressed here are indistinguishable from those considered in Barenblatt, and that, upon the reasoning and the authority of that case, they cannot prevail.Affirmed

U.S. Supreme CourtWilkinson v. United States, 365 U.S. 399 (1961)Wilkinson v. United StatesNo. 37Argued November 17, 1960Decided February 27, 1961365 U.S. 399SyllabusSummoned to testify before a Subcommittee of the House of Representatives Committee on Un-American Activities, which was investigating Communist infiltration into basic industries in the South and Communist Party propaganda activities in the South, petitioner refused to answer a question as to whether he was then a member of the Communist Party. He did not claim his privilege against self-incrimination, but contended that the Subcommittee was without lawful authority to interrogate him, and that its questioning violated his rights under the First Amendment. For refusing to answer, 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: Petitioner's conviction is sustained. Pp. 365 U. S. 400-415.1. The Committee's investigation of Communist infiltration into basic industries in the South and Communist propaganda activities in the South was clearly authorized by Congress. Barenblatt v. United States, 360 U. S. 109. Pp. 365 U. S. 407-409.2. On this record, it cannot be said that, in questioning petitioner, the Subcommittee was not pursuing a valid legislative purpose. Pp. 365 U. S. 409-413.(a) Petitioner's contention that the Subcommittee's sole reason for interrogating him was to subject him to public censure, harassment and exposure because of his opposition to the existence of the Un-American Activities Committee is not supported by the record. Pp. 365 U. S. 411-412.(b) It is not for this Court to speculate as to the motives that may have prompted the decision of individual members of the Subcommittee to summon petitioner, since their motives alone would not vitiate an investigation that was serving a legislative purpose. P. 365 U. S. 412.(c) Petitioner was not summoned to appear as a result of an indiscriminate dragnet procedure, lacking in probable cause for belief that he possessed information which might be helpful to the Page 365 U. S. 400 Subcommittee, since the Subcommittee had reason to believe when it summoned him that he was an active Communist leader engaged primarily in propaganda activities. Pp. 365 U. S. 412-4133. The question whether petitioner was then a member of the Communist Party was pertinent to a subject under inquiry. P. 365 U. S. 413.4. Petitioner was clearly apprised of the pertinency of the question when he was directed to answer it. P. 365 U. S. 413.5. The Subcommittee's interrogation of petitioner did not violate his rights under the First Amendment. Barenblatt v. United States, 360 U. S. 109. Pp. 365 U. S. 413-415.(a) It was not unlawful for the Committee to investigate petitioner's conduct, even though he may have been engaged, at the moment, in public criticism of the Committee and attempting to influence public opinion in favor of abolishing it. P. 365 U. S. 414.(b) The Subcommittee's legitimate legislative interest was not the activity in which petitioner might have been engaged at the time, but in the manipulation and infiltration of activities and organizations by persons advocating the overthrow of the Government. Pp. 365 U. S. 414-415.272 F.2d 783 affirmed.

1998_97-9217

conviction and sentence. See 28 U. S. C. § 2255 (1994 ed., Supp. II). He alleged his counsel was ineffective for various reasons, including the failure to file a notice of appeal pursuant to petitioner's request. App. 63, 65. The District Court appointed new counsel, who filed an amended motion adding a claim that at the sentencing proceeding the trial court violated Federal Rule of Criminal Procedure 32(a)(2) by failing to advise petitioner of his right to appeal his sentence. This last claim gives rise to the question before us.The District Court held an evidentiary hearing. Petitioner testified that, upon being sentenced, he at once asked his lawyer to file an appeal. App. 139. Consistent with petitioner's testimony, the District Court found that, although the sentencing court had failed to advise petitioner of his right to appeal the sentence, petitioner knew of his right to appeal when the sentencing hearing occurred. No. 1:CR-90-97-01 (MD Pa., July 1, 1997), App. 168, 184. The court also credited the testimony of petitioner's trial counsel that petitioner told counsel he did not want to take an appeal because he hoped to cooperate with the Government and earn a sentence reduction. Id., at 180-181; cf. Fed. Rule Crim. Proc. 35(b) ("The court, on motion of the Government made within one year after the imposition of the sentence, may reduce a sentence to reflect a defendant's subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense").Relying on our holding in United States v. Timmreck, 441 U. S. 780 (1979), the District Court rejected petitioner's claim that any violation of Rule 32, without regard to prejudice, is enough to vacate a sentence under § 2255. The court held that petitioner was not entitled to relief because he was actually aware of his right to appeal at the time of sentencing. No. 1:CR-90-97-01, App. 184. The court also rejected petitioner's ineffective assistance of counsel claim based on its finding that petitioner did not request an appeal. Id., at 180.26The Court of Appeals for the Third Circuit affirmed the ruling. It held that the Rule 32(a)(2) violation was subject to harmless-error review and that, because petitioner was aware of his right to appeal, the purpose of the Rule had been served and petitioner was not entitled to relief. Judgt. order reported at 142 F.3d 430 (1998), App. 192, 194-195. We granted certiorari. 524 U. S. 982 (1998).In 1992, when petitioner was sentenced, Federal Rule ofCriminal Procedure 32(a)(2) provided:"Notification of Right To Appeal.-After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal, including any right to appeal the sentence, and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere, except that the court shall advise the defendant of any right to appeal the sentence. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant."Current Rule 32(c)(5) likewise imposes on the district court the duty to advise the defendant at sentencing of any right to appeal.The requirement that the district court inform a defendant of his right to appeal serves important functions. It will often be the case that, as soon as sentence is imposed, the defendant will be taken into custody and transported elsewhere, making it difficult for the defendant to maintain contact with his attorney. The relationship between the defendant and the attorney may also be strained after sentencing, in any event, because of the defendant's disappointment over the outcome of the case or the terms of the sentence. The attorney, moreover, concentrating on27other matters, may fail to tell the defendant of the right to appeal, though months later the attorney may think that he in fact gave the advice because it was standard practice to do so. In addition, if the defendant is advised of the right by the judge who imposes sentence, the defendant will realize that the appeal may be taken as of right and without affront to the trial judge, who may later rule upon a motion to modify or reduce the sentence. See Fed. Rule Crim. Proc. 35. Advising the defendant of his right at sentencing also gives him a clear opportunity to announce his intention to appeal and request the court clerk to file the notice of appeal, well before the 10-day filing period runs. See Rule 32(c)(5) ("If the defendant so requests, the clerk of the court must immediately prepare and file a notice of appeal on behalf of the defendant"); Fed. Rule App. Proc. 4(b) (establishing 10-day period for filing appeal, which may be extended for 30 days by district court for "excusable neglect").These considerations underscore the importance of the advice which comes from the court itself. Trial judges must be meticulous and precise in following each of the requirements of Rule 32 in every case. It is undisputed, then, that the court's failure to give the required advice was error.A violation of Rule 32(a)(2), however, does not entitle a defendant to collateral relief in all circumstances. Our precedents establish, as a general rule, that a court's failure to give a defendant advice required by the Federal Rules is a sufficient basis for collateral relief only when the defendant is prejudiced by the court's error. In Hill v. United States, 368 U. S. 424 (1962), for example, the District Court violated the then-applicable version of Rule 32(a) by failing to make explicit that the defendant had an opportunity to speak in his own behalf. The defendant did not allege that he had been "affirmatively denied an opportunity to speak," that the District Judge had been deprived of any relevant information, or that the defendant "would have had anything at all to say if he had been formally invited to speak." Id., at 429.28The defendant established only "a failure to comply with the formal requirements of the Rule," ibid., and alleged no prejudice; on these premises, the Court held the defendant was not entitled to collateral relief, id., at 428-429.So, also, in United States v. Timmreck, collateral relief was unavailable to a defendant who alleged only that the District Court "'fail[ed] to comply with the formal requirements'" of Rule 11 of the Federal Rules of Criminal Procedure by not advising him of a mandatory special parole term to which he was subject. 441 U. S., at 785. The defendant did not argue "that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty." Id., at 784. Having alleged no prejudice, defendant's "only claim [was] of a technical violation of the Rule" insufficient to justify habeas relief. Ibid.In this case, petitioner had full knowledge of his right to appeal, hence the District Court's violation of Rule 32(a)(2) by failing to inform him of that right did not prejudice him. The fact of the violation, standing alone, Hill and Timmreck instruct, does not entitle petitioner to collateral relief.Our decision in Rodriquez v. United States, 395 U. S. 327 (1969), does not hold otherwise. In Rodriquez, the Court held that when counsel fails to file a requested appeal, a defendant is entitled to resentencing and to an appeal without showing that his appeal would likely have had merit. I d., at 329-330. Without questioning the rule in Rodriquez, we conclude its holding is not implicated here because of the District Court's factual finding that petitioner did not request an appeal. While Rodriquez did note the sentencing court's failure to advise the defendant of his right to appeal, it did so only in the course of rejecting the Government's belated argument that the case should be remanded for factfinding to determine the reason counsel had not filed the appeal. The court's failure to advise the defendant of his right29was simply one factor-in combination with the untimeliness of the Government's request and the lengthy proceedings and delay the defendant had already endured-that led the Court to conclude that it was "just under the circumstances" to accord the petitioner final relief at that time without further proceedings. Id., at 331-332. This limited and factspecific conclusion does not support a general rule that a court's failure to advise a defendant of the right to appeal automatically requires resentencing to allow an appeal.Petitioner and his amicus would distinguish Timmreck (and, presumably, Hill) on the ground that the defendant in Timmreck had the opportunity to raise his claim on direct appeal but failed to do so, whereas the absence of the "judicial warning [required by Rule 32(a)(2)] may effectively undermine the defendant's ability to take a direct appeal." Brief for Petitioner 20. This argument, however, provides no basis for holding that a Rule 32(a)(2) oversight, though nonprejudicial, automatically entitles the defendant to habeas relief. Even errors raised on direct appeal are subject to harmless-error review. Rule 52(a) of the Federal Rules of Criminal Procedure prohibits federal courts from granting relief based on errors that "d[o] not affect substantial rights." See Rule 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded"); see also Bank of Nova Scotia v. United States, 487 U. S. 250, 254-255 (1988) ("[A] federal court may not invoke supervisory power to circumvent the harmless-error inquiry prescribed by Federal Rule of Criminal Procedure 52(a) .... Rule 52 is, in every pertinent respect, as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the Rule's mandate than they do to disregard constitutional or statutory provisions").Accordingly, we hold that petitioner is not entitled to habeas relief based on a Rule 32(a)(2) violation when he had independent knowledge of the right to appeal and so30was not prejudiced by the trial court's omission. The judgment of the Court of Appeals for the Third Circuit isAffirmed

OCTOBER TERM, 1998SyllabusPEGUERO v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 97-9217. Argued January 11, 1999-Decided March 2,1999After petitioner pleaded guilty to federal drug charges, the District Court sentenced him to prison, but failed to inform him at the sentencing hearing of his right to appeal the sentence. In a later motion for habeas relief, petitioner alleged that that failure violated the express terms of Federal Rule of Criminal Procedure 32(a)(2). The District Court rejected petitioner's claim that any Rule 32 violation, without regard to prejudice, is enough to vacate a sentence, and held that petitioner was not entitled to relief because he actually knew of his right to appeal when he was sentenced. The Third Circuit affirmed, holding that the Rule 32(a)(2) violation was subject to harmless-error review and that, because petitioner was aware of his right to appeal, the Rule's purpose had been served.Held: A district court's failure to advise a defendant of his right to appeal does not entitle him to habeas relief if he knew of his right and hence suffered no prejudice from the omission. Because Rule 32(a)(2) requires a district court to advise a defendant of any right to appeal his sentence, it is undisputed that the court's failure to give the required advice was error in this case. However, as a general rule, a court's failure to give a defendant advice required by the Federal Rules is a sufficient basis for collateral relief only when the defendant is prejudiced by the error. See, e. g., United States v. Timmreck, 441 U. S. 780. Because petitioner had full knowledge of his right to appeal, the fact that the court violated the Rule, standing alone, does not entitle him to collateral relief. The narrow holding in Rodriquez v. United States, 395 U. S. 327-that when counsel fails to file a requested appeal, a defendant is entitled to resentencing and an appeal without showing that his appeal would likely have merit-is not implicated here because the District Court found that petitioner did not request an appeal. Pp.26-30.142 F.3d 430, affirmed.KENNEDY, J., delivered the opinion for a unanimous Court. O'CONNOR, J., filed a concurring opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 30.24Daniel Isaiah Siegel argued the cause for petitioner.With him on the briefs was James Vincent Wade.Roy W McLeese III argued the cause for the United States. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Louis M. Fischer. *JUSTICE KENNEDY delivered the opinion of the Court. We granted certiorari to resolve a Circuit conflict over whether a district court's failure to advise a defendant of his right to appeal as required by the Federal Rules of Criminal Procedure provides a basis for collateral relief even when the defendant was aware of his right to appeal when the trial court omitted to give the advice. Compare, e. g., Thompson v. United States, 111 F.3d 109 (CAll 1997) (defendant entitled to relief even if he knew of his right to appeal through other sources); United States v. Sanchez, 88 F.3d 1243 (CADC 1996) (same); Reid v. United States, 69 F.3d 688 (CA2 1995) (per curiam) (same), with Tress v. United States, 87 F.3d 188 (CA7 1996) (defendant not entitled to relief if he knew of his right to appeal); United States v. Drummond, 903 F.2d 1171 (CA8 1990) (same). We hold that a district court's failure to advise the defendant of his right to appeal does not entitle him to habeas relief if he knew of his right and hence suffered no prejudice from the omission.Petitioner Manuel Peguero pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U. S. C. § 846. At a sentencing hearing held on April 22, 1992, the District Court sentenced petitioner to 274 months' imprisonment. The court did not inform petitioner of his right to appeal his sentence.In December 1996, more than four years after he was sentenced, petitioner filed a pro se motion to set aside his*John J. Gibbons, Lawrence S. Lustberg, Kevin McNulty, and David M. Porter filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.25Full Text of Opinion

1986_86-270

BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 483 U. S. 548.JUSTICE POWELL delivered the opinion of the Court.In this case, we consider the scope and constitutionality of a provision of the Amateur Sports Act of 1978, 36 U.S.C. §§ 371-396, that authorizes the United States Olympic Committee to prohibit certain commercial and promotional uses of the word "Olympic." Page 483 U. S. 525IPetitioner San Francisco Arts & Athletics, Inc. (SFAA), is a nonprofit California corporation. [Footnote 1] The SFAA originally sought to incorporate under the name "Golden Gate Olympic Association," but was told by the California Department of Corporations that the word "Olympic" could not appear in a corporate title. App. 95. After its incorporation in 1981, the SFAA nevertheless began to promote the "Gay Olympic Games," using those words on its letterheads and mailings and in local newspapers. Ibid. The games were to be a 9-day event to begin in August, 1982, in San Francisco, California. The SFAA expected athletes from hundreds of cities in this country and from cities all over the world. Id. at 402. The Games were to open with a ceremony "which will rival the traditional Olympic Games." Id. at 354. See id. at 402, 406, 425. A relay of over 2,000 runners would carry a torch from New York City across the country to Kezar Stadium in San Francisco. Id. at 98, 355, 357, 432. The final runner would enter the stadium with the "Gay Olympic Torch" and light the "Gay Olympic Flame." Id. at 357. The ceremony would continue with the athletes marching in uniform into the stadium behind their respective city flags. Id. at 354, 357, 402, 404, 414. Competition was to occur in 18 different contests, with the winners receiving gold, silver, and bronze medals. Id. at 354-355, 359, 407, 410. To cover the cost of the planned Games, the SFAA sold T-shirts, buttons, bumper stickers, and other merchandise bearing the title "Gay Olympic Games." Id. at 67, 94, 107, 113-114, 167, 360, 362, 427-428. [Footnote 2] Page 483 U. S. 526Section 110 of the Amateur Sports Act (Act), 92 Stat. 3048, 36 U.S.C. § 380, grants respondent United States Olympic Committee (USOC) [Footnote 3] the right to prohibit certain commercial and promotional uses of the word "Olympic" and various Olympic symbols. [Footnote 4] In late December, 1981, the executive Page 483 U. S. 527 director of the USOC wrote to the SFAA, informing it of the existence of the Amateur Sports Act, and requesting that the SFAA immediately terminate use of the word "Olympic" in its description of the planned Games. The SFAA at first agreed to substitute the word "Athletic" for the word "Olympic," but, one month later, resumed use of the term. The USOC became aware that the SFAA was still advertising its Games as "Olympic" through a newspaper article in May, 1982. In August, the USOC brought suit in the Federal District Court for the Northern District of California to enjoin the SFAA's use of the word "Olympic." The District Court granted a temporary restraining order and then a preliminary injunction. The Court of Appeals for the Ninth Circuit affirmed. After further proceedings, the District Court granted the USOC summary judgment and a permanent injunction.The Court of Appeals affirmed the judgment of the District Court. 781 F.2d 733 (1986). It found that the Act granted the USOC exclusive use of the word "Olympic" without requiring the USOC to prove that the unauthorized use was confusing and without regard to the defenses available to an entity sued for a trademark violation under the Lanham Act, 60 Stat. 427, as amended, 15 U.S.C. § 1051 et seq. It did not reach the SFAA's contention that the USOC enforced its rights in a discriminatory manner, because the court found that the USOC is not a state actor bound by the constraints of the Constitution. The court also found that the USOC's "property righ[t] [in the word 'Olympic' and its associated Page 483 U. S. 528 symbols and slogans] can be protected without violating the First Amendment." 781 F.2d at 737. The court denied the SFAA's petition for rehearing en banc. Three judges dissented, finding that the panel's interpretation of the Act raised serious First Amendment issues. 789 F.2d 1319, 1326 (1986).We granted certiorari, 479 U.S. 913 (1986), to review the issues of statutory and constitutional interpretation decided by the Court of Appeals. We now affirm.IIThe SFAA contends that the Court of Appeals erred in interpreting the Act as granting the USOC anything more than a normal trademark in the word "Olympic." "[T]he starting point in every case involving construction of a statute is the language itself.'" Kelly v. Robinson, 479 U. S. 36, 479 U. S. 43 (1986) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 421 U. S. 756 (1975) (POWELL, J., concurring)). Section 110 of the Act provides:"Without the consent of the [USOC], any person who uses for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition -- ""* * * *" "(4) the words 'Olympic,' 'Olympiad,' 'Citius Altius Fortius,' or any combination or simulation thereof tending to cause confusion, to cause mistake, to deceive, or to falsely suggest a connection with the [USOC] or any Olympic activity;""shall be subject to suit in a civil action by the [USOC] for the remedies provided in the [Lanham] Act."36 U.S.C. § 380(a). The SFAA argues that the clause "tending to cause confusion" is properly read to apply to the word "Olympic." But Page 483 U. S. 529 because there is no comma after "thereof," the more natural reading of the section is that "tending to cause confusion" modifies only "any combination or simulation thereof." Nevertheless, we do not regard this language as conclusive. We therefore examine the legislative history of this section.Before Congress passed § 110 of the Act, unauthorized use of the word "Olympic" was punishable criminally. The relevant statute, in force since 1950, did not require the use to be confusing. Instead, it made it a crime for:"any person . . . other than [the USOC] . . . for the purpose of trade, theatrical exhibition, athletic performance, and competition or as an advertisement to induce the sale of any article whatsoever or attendance at any theatrical exhibition, athletic performance, and competition or for any business or charitable purpose to use . . . the words 'Olympic,' 'Olympiad,' or 'Citius Altius Fortius,' or any combination of these words."64 Stat. 901, as amended, 36 U.S.C. § 379 (1976 ed.) (emphasis added). The House Judiciary Committee drafted the language of § 110 that was ultimately adopted. The Committee explained that the previous "criminal penalty has been found to be unworkable, as it requires the proof of a criminal intent." H.R.Rep. No. 95-1627, p. 15 (1978) (House Report). The changes from the criminal statute "were made in response to a letter from the Patent and Trademark Office of the Department of Commerce," ibid., that the Committee appended to the end of its Report. This letter explained:"Section 110(a)(4) makes actionable not only use of the words 'Olympic.' 'Olympiad,' 'Citius Altius Fortius,' and any combination thereof, but also any simulation or confusingly similar derivation thereof tending to cause confusion, to cause mistake, to deceive, or to falsely Page 483 U. S. 530 suggest a connection with the [USOC] or any Olympic activity. . . .""Section 110 carries forward some prohibitions from the existing statute enacted in 1950, and adds some new prohibitions, e.g., words described in section (a)(4) tending to cause confusion, to cause mistake, or to deceive with respect to the [USOC] or any Olympic activity."Id. at 38 (emphasis added). This legislative history demonstrates that Congress intended to provide the USOC with exclusive control of the use of the word "Olympic" without regard to whether an unauthorized use of the word tends to cause confusion.The SFAA further argues that the reference in § 110 to Lanham Act remedies should be read as incorporating the traditional trademark defenses as well. See 15 U.S.C. § 1115(b). [Footnote 5] This argument ignores the clear language of the section. Also, this shorthand reference to remedies replaced an earlier draft's specific list of remedies typically available for trademark infringement, e.g., injunctive relief, recovery of profits, damages, costs, and attorney's fees. See Lanham Act §§ 34, 35, 15 U.S.C. §§ 1116, 1117. This list contained no reference to trademark defenses. 124 Cong.Rec. 12865, 12866 (1978) (proposed § 110(c)). Moreover, the USOC already held a trademark in the word "Olympic." App. 378-382. Under the SFAA's interpretation, the Act would be largely superfluous. In sum, the language and legislative history of § 110 indicate clearly that Congress intended to grant the USOC exclusive use of the word "Olympic" without regard to whether use of the word tends to cause confusion, and that § 110 does not incorporate defenses available under the Lanham Act. Page 483 U. S. 531IIIThis Court has recognized that"[n]ational protection of trademarks is desirable . . . because trademarks foster competition and the maintenance of quality by securing to the producer the benefits of good reputation."Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U. S. 189, 469 U. S. 198 (1985). In the Lanham Act, 15 U.S.C. § 1051 et seq., Congress established a system for protecting such trademarks. Section 45 of the Lanham Act defines a trademark as"any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify and distinguish his goods, including a unique product, from those manufactured or sold by others."15 U.S.C. § 1127 (1982 ed., Supp. III). Under § 32 of the Lanham Act, the owner of a trademark is protected from unauthorized uses that are "likely to cause confusion, or to cause mistake, or to deceive." § 1114(1)(a). Section 33 of the Lanham Act grants several statutory defenses to an alleged trademark infringer. § 1115.The protection granted to the USOC's use of the Olympic words and symbols differs from the normal trademark protection in two respects: the USOC need not prove that a contested use is likely to cause confusion, and an unauthorized user of the word does not have available the normal statutory defenses. [Footnote 6] The SFAA argues, in effect, that the differences between the Lanham Act and § 110 are of constitutional dimension. First, the SFAA contends that the word "Olympic" is a generic [Footnote 7] word that could not gain trademark protection under the Lanham Act. The SFAA argues that this Page 483 U. S. 532 prohibition is constitutionally required, and thus that the First Amendment prohibits Congress from granting a trademark in the word "Olympic." Second, the SFAA argues that the First Amendment prohibits Congress from granting exclusive use of a word absent a requirement that the authorized user prove that an unauthorized use is likely to cause confusion. We address these contentions in turn.AThis Court has recognized that words are not always fungible, and that the suppression of particular words "run[s] a substantial risk of suppressing ideas in the process." Cohen v. California, 403 U. S. 15, 403 U. S. 26 (1971). The SFAA argues that this principle prohibits Congress from granting the USOC exclusive control of uses of the word "Olympic," a word that the SFAA views as generic. [Footnote 8] Yet this recognition always has been balanced against the principle that, when a word acquires value "as the result of organization and the expenditure of labor, skill, and money" by an entity, that entity constitutionally may obtain a limited property right in the word. International News Service v. Associated Press, 248 U. S. 215, 248 U. S. 239 (1918). See Trade-Mark Cases, 100 U. S. 82, 100 U. S. 92 (1879).There is no need in this case to decide whether Congress ever could grant a private entity exclusive use of a generic word. Congress reasonably could conclude that the commercial Page 483 U. S. 533 and promotional value of the word "Olympic" was the product of the USOC's "own talents and energy, the end result of much time, effort, and expense." Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 433 U. S. 575 (1977). The USOC, together with respondent International Olympic Committee (IOC), have used the word "Olympic" at least since 1896, when the modern Olympic Games began. App. 348. Baron Pierre de Coubertin of France, acting pursuant to a government commission, then proposed the revival of the ancient Olympic Games to promote international understanding. D. Chester, The Olympic Games Handbook 13 (1975). De Coubertin sought to identify the "spirit" of the ancient Olympic Games that had been corrupted by the influence of money and politics. See M. Finley & H. Pleket, The Olympic Games: The First Thousand Years 4 (1976). [Footnote 9] De Coubertin thus formed the IOC, that has established elaborate rules and procedures for the conduct of the modern Olympics. See Olympic Charter, Rules 26-69 (1985). In addition, these rules direct every national committee to protect the use of the Olympic flag, symbol, flame, and motto from unauthorized use. Id. Bye-laws to Rules 6 and 53. [Footnote 10] Under the IOC Page 483 U. S. 534 Charter, the USOC is the national olympic committee for the United States, with the sole authority to represent the United States at the Olympic Games. [Footnote 11] Pursuant to this authority, the USOC has used the Olympic words and symbols extensively in this country to fulfill its object under the Olympic Charter of "ensur[ing] the development and safeguarding of the Olympic Movement and sport." Id., Rule 24.The history of the origins and associations of the word "Olympic" demonstrates the meritlessness of the SFAA's contention that Congress simply plucked a generic word out of the English vocabulary and granted its exclusive use to the USOC. Congress reasonably could find that, since 1896, the word "Olympic" has acquired what in trademark law is known as a secondary meaning -- it "has become distinctive of [the USOC's] goods in commerce." Lanham Act, § 2(f), 15 U.S.C. § 1052(f). See Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. at 469 U. S. 194. The right to adopt and use such a word "to distinguish the goods or property [of] the person whose mark it is, to the exclusion of use by all other persons, has been long recognized." Trade-Mark Cases, supra, at 100 U. S. 92. Because Congress reasonably could conclude that the USOC has distinguished the word "Olympic" through its own efforts, Congress' decision to grant the USOC a limited property right in the word "Olympic" falls Page 483 U. S. 535 within the scope of trademark law protections, and thus certainly within constitutional bounds.BCongress also acted reasonably when it concluded that the USOC should not be required to prove that an unauthorized use of the word "Olympic" is likely to confuse the public. [Footnote 12] To the extent that § 110 applies to uses "for the purpose of trade [or] to induce the sale of any goods or services," 36 U.S.C. § 380(a), its application is to commercial speech. Commercial speech "receives a limited form of First Amendment protection." Posadas de Puerto Rico Assoc. v. Tourism Company of Puerto Rico, 478 U. S. 328, 478 U. S. 340 (1986); Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U. S. 557, 447 U. S. 562-563 (1980). Section 110 also allows the USOC to prohibit the use of "Olympic" for promotion of theatrical and athletic events. Although many of these promotional uses will be commercial speech, some uses may go beyond the "strictly business" context. See Friedman v. Rogers, 440 U. S. 1, 440 U. S. 11 (1979). In this case, the SFAA claims that its use of the word "Olympic" was intended to convey a political statement about the status of homosexuals in society. [Footnote 13] Thus, the SFAA claims that, in this case, § 110 suppresses political speech. Page 483 U. S. 536By prohibiting the use of one word for particular purposes, neither Congress nor the USOC has prohibited the SFAA from conveying its message. The SFAA held its athletic event in its planned format under the names "Gay Games I" and "Gay Games II" in 1982 and 1986, respectively. See n 2, supra. Nor is it clear that § 110 restricts purely expressive uses of the word "Olympic." [Footnote 14] Section 110 restricts only the manner in which the SFAA may convey its message. The restrictions on expressive speech properly are characterized as incidental to the primary congressional purpose of encouraging and rewarding the USOC's activities. [Footnote 15] The appropriate Page 483 U. S. 537 inquiry is thus whether the incidental restrictions on First Amendment freedoms are greater than necessary to further a substantial governmental interest. United States v. O'Brien, 391 U. S. 367, 391 U. S. 377 (1968). [Footnote 16]One reason for Congress to grant the USOC exclusive control of the word "Olympic," as with other trademarks, is to ensure that the USOC receives the benefit of its own efforts, so that the USOC will have an incentive to continue to produce a "quality product" that, in turn, benefits the public. See 1 J. McCarthy, Trademarks and Unfair Competition § 2-1, pp. 44-47 (1984). But in the special circumstance of the USOC, Congress has a broader public interest in promoting, through the activities of the USOC, the participation of amateur athletes from the United States in "the great four-yearly sport festival, the Olympic Games." Olympic Charter, Rule 1 (1985). The USOC's goal under the Olympic Charter, Rule 24(B), is to further the Olympic movement, that has as its aims: "to promote the development of those physical and moral qualities which are the basis of sport"; "to educate young people through sport in a spirit of better understanding between each other and of friendship, thereby helping to build a better and more peaceful world"; and "to spread the Olympic principles throughout the world, thereby creating international goodwill." Id., Rule 1. See also id., Rule 11 (aims of the IOC). Congress' interests in promoting the USOC's activities include these purposes as well as those Page 483 U. S. 538 specifically enumerated in the USOC's charter. [Footnote 17] Section 110 directly advances these governmental interests by supplying the USOC with the means to raise money to support Page 483 U. S. 539 the Olympics and encourages the USOC's activities by ensuring that it will receive the benefits of its efforts.The restrictions of § 110 are not broader than Congress reasonably could have determined to be necessary to further these interests. Section 110 primarily applies to all uses of the word "Olympic" to induce the sale of goods or services. Although the Lanham Act protects only against confusing uses, Congress' judgment respecting a certain word is not so limited. Congress reasonably could conclude that most commercial uses of the Olympic words and symbols are likely to be confusing. It also could determine that unauthorized uses, even if not confusing, nevertheless may harm the USOC by lessening the distinctiveness and thus the commercial value of the marks. See Schechter, The Rational Basis of Trademark Protection, 40 Harv.L.Rev. 813, 825 (1927) (one injury to a trademark owner may be "the gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name" by nonconfusing uses).In this case, the SFAA sought to sell T-shirts, buttons, bumper stickers, and other items, all emblazoned with the title "Gay Olympic Games." The possibility for confusion as to sponsorship is obvious. Moreover, it is clear that the SFAA sought to exploit the "commercial magnetism," see Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 316 U. S. 203, 316 U. S. 205 (1942), of the word given value by the USOC. There is no question that this unauthorized use could undercut the USOC's efforts to use, and sell the right to use, the word in the future, since much of the word's value comes from its limited use. Such an adverse effect on the USOC's activities is directly contrary to Congress' interest. Page 483 U. S. 540 Even though this protection may exceed the traditional rights of a trademark owner in certain circumstances, the application of the Act to this commercial speech is not broader than necessary to protect the legitimate congressional interest, and therefore does not violate the First Amendment.Section 110 also extends to promotional uses of the word "Olympic," even if the promotion is not to induce the sale of goods. Under § 110, the USOC may prohibit purely promotional uses of the word only when the promotion relates to an athletic or theatrical event. The USOC created the value of the word by using it in connection with an athletic event. Congress reasonably could find that use of the word by other entities to promote an athletic event would directly impinge on the USOC's legitimate right of exclusive use. The SFAA's proposed use of the word is an excellent example. The "Gay Olympic Games" were to take place over a 9-day period, and were to be held in different locations around the world. They were to include a torch relay, a parade with uniformed athletes of both sexes divided by city, an "Olympic anthem" and "Olympic Committee," and the award of gold, silver, and bronze medals, and were advertised under a logo of three overlapping rings. All of these features directly parallel the modern-day Olympics, not the Olympic Games that occurred in ancient Greece. [Footnote 18] The image the SFAA Page 483 U. S. 541 sought to invoke was exactly the image carefully cultivated by the USOC. The SFAA's expressive use of the word cannot be divorced from the value the USOC's efforts have given to it. The mere fact that the SFAA claims an expressive, as opposed to a purely commercial, purpose does not give it a First Amendment right to "appropriat[e] to itself the harvest of those who have sown." International News Service v. Associated Press, 248 U.S. at 248 U. S. 239-240. [Footnote 19] The USOC's right to prohibit use of the word "Olympic" in the promotion of athletic events is at the core of its legitimate property right. [Footnote 20] Page 483 U. S. 542IVThe SFAA argues that, even if the exclusive use granted by § 110 does not violate the First Amendment, the USOC's enforcement of that right is discriminatory in violation of the Fifth Amendment. [Footnote 21] The fundamental inquiry is whether the USOC is a governmental actor to whom the prohibitions of the Constitution apply. [Footnote 22] The USOC is a "private corporatio[n] Page 483 U. S. 543 established under Federal law." 36 U.S.C. § 1101(46). [Footnote 23] In the Act, Congress granted the USOC a corporate charter, § 371, imposed certain requirements on the USOC, [Footnote 24] and provided for some USOC funding through exclusive use of the Olympic words and symbols, § 380, and through direct grants. [Footnote 25]The fact that Congress granted it a corporate charter does not render the USOC a Government agent. All corporations Page 483 U. S. 544 act under charters granted by a government, usually by a State. They do not thereby lose their essentially private character. Even extensive regulation by the government does not transform the actions of the regulated entity into those of the government. See Jackson v. Metropolitan Edison Co., 419 U. S. 345 (1974). Nor is the fact that Congress has granted the USOC exclusive use of the word "Olympic" dispositive. All enforceable rights in trademarks are created by some governmental act, usually pursuant to a statute or the common law. The actions of the trademark owners nevertheless remain private. Moreover, the intent on the part of Congress to help the USOC obtain funding does not change the analysis. The Government may subsidize private entities without assuming constitutional responsibility for their actions. Blum v. Yaretsky, 457 U. S. 991, 457 U. S. 1011 (1982); Rendell-Baker v. Kohn, 457 U. S. 830, 457 U. S. 840 (1982).This Court also has found action to be governmental action when the challenged entity performs functions that have been "traditionally the exclusive prerogative'" of the Federal Government. Id. at 457 U. S. 842 (quoting Jackson v. Metropolitan Edison Co., supra, at 419 U. S. 353; quoted in Blum v. Yaretsky, supra, at 457 U. S. 1011) (emphasis added by the Rendell-Baker Court). Certainly the activities performed by the USOC serve a national interest, as its objects and purposes of incorporation indicate. See n 17, supra. The fact "[t]hat a private entity performs a function which serves the public does not make its acts [governmental] action." Rendell-Baker v. Kohn, supra, at 457 U. S. 842. The Amateur Sports Act was enacted "to correct the disorganization and the serious factional disputes that seemed to plague amateur sports in the United States." House Report at 8. See Oldfield v. Athletic Congress, 779 F.2d 505 (CA9 1985) (citing S.Rep. No. 95-770, pp. 2-3 (1978)). The Act merely authorized the Page 483 U. S. 545 USOC to coordinate activities that always have been performed by private entities. [Footnote 26] Neither the conduct nor the coordination of amateur sports has been a traditional governmental function. [Footnote 27] Page 483 U. S. 546Most fundamentally, this Court has held that a government"normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the [government]."Blum v. Yaretsky, supra, at 457 U. S. 1004; Rendell-Baker v. Kohn, supra, at 457 U. S. 840. See Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 436 U. S. 166 (1978); Jackson v. Metropolitan Edison Co., supra, at 419 U. S. 357; Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 407 U. S. 173 (1972); Adickes v. S. H. Kress & Co., 398 U. S. 144, Page 483 U. S. 547 170 (1970). The USOC's choice of how to enforce its exclusive right to use the word "Olympic" simply is not a governmental decision. [Footnote 28] There is no evidence that the Federal Government coerced or encouraged the USOC in the exercise of its right. At most, the Federal Government, by failing to supervise the USOC's use of its rights, can be said to exercise "[m]ere approval of or acquiescence in the initiatives" of the USOC. Blum v. Yaretsky, 457 U.S. at 457 U. S. 1004-1005. This is not enough to make the USOC's actions those of the Government. Ibid. See Flagg Bros., Inc. v. Brooks, supra, at 436 U. S. 164-165; Jackson v. Metropolitan Eddison Co., 419 U.S. at 419 U. S. 357. [Footnote 29] Because the USOC is not a governmental actor, the SFAA's claim that the USOC has enforced its rights in a discriminatory manner must fail. [Footnote 30] Page 483 U. S. 548VAccordingly, we affirm the judgment of the Court of Appeals for the Ninth Circuit.It is so ordered

U.S. Supreme CourtS.F. Arts & Athletics, Inc. v. USOC, 483 U.S. 522 (1987)San Francisco Arts & Athletics, Inc. v.United States Olympic CommitteeNo. 86-270Argued March 24, 1987Decided June 25, 1987483 U.S. 522SyllabusSection 110 of the Amateur Sports Act of 1978 (Act) grants respondent United States Olympic Committee (USOC) the right to prohibit certain commercial and promotional uses of the word "Olympic" and various Olympic symbols. Petitioner San Francisco Arts & Athletics, Inc. (SFAA), a nonprofit California corporation, promoted the "Gay Olympic Games," to be held in 1982, by using those words on its letterheads and mailings, in local newspapers, and on various merchandise sold to cover the costs of the planned Games. The USOC informed the SFAA of the existence of the Act and requested that it terminate use of the word "Olympic" in its description of the planned Games. When the SFAA failed to do so, the USOC brought suit in Federal District Court for injunctive relief. The court granted the USOC summary judgment and a permanent injunction. The Court of Appeals affirmed, holding that the Act granted the USOC exclusive use of the word "Olympic" without requiring the USOC to prove that the unauthorized use was confusing and without regard to the defenses available to an entity sued for a trademark violation under the Lanham Act. The court also found that the USOC's property right in the word and its associated symbols and slogans can be protected without violating the First Amendment. The court did not reach the SFAA's claim that the USOC's enforcement of its rights was discriminatory in violation of the equal protection component of the Due Process Clause of the Fifth Amendment, because it held that the USOC is not a governmental actor to which the Constitution applies.Held:1. There is no merit to the SFAA's contention that § 110 grants the USOC nothing more than a trademark in the word "Olympic," and precludes its use by others only when it tends to cause confusion. Nor is there any merit to the argument that § 110's reference to Lanham Act remedies should be read as incorporating traditional defenses as well. Section 110's language and legislative history indicate that Congress intended to grant the USOC exclusive use of the word "Olympic" without regard to whether use of the word tends to cause confusion, and that § 110 does not incorporate defenses available under the Lanham Act. Pp. 483 U. S. 528-530 Page 483 U. S. 5232. Also without merit is the SFAA's argument that the word "Olympic" is a generic word that constitutionally cannot gain trademark protection under the Lanham Act, and that the First Amendment prohibits Congress from granting a trademark in the word. When a word acquires value as the result of organization and the expenditure of labor, skill, and money by an entity, that entity constitutionally may obtain a limited property right in the word. Congress reasonably could conclude that the commercial and promotional value of the word "Olympic" was the product of the USOC's talents and energy, the end result of much time, effort, and expense. In view of the history of the origins and associations of the word "Olympic," Congress' decision to grant the USOC a limited property right in the word falls within the scope of trademark law protections, and thus within constitutional bounds. Pp. 483 U. S. 532-535.3. The First Amendment does not prohibit Congress from granting exclusive use of a word without requiring that the authorized user prove that an unauthorized use is likely to cause confusion. The SFAA claims that its use of the word "Olympic" was intended to convey a political statement about the status of homosexuals in society, and that § 110 may not suppress such speech. However, by prohibiting the use of one word for particular purposes, neither Congress nor the USOC has prohibited the SFAA from conveying its message. Section 110's restrictions on expressive speech are properly characterized as incidental to the primary congressional purpose of encouraging and rewarding the USOC's activities. Congress has a broad public interest in promoting, through the USOC's activities, the participation of amateur athletes from the United States in the Olympic Games. Even though § 110's protection may exceed traditional rights of a trademark owner in certain circumstances, the Act's application to commercial speech is not broader than necessary to protect the legitimate congressional interests, and therefore does not violate the First Amendment. Congress reasonably could find that the use of the word by other entities to promote an athletic event would directly impinge on the USOC's legitimate right of exclusive use. The mere fact that the SFAA claims an expressive, as opposed to a purely commercial, purpose does not give it a First Amendment right to appropriate the value which the USOC's efforts have given to the word. Pp. 483 U. S. 535-541.4. The SFAA's claim that the USOC has enforced its § 110 rights in a discriminatory manner in violation of the Fifth Amendment fails, because the USOC is not a governmental actor to whom the Fifth Amendment applies. The fact that Congress granted it a corporate charter does not render the USOC a Government agent. Moreover, Congress' intent to help the USOC obtain funding does not change the analysis. Nor does the USOC perform functions that are traditionally the exclusive Page 483 U. S. 524 prerogative of the Federal Government. The USOC's choice of how to enforce its exclusive right to use the word "Olympic" simply is not a governmental decision. Pp. 483 U. S. 542-547.781 F.2d 733 and 789 F.2d 1319, affirmed.POWELL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and SCALIA, JJ., joined, and in Parts I, II, and III of which BLACKMUN and O'CONNOR, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, in which BLACKMUN, J., joined, post, p. 483 U. S. 548. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 483 U. S. 548.

1984_83-1007

JUSTICE MARSHALL delivered the opinion of the Court.The question presented in this case is whether the Internal Revenue Service (IRS) must comply with the "John Doe" summons procedures of § 7609(f) of the Internal Revenue Code of 1954, 26 U.S.C. § 7609(f), when it serves a summons on a named taxpayer for the dual purpose of investigating both the tax liability of that taxpayer and the tax liabilities of other, unnamed parties.IPetitioner Tiffany Fine Arts, Inc., is a holding company for various subsidiaries that promote tax shelters. [Footnote 1] On October 6, 1981, Revenue Agent Joel Lewis issued four summonses to Tiffany, pursuant to 26 U.S.C. § 7602(a). This provision empowers the IRS to serve a summons on any person, without prior judicial approval, if the information sought is necessary to ascertain that person's tax liability. [Footnote 2] The Page 469 U. S. 312 summonses requested Tiffany's financial statements for the fiscal years ending October 31, 1979, and October 31, 1980, as well as a list of the names, addresses, Social Security numbers, and employer identification numbers of persons who had acquired from Tiffany licenses to distribute a medical device known as the "Pedi-Pulsor." [Footnote 3] Tiffany refused to comply with the summonses, and the Government then brought an enforcement action in the United States District Court for the Southern District of New York, pursuant to 26 U.S.C. §§ 7402(b) and 7604(a).Tiffany opposed enforcement, principally on the ground that the IRS's request for the names of the licensees indicated clearly that the IRS's "primary purpose" was to audit the Pedi-Pulsor licensees, not Tiffany itself. Tiffany offered to produce records in which the names of the licensees were redacted. It took the position that, if the IRS were truly Page 469 U. S. 313 interested in only Tiffany's liability, the redacted records would be sufficient for an adequate investigation.According to Tiffany, if the IRS wanted to go further and obtain the names of all the licensees, it could not proceed solely under § 7602, but would have to comply also with the requirements of § 7609(f), which applies to John Doe summonses. [Footnote 4] Under § 7609(f), the IRS cannot serve a summons seeking information on the tax liabilities of unnamed taxpayers without obtaining prior judicial approval at an ex parte proceeding.The IRS rejected Tiffany's offer of redacted documents. In an affidavit filed in support of the Government's enforcement petition, Revenue Agent Lewis asserted:"I am conducting an investigation, one purpose of which is to ascertain the correctness of the consolidated income tax returns filed by [Tiffany] for the fiscal years ending October 31, 1979, and October 31, 1980. One aspect of my investigation into the correctness of Tiffany's consolidated corporate income tax returns concerns possible underreporting of income received and questionable business deductions claimed by Tiffany and its subsidiaries."App. 14a. In a supplemental affidavit, Agent Lewis conceded that"[i]t is certainly possible that, once the individual [Pedi-Pulsor] licensees are identified, further inquiry will be made into whether they correctly reported their income tax liabilities."Id. at 24a. He reasserted, however, that one purpose of his investigation was to audit Tiffany; in particular, he sought to ascertain whether Tiffany had failed to report recourse and nonrecourse notes provided to Tiffany by the Pedi-Pulsor licensees. According to Lewis, the investigation of Tiffany could not be performed properly with redacted documents. Page 469 U. S. 314The District Court found that the IRS had made a sufficient showing of its interest in auditing Tiffany's returns and enforced the summonses. The United States Court of Appeals for the Second Circuit affirmed. 718 F.2d 7 (1983). It held that the John Doe provisions of § 7609(f) apply only when"the IRS issue[s] a summons to an identifiable party in whom it ha[s] no interest in order to investigate the potential tax liabilities of unnamed third parties."Id. at 13. Given the District Court's finding that one purpose of the summonses was to investigate Tiffany, § 7609(f) was not relevant here "even assuming that the summonses . . . were issued to Tiffany partly for the purpose of investigating Tiffany's customers." Id. at 13-14.The Federal Courts of Appeals are divided on the scope of § 7609(f). The Eighth and Eleventh Circuits, like the Second Circuit in this case, have held that the IRS need not comply with § 7609(f) when it seeks information on unnamed third parties as long as one purpose of the summons is to carry out a legitimate investigation of the named summoned party. See United States v. Barter Systems, Inc., 694 F.2d 163 (CA8 1982); United States v. Gottlieb, 712 F.2d 1363 (CA11 1983). In contrast, the Sixth Circuit has taken the opposite position, holding that the IRS must comply with § 7609(f) whenever it seeks information on unnamed third parties -- even in cases in which one of the purposes of the IRS is to investigate the named recipient of the summons. United States v. Thompson, 701 F.2d 1175 (1983). We granted certiorari to resolve this conflict. 466 U. S. 925 (1984). We affirm.IICongress enacted § 7609 in response to two decisions in which we gave a broad construction to the IRS's general summons power under § 7602(a). It is therefore useful to review those cases before embarking on an analysis of the statutory provision. Page 469 U. S. 315In Donaldson v. United States, 400 U. S. 517 (1971), the IRS issued to an employer a § 7602 summons seeking records prepared by the employer that would be relevant to an investigation of the tax liability of one of its employees. The employee obtained a preliminary injunction restraining his employer from complying with the summons. The Government then moved for enforcement. In response, the employer stated that it would have complied with the summons "were it not for' the preliminary injunction." Id. at 400 U. S. 521. The employee, however, filed motions to intervene in the proceedings, under Federal Rule of Civil Procedure 24(a)(2), in order to oppose enforcement. He stated that he had an interest in the outcome of the enforcement action and that this interest would not be adequately represented by his employer. We held that the employee's interest was not legally protectible and affirmed the denial of the employee's motions for intervention.Four years later, we decided United States v. Bisceglia, 420 U. S. 141 (1975). In Bisceglia, the IRS issued to a bank a § 7602 summons for the purpose of identifying an unnamed individual who had deposited a large amount of money in severely deteriorated bills. The bills appeared to have been stored for a long period of time under abnormal conditions, and the IRS suspected that they had been hidden to avoid taxes. Although we recognized the danger that the IRS might use its § 7602 summons power to "conduct fishing expeditions' into the private affairs of bank depositors," id. at 420 U. S. 150-151, we concluded that, on the facts of the case, the IRS had not abused its power. Thus, we held that the summons was enforceable.Section 7609, the provision at issue in this case, was clearly a response to these decisions. Both the Senate and the House Reports accompanying the bill that became § 7609 focused exclusively on the problem of "third-party summonses" -- that is, summonses served on a party that, like the Page 469 U. S. 316 employer in Donaldson and the bank in Bisceglia, is not the taxpayer under investigation. S.Rep. No. 94-938, p. 368 (1976); H.R.Rep. No. 94-658, p. 306 (1975). In fact, Donaldson and Bisceglia were the only two cases cited in the texts of the Reports.Referring to Donaldson, the House Report noted that, under the then-existing law,"there is no legal requirement that the taxpayer (or other party) to whose business or transactions the summoned records relate be informed that a third-party summons has been served."H.R.Rep. No. 94-658, at 306-307; see also S.Rep. No. 94-938, at 368. Referring to Bisceglia, both Reports stated:"In certain cases, where the [IRS] has reason to believe that certain transactions have occurred which may affect the tax liability of some taxpayer, but is unable for some reason to determine the specific taxpayer who may be involved, the [IRS] may serve a so-called 'John Doe' summons, which means that books and records relating to certain transactions are requested, although the name of the taxpayer is not specified."S.Rep. No. 94-938, at 368; H.R.Rep. No. 94-658, at 306.Both Reports asserted that the standards enunciated in Donaldson and Bisceglia might "unreasonably infringe on the civil rights of taxpayers, including the right to privacy." S.Rep. No. 94-938, at 368; H.R.Rep. No. 94-658, at 307. Section 7609 stems from this concern. To deal with the problem of a third-party summons in a case in which the IRS knows the identity of the taxpayer being investigated, Congress enacted §§ 7609(a) and (b); these subsections require that the IRS give notice of the summons to that taxpayer, and give the taxpayer the right "to intervene in any proceeding with respect to the enforcement of such summons." In this provision, Congress modified the result reached in Donaldson.In the case of a John Doe summons, where the IRS does not know the identity of the taxpayer under investigation, Page 469 U. S. 317 advance notice to that taxpayer is, of course, not possible. As a substitute for the procedures of §§ 7609(a) and (b), Congress enacted § 7609(f), which provides:"Any summons . . . which does not identify the person with respect to whose liability the summons is issued may be served only after a court proceeding in which the Secretary establishes that -- ""(1) the summons relates to the investigation of a particular person or ascertainable group or class of persons,""(2) there is a reasonable basis for believing that such person or group or class of persons may fail or may have failed to comply with any provision of any internal revenue law, and""(3) the information sought to be obtained from the examination of the records (and the identity of the person or persons with respect to whose liability the summons is issued) is not readily available from other sources"(emphasis added). See also § 7609(h)(2) (providing that these determinations be made ex parte, solely on the basis of the IRS's petition and supporting affidavits). Section § 7609(f) was a response to concerns that our decision in Bisceglia did not provide sufficient restraints, in the John Doe context, on the IRS's exercise of its summons power. See In re Tax Liabilities of John Does, 671 F.2d 977, 979 (CA6 1982). With this background in mind, we turn to consider the application of the provision to the facts of this case.IIIThe legal issue here is starkly posed. The District Court found as a matter of fact -- and the Court of Appeals affirmed -- that the IRS was pursuing a legitimate investigation of Tiffany's tax liability. [Footnote 5] At the same time, the Court of Page 469 U. S. 318 Appeals assumed, and the Government does not dispute, that the IRS also intended to investigate the tax liabilities of the unnamed Pedi-Pulsor licensees. The question before us, then, is whether the IRS must comply with § 7609(f) in the case of such dual purpose summonses.This Court has recognized that there is"a formidable line of precedent construing congressional intent to uphold the claimed enforcement authority of the [IRS] if [this] authority is necessary for the effective enforcement of the revenue laws and is not undercut by contrary legislative purposes."United States v. Euge, 444 U. S. 707, 444 U. S. 715-716 (1980). Just last Term, we reemphasized that "restrictions upon the IRS summons power should be avoided absent unambiguous directions from Congress.'" United States v. Arthur Young & Co., 465 U. S. 805, 465 U. S. 816 (1984) (quoting United States v. Bisceglia, 420 U.S. at 420 U. S. 150). Thus we examine whether the statute and legislative history indicate that Congress expressly considered the problem presented here, and attempt to discern the congressional purposes in enacting § 7609(f).AWe find that the language of the statute is of little direct help in determining how to treat dual purpose summonses. By their terms, the John Doe provisions of § 7609(f) apply to a summons "which does not identify the person with respect to whose liability the summons is issued." Tiffany argues that the term "person" in the statute must be read as "person" or "persons." Tr. of Oral Arg. 6. It then contends that, because the Pedi-Pulsor licensees are persons not identified Page 469 U. S. 319 in the summonses, § 7609(f) literally applies. See United States v. Thompson, 701 F.2d at 1178-1179.The Government's construction is diametrically at odds with Tiffany's:"Section 7609(f) by its terms applies only if a summons 'does not identify the person with respect to whose liability [it] is issued.' That simply is not the case here. The summonses enforced by the district court explicitly were issued '[i]n the matter of the tax liability of Tiffany Fine Arts Inc. & Subsidiaries.'"Brief for United States 13. See United States v. Barter Systems, Inc., 694 F.2d at 168. The task that the parties ask us to engage in is to determine whether the statutory reference to "the person" should be read as "every person" or whether it should be read as "at least one person." We are reluctant, on the basis of the statutory language alone, to reach even a tentative conclusion about the scope of § 7609(f). Neither construction strikes us as clearly compelling.Turning our attention to the legislative history, we note that the facts of this case are different from those of Donaldson and Bisceglia in one important respect: The summonses here were served on a party that was itself under IRS investigation. Congress did not address this situation in 1976 when it enacted the John Doe provisions. The Reports contain no mention of a summons issued for the dual purpose of investigating both the tax liability of the summoned party and the tax liabilities of unnamed parties. They focus exclusively on summonses issued to parties not themselves under investigation. [Footnote 6] We conclude that Congress did not expressly consider the problem of dual purpose summonses. Page 469 U. S. 320BWe, therefore, turn to consider whether dual purpose summonses give rise to the same concerns that prompted Congress to enact § 7609(f). The Reports discuss only one specific congressional worry: that the party receiving a summons would not have a sufficient interest in protecting the privacy of the records if that party was not itself a target of the summons. S.Rep. No. 94-938, at 368-369; H.R.Rep. No. 94-658, at 307. Such a taxpayer might have little incentive to oppose enforcement vigorously. Then, with no real adversary, the IRS could use its summons power to engage in "fishing expeditions" that might unnecessarily trample upon taxpayer privacy. S.Rep. No. 94-938, at 373; H.R.Rep. No. 94-658, at 311. Congress determined that, when the IRS uses its summons power not to conduct a legitimate investigation of an ascertainable target, but instead to look around for targets to investigate, the privacy rights of taxpayers are infringed unjustifiably. See S.Rep. No. 94-938, at 368; H.R.Rep. No. 94-658, at 307. Page 469 U. S. 321In response to this concern, §§ 7609(a) and (b) gave the real parties in interest -- those actually being investigated -- the right to intervene in the enforcement proceedings. Similarly, the John Doe requirements of § 7609(f) were adopted as a substitute for the procedures of §§ 7609(a) and (b). In effect, in the John Doe context, the court takes the place of the affected taxpayer under §§ 7609(a) and (b) and exerts a restraining influence on the IRS. However, § 7603 provides no opportunity for the unnamed taxpayers to assert any "personal defenses," such as attorney-client or Fifth Amendment privileges that might be asserted under §§ 7609(a) and (b). See H.R.Rep. No. 94-658, at 309; see also S.Rep. No. 94-938, at 370. What § 7609(f) does is to provide some guarantee that the information that the IRS seeks through a summons is relevant to a legitimate investigation, albeit that of an unknown taxpayer.When, as in this case, the summoned party is itself under investigation, the interests at stake are very different. First, by definition, the IRS is not engaged in a "fishing expedition" when it seeks information relevant to a legitimate investigation of a particular taxpayer. In such cases, any incidental effect on the privacy rights of unnamed taxpayers is justified by the IRS's interest in enforcing the tax laws. More importantly, the summoned party will have a direct incentive to oppose enforcement. In such circumstances, the vigilance and self-interest of the summoned party -- complemented by its right to resist enforcement -- will provide some assurance that the IRS will not strike out arbitrarily or seek irrelevant materials. See, e.g., United States v. Powell, 379 U. S. 48, 379 U. S. 57-58 (1964) ("[The IRS] must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the [IRS's] possession, and that the administrative steps required by the Code have been followed"). Here, for example, Tiffany argued vigorously -- albeit unsuccessfully -- against enforcement of the summonses. Page 469 U. S. 322This is not to say, of course, that as long as the summoned party is under investigation, the IRS will be guaranteed an adversary. It is possible that the summoned party, even if it is itself being investigated, will not oppose enforcement, and that as a result the IRS might obtain some information that is relevant only to the liabilities of unnamed taxpayers. We recognize that the privacy rights of the unnamed taxpayers might then be unnecessarily trampled upon. Congress, however, did not seek to ensure that the IRS have an adversary in all summons proceedings. All that it did was require that a party with a real interest in the investigation -- or the district court in the John Doe context -- have standing to challenge the IRS's exercise of its summons authority. It is not up to us, in construing the scope of this authority, to identify a problem that did not trouble Congress, or to attempt to correct it. We therefore conclude that, where the summoned party is itself being investigated, that party's self-interest provides sufficient protection against the evils that Congress sought to remedy when it enacted § 7609(f).We reject Tiffany's argument that, under the decision below, the IRS can circumvent the requirements of § 7609(f) merely by stating that the summoned party is under investigation. We do not find that argument persuasive for two reasons. First, in such a case, the summoned party would still have a sufficient interest in opposing enforcement, as it would have no way of ascertaining that the IRS was not in fact seeking to investigate it. This party would be an interested adversary, and the concerns to which § 7609(f) was addressed would thus be significantly attenuated. More importantly, if the district court finds in the enforcement proceeding that the IRS does not in fact intend to investigate the summoned party, or that some of the records requested are not relevant to a legitimate investigation of the summoned party, the IRS could not obtain all the information it sought unless it complied with § 7609(f).Our conclusion that the congressional concerns are adequately met without resort to § 7609(f) when the summoned Page 469 U. S. 323 party is itself under investigation should not be read to imply that the IRS can obtain from that party, without complying with § 7609(f), information that is relevant only to the investigation of unnamed taxpayers. In order to obtain such information, the IRS would have to satisfy the requirements of § 7609(f). Therefore, when the IRS does not comply with § 7609(f), the focus must be on whether the information sought is relevant to the investigation of the summoned party. Thus, we discuss next whether the names of the Pedi-Pulsor licensees were relevant to an investigation of Tiffany's tax liability.CDuring the enforcement proceedings, Tiffany argued that it was possible to perform an investigation of its tax liability without resort to the names of all the Pedi-Pulsor licensees. We have never held, however, that the IRS must conduct its investigations in the least intrusive way possible. Instead, the standard is one of relevance. See United States v. Powell, supra, at 379 U. S. 57. The Government argues persuasively that contact with the licensees might be necessary to verify that the transactions reported by Tiffany actually occurred. In fact, Tiffany itself acknowledged the relevance of the requested information, as it offered the IRS the names of certain licensees:"They might want to check a number of them at random, and this we are willing to do because we understand that they are entitled to review [Tiffany's] books."App. 35. Tiffany refused, however, to provide all of the names, as it did not think that in the course of its investigation of Tiffany, the IRS would want to audit "50 out of 50 or 150 out of 150 participants." Ibid.On the record before us, we agree with the Government that the names of the licensees "may be relevant" to the legitimate investigation of Tiffany. United States v. Powell, supra, at 379 U. S. 57. The decision of how many, and which, licensees to contact is one for the IRS -- not Tiffany -- to make. Having already found that Congress provided no "unambiguous Page 469 U. S. 324 direction" on the question whether the IRS needs to comply with § 7609(f) in the case of dual purpose summonses, and that the IRS's failure to comply with these requirements when serving such summonses does not undermine the goals that Congress sought to promote through § 7609(f), we conclude that the summonses here were properly enforced. [Footnote 7]IVWe hold that where, pursuant to § 7602, the IRS serves a summons on a known taxpayer with the dual purpose of investigating both the tax liability of that taxpayer and the tax liabilities of unnamed parties, it need not comply with the requirements for John Doe summonses set out in § 7609(f), as long as all the information sought is relevant to a legitimate investigation of the summoned taxpayer. The judgment of the Court of Appeals is therefore affirmed.It is so ordered

U.S. Supreme CourtTiffany Fine Arts, Inc. v. United States, 469 U.S. 310 (1985)Tiffany Fine Arts, Inc. v. United StatesNo. 83-1007Argued October 31, 1984Decided January 9, 1985469 U.S. 310SyllabusPetitioners are a holding company and its tax-shelter-promoting subsidiaries. The Internal Revenue Service (IRS) issued summonses to petitioners pursuant to § 7602(a) of the Internal Revenue Code, which empowers the IRS to serve summons on any person, without prior judicial approval, if the information sought is necessary to ascertain that person's tax liability. The summonses requested petitioners' financial statements for certain fiscal years, as well as the names of persons who had licenses from petitioners to distribute a certain medical device. When petitioners refused to comply with the summonses, the Government brought an enforcement action in Federal District Court. Petitioners opposed enforcement on the ground that the IRS's request for the licensees' names indicated that the IRS's "primary purpose" was to audit the licensees, not petitioners. Petitioners contended that, if the IRS wanted the licensees' names, it could not proceed solely under § 7602(a), but would have to comply also with the "John Doe" summons procedures of § 7609(f), which requires the IRS to obtain prior judicial approval to serve a summons seeking information on the tax liability of unnamed taxpayers. The District Court found that the IRS had made a sufficient showing of its interest in auditing petitioners' returns and enforced the summonses. The Court of Appeals affirmed, holding that § 7609(f) applies only when the IRS issues a summons to an identifiable party with whom it has no interest in order to investigate the unnamed third parties' tax liabilities.Held: Where, pursuant to § 7602(a), the IRS serves a summons on a known taxpayer with the dual purpose of investigating both that taxpayer's tax liability and unnamed parties' tax liabilities, it need not comply with § 7609(f), as long as all the information sought is relevant to a legitimate investigation of the summoned taxpayer. Where the summoned party is itself being investigated, that party's self-interest provides sufficient protection against the evils that Congress sought to remedy when it enacted § 7609(f), which serves as a restraint on the IRS's exercise of its summons power in the "John Doe" context. Here, on the record, the licensees' names "may be relevant" to the legitimate investigation Page 469 U. S. 311 of petitioners, and thus the summonses were properly enforced. Pp. 469 U. S. 314-324.718 F.2d 7, affirmed.MARSHALL, J., delivered the opinion for a unanimous Court.

1975_74-1606

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari in this case to determine whether School Board members, vested by state law with the Page 426 U. S. 484 power to employ and dismiss teachers, could, consistent with the Due Process Clause of the Fourteenth Amendment, dismiss teachers engaged in a strike prohibited by state law.IThe petitioners are a Wisconsin school district, the seven members of its School Board, and three administrative employees of the district. Respondents are teachers suing on behalf of all teachers in the district and the Hortonville Education Association (HEA), the collective bargaining agent for the district's teachers.During the 1972-1973 school year, Hortonville teachers worked under a master collective bargaining agreement; negotiations were conducted for renewal of the contract, but no agreement was reached for the 1973-1974 school year. The teachers continued to work while negotiations proceeded during the year without reaching agreement. On March 18, 1974, the members of the teachers' union went on strike, in direct violation of Wisconsin law. On March 20, the district superintendent sent all teachers a letter inviting them to return to work; a few did so. On March 23, he sent another letter, asking the 86 teachers still on strike to return, and reminding them that strikes by public employees were illegal; none of these teachers returned to work. After conducting classes with substitute teachers on March 26 and 27, the Board decided to conduct disciplinary hearings for each of the teachers on strike. Individual notices were sent to each teacher setting hearings for April 1, 2, and 3.On April 1, most of the striking teachers appeared before the Board with counsel. Their attorney indicated that the teachers did not want individual hearings, but preferred to be treated as a group. Although counsel agreed that the teachers were on strike, he raised several procedural objections to the hearings. He Page 426 U. S. 485 also argued that the Board was not sufficiently impartial to exercise discipline over the striking teachers, and that the Due Process Clause of the Fourteenth Amendment required an independent, unbiased decisionmaker. An offer of proof was tendered to demonstrate that the strike had been provoked by the Board's failure to meet teachers' demands, and respondents' counsel asked to cross-examine Board members individually. The Board rejected the request, but permitted counsel to make the offer of proof, aimed at showing that the Board's contract offers were unsatisfactory, that the Board used coercive and illegal bargaining tactics, and that teachers in the district had been locked out by the Board.On April 2, the Board voted to terminate the employment of striking teachers, and advised them by letter to that effect. However, the same letter invited all teachers on strike to reapply for teaching positions. One teacher accepted the invitation and returned to work; the Board hired replacements to fill the remaining positions.Respondents then filed suit against petitioners in state court, alleging, among other things, that the notice and hearing provided them by the Board were inadequate to comply with due process requirements. The trial court granted the Board's motion for summary judgment on the due process claim. The court found that the teachers, although on strike, were still employees of the Board under Wisconsin law, and that they retained a property interest in their positions under this Court's decisions in Perry v. Sindermann, 408 U. S. 593 (1972), and Board of Regents v. Roth, 408 U. S. 564 (1972). The court concluded that the only question before the Board on April 1 and 2 was whether the teachers were on strike in violation of state law, and that no evidence in mitigation was relevant. It rejected their claim that they were denied due process, since the teachers admitted they were on strike after receiving adequate notice and a hearing, Page 426 U. S. 486 including the warning that they were in violation of Wisconsin law.On appeal, the Wisconsin Supreme Court reversed, 66 Wis.2d 469, 225 N.W.2d 658 (1975). On the single issue now presented, it held that the Due Process Clause of the Fourteenth Amendment to the Federal Constitution required that the teachers' conduct and the Board's response be evaluated by an impartial decisionmaker other than the Board. The rationale of the Wisconsin Supreme Court appears to be that, although the teachers had admitted being on strike, and although the strike violated Wisconsin law, the Board had available other remedies than dismissal, including an injunction prohibiting the strike, a call for mediation, or continued bargaining. Relying on our holding in Morrissey v. Brewer, 408 U. S. 471 (1972), the Wisconsin court then held"it would seem essential, even in cases of undisputed or stipulated facts, that an impartial decisionmaker be charged with the responsibility of determining what action shall be taken on the basis of those facts."66 Wis.2d at 493, 225 N.W.2d at 671. The court held that the Board was not sufficiently impartial to make this choice:"The background giving rise to the ultimate facts in this case reveals a situation not at all conducive to detachment and impartiality on the part of the school board."Ibid. In reaching its conclusion, the court acknowledged that the Board's decision could be reviewed in other forums; but no reviewing body would give the teachers an opportunity to demonstrate that"another course of action such as mediation, injunction, continued collective bargaining or arbitration would have been a more reasonable response on the part of the decisionmaker."Id. at 496, 225 N.W.2d at 672.Since it concluded that state law provided no adequate remedy, the Wisconsin Supreme Court fashioned one it thought necessary to comply with federal due process Page 426 U. S. 487 principles. To leave with the Board "[a]s much control as possible . . . to set policy and manage the school," the court held that the Board should, after notice and hearing, make the decision to fire in the first instance. A teacher dissatisfied with the Board's decision could petition any court of record in the county for a de novo hearing on all issues; the trial court would "resolve any factual disputes and provide for a reasonable disposition." Id. at 498, 225 N.W.2d at 673. The Wisconsin Supreme Court recognized that this remedy was "not ideal, because a court may be required to make public policy decisions that are better left to a legislative or administrative body." Ibid. But it would suffice"until such time and only until such time as the legislature provides a means to establish a forum that will meet the requirements of due process."Ibid.We granted certiorari because of the state court's reliance on federal due process. 423 U.S. 821 (1975). We reverse.IIThe Hortonville School District is a common school district under Wisconsin law, financed by local property taxes and state school aid and governed by an elected seven-member School Board. Wis.Stat.Ann. § § 120.01, 120.03, 120.06 (1973). The Board has broad power over "the possession, care, control and management of the property and affairs of the school district." § 120.12(1); see also §§ 120.08, 120.10, 120.15-120.17. The Board negotiates terms of employment with teachers under the Wisconsin Municipal Employment Relations Act, § 111.70 et seq. (1974), and contracts with individual teachers on behalf of the district. The Board is the only body vested by statute with the power to employ and dismiss teachers. § 118.22(2). [Footnote 1] Page 426 U. S. 488The sole issue in this case is whether the Due Process Clause of the Fourteenth Amendment prohibits this School Board from making the decision to dismiss teachers admittedly engaged in a strike and persistently refusing to return to their duties. [Footnote 2] The Wisconsin Supreme Court held that state law prohibited the strike, and that termination of the striking teachers' employment was within the Board's statutory authority. 66 Wis.2d at 47981, 225 N.W.2d at 663-665. We are, of course, bound to accept the interpretation of Wisconsin law by the highest court of the State. Groppi v. Wisconsin, 400 U. S. 505, 400 U. S. 507 (1971); Kingsley Pictures Corp. v. Regents, 360 U. S. 684, 360 U. S. 688 (1959). The only decision remaining for the Board therefore involved the exercise of its discretion as to what should be done to carry out the duties the law placed on the Board. Page 426 U. S. 489ARespondents argue, and the Wisconsin Supreme Court held, that the choice presented for the Board's decision is analogous to that involved in revocation of parole in Morrissey v. Brewer, supra, that the decision could be made only by an impartial decisionmaker, and that the Board was not impartial. In Morrissey, the Court considered a challenge to state procedures employed in revoking the parole of state prisoners. There we noted that the parole revocation decision involved two steps: first, an inquiry whether the parolee had in fact violated the conditions of his parole; second, determining whether the violations found were serious enough to justify revocation of parole and the consequent deprivation of the parolee's conditional liberty. With respect to the second step, the Court observed:"The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. This part of the decision, too, depends on facts, and therefore it is important for the board to know not only that some violation was committed, but also to know accurately how many and how serious the violations were. Yet this second step, deciding what to do about the violation once it is identified, is not purely factual, but also predictive and discretionary."408 U.S. at 408 U. S. 480. Nothing in this case is analogous to the first step in Morrissey, since the teachers admitted to being on strike. But respondents argue that the School Board's decision in this case is, for constitutional purposes the same as the second aspect of the decision to revoke parole. The Board cannot make a "reasonable" decision on this issue, the Wisconsin Supreme Court held and respondents argue, Page 426 U. S. 490 because its members are biased in some fashion that the due process guarantees of the Fourteenth Amendment prohibit. [Footnote 3]Morrissey arose in a materially different context. We recognized there that a parole violation could occur at a place distant from where the parole revocation decision would finally be made; we also recognized the risk of factual error, such as misidentification. To minimize this risk, we held:"[D]ue process requires that, after the Page 426 U. S. 491 arrest [for parole violation], the determination that reasonable ground exists for revocation of parole should be made by someone not directly involved in the case."Id. at 408 U. S. 485. But this holding must be read against our earlier discussion in Morrissey of the parole officer's role as counselor for and confidant of the parolee; it is this same officer who, on the basis of preliminary information, decides to arrest the parolee. A school board is not to be equated with the parole officer as an arresting officer; the school board is more like the parole board, for it has ultimate plenary authority to make its decisions derived from the state legislature. General language about due process in a holding concerning revocation of parole is not a reliable basis for dealing with the School Board's power as an employer to dismiss teachers for cause. We must focus more clearly on, first, the nature of the bias respondents attribute to the Board, and, second, the nature of the interests at stake in this case.BRespondents' argument rests in part on doctrines that have no application to this case. They seem to argue that the Board members had some personal or official stake in the decision whether the teachers should be dismissed, comparable to the stake the Court saw in Tumey v. Ohio, 273 U. S. 510 (1927), or Ward v. Village of Monroeville, 409 U. S. 57 (1972); see also Gibson v. Berryhill, 411 U. S. 564 (1973), and that the Board has manifested some personal bitterness toward the teachers, aroused by teacher criticism of the Board during the strike, see, e.g., Taylor v. Hayes, 418 U. S. 488 (1974); Mayberry v. Pennsylvania, 400 U. S. 455 (1971). Even assuming that those cases state the governing standards when the decisionmaker is a public employer dealing with employees, the teachers did not show, and the Wisconsin courts did not find, that the Board members Page 426 U. S. 492 had the kind of personal or financial stake in the decision that might create a conflict of interest, and there is nothing in the record to support charges of personal animosity. The Wisconsin Supreme Court was careful"not to suggest . . . that the board members were anything but dedicated public servants, trying to provide the district with quality education . . . within its limited budget."66 Wis.2d at 494, 225 N.W.2d at 671. That court's analysis would seem to be confirmed by the Board's repeated invitations for striking teachers to return to work, the final invitation being contained in the letter that notified them of their discharge. [Footnote 4]The only other factor suggested to support the claim of bias is that the School Board was involved in the negotiations that preceded and precipitated the striking teachers' discharge. Participation in those negotiations was a statutory duty of the Board. The Wisconsin Supreme Court held that this involvement, without more, Page 426 U. S. 493 disqualified the Board from deciding whether the teachers should be dismissed:"The board was the collective bargaining agent for the school district, and thus was engaged in the collective bargaining process with the teachers' representative, the HEA. It is not difficult to imagine the frustration on the part of the board members when negotiations broke down, agreement could not be reached and the employees resorted to concerted activity. . . . They were . . . not uninvolved in the events which precipitated decisions they were required to make."Id. at 493-494, 225 N.W.2d at 671. Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not, however, disqualify a decisionmaker. Withrow v. Larkin, 421 U. S. 35, 421 U. S. 47 (1975); FTC v. Cement Institute, 333 U. S. 683, 333 U. S. 700-703 (1948). Nor is a decisionmaker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not "capable of judging a particular controversy fairly on the basis of its own circumstances." United States v. Morgan, 313 U. S. 409, 313 U. S. 421 (1941); see also FTC v. Cement Institute, supra at 333 U. S. 701.Respondents' claim and the Wisconsin Supreme Court's holding reduce to the argument that the Board was biased because it negotiated with the teachers on behalf of the school district without reaching agreement and learned about the reasons for the strike in the course of negotiating. From those premises, the Wisconsin court concluded that the Board lost its statutory power to determine that the strike and persistent refusal to terminate it amounted to conduct serious enough to warrant discharge of the strikers. Wisconsin statutes Page 426 U. S. 494 vest in the Board the power to discharge its employees, a power of every employer, whether it has negotiated with the employees before discharge or not. The Fourteenth Amendment permits a court to strip the Board of the otherwise unremarkable power the Wisconsin Legislature has given it only if the Board's prior involvement in negotiating with the teachers means that it cannot act consistently with due process.CDue process, as this Court has repeatedly held, is a term that "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). Determining what process is due in a given setting requires the Court to take into account the individual's stake in the decision at issue, as well as the State's interest in a particular procedure for making it. See Mathews v. Eldridge, 424 U. S. 319 (1976); Arnett v. Kennedy, 416 U. S. 134, 416 U. S. 168 (1974) (POWELL, J., concurring); id. at 416 U. S. 188 (WHITE, J., concurring and dissenting); Goldberg v. Kelly, 397 U. S. 254, 397 U. S. 263-266 (1970). Our assessment of the interests of the parties in this case leads to the conclusion that this is a very different case from Morrissey v. Brewer, and that the Board's prior role as negotiator does not disqualify it to decide that the public interest in maintaining uninterrupted classroom work required that teachers striking in violation of state law be discharged.The teachers' interest in these proceedings is, of course, self-evident. They wished to avoid termination of their employment, obviously an important interest, but one that must be examined in light of several factors. Since the teachers admitted that they were engaged in a work stoppage, there was no possibility of an erroneous factual determination on this critical threshold issue. Moreover, Page 426 U. S. 495 what the teachers claim as a property right was the expectation that the jobs they had left to go and remain on strike in violation of law would remain open to them. The Wisconsin court accepted at least the essence of that claim in defining the property right under state law, and we do not quarrel with its conclusion. But even if the property interest claimed here is to be compared with the liberty interest at stake in Morrissey, we note that both "the risk of an erroneous deprivation" and "the degree of potential deprivation" differ in a qualitative sense and in degree from those in Morrissey. Mathews v. Eldridge, supra at 424 U. S. 341.The governmental interests at stake in this case also differ significantly from the interests at stake in Morrissey. The Board's decision whether to dismiss striking teachers involves broad considerations, and does not, in the main, turn on the Board's view of the "seriousness" of the teachers' conduct or the factors they urge mitigated their violation of state law. It was not an adjudicative decision, for the Board had an obligation to make a decision based on its own answer to an important question of policy: what choice among the alternative responses to the teachers' strike will best serve the interests of the school system, the interests of the parents and children who depend on the system, and the interests of the citizens whose taxes support it? The Board's decision was only incidentally a disciplinary decision; it had significant governmental and public policy dimensions as well. See Summers, Public Employee Bargaining: A Political Perspective, 83 Yale L.J. 1156 (1974).State law vests the governmental, or policymaking, function exclusively in the School Board, and the State has two interests in keeping it there. First, the Board is the body with overall responsibility for the governance of the school district; it must cope with the myriad day-to-day Page 426 U. S. 496 problems of a modern public school system including the severe consequences of a teachers' strike; by virtue of electing them, the constituents have declared the Board members qualified to deal with these problems, and they are accountable to the voters for the manner in which they perform. Second, the state legislature has given to the Board the power to employ and dismiss teachers, as a part of the balance it has struck in the area of municipal labor relations; altering those statutory powers as a matter of federal due process clearly changes that balance. Permitting the Board to make the decision at issue here preserves its control over school district affairs, leaves the balance of power in labor relations where the state legislature struck it, and assures that the decision whether to dismiss the teachers will be made by the body responsible for that decision under state law. [Footnote 5]IIIRespondents have failed to demonstrate that the decision to terminate their employment was infected by the sort of bias that we have held to disqualify other decisionmakers as a matter of federal due process. A Page 426 U. S. 497 showing that the Board was "involved" in the events preceding this decision, in light of the important interest in leaving with the Board the power given by the state legislature, is not enough to overcome the presumption of honesty and integrity in policymakers with decisionmaking power. Cf. Withrow v. Larkin, 421 U.S. at 421 U. S. 47. Accordingly, we hold that the Due Process Clause of the Fourteenth Amendment did not guarantee respondents that the decision to terminate their employment would be made or reviewed by a body other than the School Board.The judgment of the Wisconsin Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtHortonville Dist. v. Hortonville Educ. Assn., 426 U.S. 482 (1976)Hortonville Joint School District No. 1 v. Hortonville Education Assn.No. 74-1606Argued February 23-24, 1976Decided June 17, 1976426 U.S. 482SyllabusAfter negotiations for renewal of a collective bargaining contract between respondent teachers and petitioner Wisconsin School Board failed to produce agreement, the teachers went on strike in direct violation of Wisconsin law. The Board thereafter conducted individual disciplinary hearings. Through counsel, the striking teachers advised that they wished to be treated as a group, and contended that the Board was not sufficiently impartial properly to discipline them. The Board terminated the striking teachers' employment, whereupon respondent teachers brought this suit, contending, inter alia, that the hearing was inadequate to meet due process requirements. The state trial court granted the Board's motion for summary judgment. The Wisconsin Supreme Court reversed, holding that the procedure followed by the Board had violated federal due process requirements, since an impartial decisionmaker was required to resolve the controversy, and the Board was not sufficiently impartial. Since state law afforded no adequate remedy, the court provided that, after the Board's notice to fire a teacher and a hearing, a teacher dissatisfied with the Board's decision could secure a de novo hearing from a county court of record on all issues.Held: The Due Process Clause of the Fourteenth Amendment did not guarantee respondent teachers that the decision to terminate their employment would be made or reviewed by a body other than the School Board. Morrissey v. Brewer, 408 U. S. 471, distinguished. Pp. 426 U. S. 489-497.(a) The record does not support respondents' contention that the Board members had a personal or official stake in the dismissal decision sufficient to disqualify them. Pp. 426 U. S. 491-492.(b) Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not disqualify a decisionmaker, Withrow v. Larkin, 421 U. S. 35, 421 U. S. 47; FTC v. Cement Institute, 333 U. S. 683, 333 U. S. 700-703, and here, the School Board's participation pursuant to its statutory duty in the Page 426 U. S. 483 collective bargaining negotiations was not a disqualifying factor. Pp. 426 U. S. 492-494.(c) The School Board, in whom the State has vested the policymaking function, is the body with the overall responsibility for governing the school district, and its members are accountable to the voters for how they discharge their statutory duties, one of which is to employ and dismiss teachers. Permitting the Board to make the policy decision at issue here preserves its control over school district affairs, leaving the balance of power over this aspect of labor relations where the state legislature has placed it. Pp. 426 U. S. 495-496.66 Wis.2d 469, 225 N.W.2d 658, reversed and remanded.BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 426 U. S. 497.