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Pautz noticed a 1981 two-door Oldsmobile with California license plates in a motel parking lot. The car attracted Pautz's attention for two reasons: because older model, twodoor General Motors cars are a favorite with drug couriers because it is easy to hide things in them; and because California is a "source State" for drugs. Detective Pautz radioed his dispatcher to inquire about the car's registration. The dispatcher informed Pautz that the owner was either Miguel Ledesma Ornelas or Miguel Ornelas Ledesma from San Jose, California; Pautz was unsure which name the dispatcher gave. Detective Pautz checked the motel registry and learned that an Ismael Ornelas accompanied by a second man had registered at 4 a.m., without reservations.Pautz called for his partner, Donald Hurrle, a detective with approximately 25 years of law enforcement experience, assigned for the past 6 years to the drug enforcement unit. When Hurrle arrived at the scene, the officers contacted the local office of the Drug Enforcement Administration (DEA) and asked DEA personnel to run the names Miguel Ledesma Ornelas and Ismael Ornelas through the Narcotics and Dangerous Drugs Information System (NADDIS), a federal database of known and suspected drug traffickers. Both names appeared in NADDIS. The NADDIS report identified Miguel Ledesma Ornelas as a heroin dealer from EI Centro, California, and Ismael Ornelas, Jr., as a cocaine dealer from Tucson, Arizona. The officers then summoned Deputy Luedke and the department's drug-sniffing dog, Merlin. Upon their arrival, Detective Pautz left for another assignment. Detective Hurrle informed Luedke of what they knew and together they waited.Sometime later, petitioners emerged from the motel and got into the Oldsmobile. Detective Hurrle approached the car, identified himself as a police officer, and inquired whether they had any illegal drugs or contraband. Petitioners answered "No." Hurrle then asked for identification and was given two California driver's licenses bearing the names693Saul Ornelas and Ismael Ornelas. Hurrle asked them if he could search the car and petitioners consented. The men appeared calm, but Ismael was shaking somewhat. Deputy Luedke, who over the past nine years had searched approximately 2,000 cars for narcotics, searched the Oldsmobile's interior. He noticed that a panel above the right rear passenger armrest felt somewhat loose and suspected that the panel might have been removed and contraband hidden inside. Luedke would testify later that a screw in the doorjam adjacent to the loose panel was rusty, which to him meant that the screw had been removed at some time. Luedke dismantled the panel and discovered two kilograms of cocaine. Petitioners were arrested.Petitioners filed pretrial motions to suppress, alleging that the police officers violated their Fourth Amendment rights when the officers detained them in the parking lot and when Deputy Luedke searched inside the panel without a warrant.1 The Government conceded in the court below that when the officers approached petitioners in the parking lot, a reasonable person would not have felt free to leave, so the encounter was an investigatory stop. See 16 F.3d 714, 716 (CA71994). An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion, Terry v. Ohio, 392 U. S. 1 (1968), and a warrantless search of a car is valid if based on probable cause, California v. Acevedo, 500 U. S. 565, 569-570 (1991).1 Petitioners also alleged that they had not given their consent to search the interior of the car. The Magistrate Judge rejected this claim, finding that the record "clearly establishe[d] consent to search the Oldsmobile" and that "neither [petitioner] placed any restrictions on the areas the officers could search." App. 21. The Magistrate ruled that this consent did not give the officers authority to search inside the panel, however, because under Seventh Circuit precedent the police may not dismantle the car body during an otherwise valid search unless the police have probable cause to believe the car's panels contain narcotics. See United States v. Garcia, 897 F.2d 1413, 1419-1420 (1990). We assume correct the Circuit's limitation on the scope of consent only for purposes of this decision.694After conducting an evidentiary hearing, the Magistrate Judge concluded that the circumstances gave the officers reasonable suspicion, but not probable cause. The Magistrate found, as a finding of fact, that there was no rust on the screw and hence concluded that Deputy Luedke had an insufficient basis to conclude that drugs would be found within the panel. The Magistrate nonetheless recommended that the District Court deny the suppression motions because he thought, given the presence of the drug-sniffing dog, that the officers would have found the cocaine by lawful means eventually and therefore the drugs were admissible under the inevitable discovery doctrine. See Nix v. Williams, 467 U. S. 431 (1984).The District Court adopted the Magistrate's recommendation with respect to reasonable suspicion, but not its reasoning as to probable cause. The District Court thought that the model, age, and source-State origin of the car, and the fact that two men traveling together checked into a motel at 4 o'clock in the morning without reservations, formed a drug-courier profile and that this profile together with the NADDIS reports gave rise to reasonable suspicion of drugtrafficking activity; in the court's view, reasonable suspicion became probable cause when Deputy Luedke found the loose panel. Accordingly, the court ruled that the cocaine need not be excluded.2The Court of Appeals reviewed deferentially the District Court's determinations of reasonable suspicion and probable cause; it would reverse only upon a finding of "clear error." 32 The District Court emphasized twice that it did not reject the Magistrate's recommendation with respect to the inevitable discovery doctrine. App. 30-31, and n. 2; id., at 43-44. But on appeal the Government did not defend the seizure on this alternative ground and the Seventh Circuit considered the argument waived. Id., at 71-72.3 While the Seventh Circuit uses the term "clear error" to denote the deferential standard applied when reviewing determinations of reasonable suspicion or probable cause, we think the preferable term is "abuse of discretion." See Pierce v. Underwood, 487 U. S. 552, 558 (1988). "Clear69516 F. 3d, at 719. The court found no clear error in the reasonable-suspicion analysis and affirmed that determination. Ibid. With respect to the probable-cause finding, however, the court remanded the case for a determination on whether Luedke was credible when testifying about the loose panel. Id., at 721-722.On remand, the Magistrate Judge expressly found the testimony credible. The District Court accepted the finding, and once again ruled that probable cause supported the search. The Seventh Circuit held that determination not clearly erroneous. Judgt. order reported at 52 F.3d 328 (1995).We granted certiorari to resolve the conflict among the Circuits over the applicable standard of appellate review. 516 U. S. 963 (1996).4Articulating precisely what "reasonable suspicion" and "probable cause" mean is not possible. They are commonsense, nontechnical conceptions that deal with "'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Illinois v. Gates, 462 U. S. 213, 231 (1983) (quoting Brinegar v. United States, 338 U. S. 160, 175 (1949)); see United States v. Sokolow, 490 U. S. 1, 7-8 (1989). As such, the standards are "not readily, or even usefully, reduced to a neat set of legalerror" is a term of art derived from Rule 52(a) of the Federal Rules of Civil Procedure, and applies when reviewing questions of fact.4 Compare, e. g., United States v. Puerta, 982 F.2d 1297, 1300 (CA9 1992) (de novo review); United States v. Ramos, 933 F.2d 968, 972 (CAll 1991) (same), cert. denied, 503 U. S. 908 (1992); United States v. Patrick, 899 F.2d 169, 171 (CA2 1990) (same), with United States v. Spears, 965The United States, in accord with petitioners, contends that a de novo standard of review should apply to determinations of probable cause and reasonable suspicion. We therefore invited Peter D. Isakoff to brief and argue this case as amicus curiae in support of the judgment below. 516 U. S. 1008 (1996). Mr. Isakoff accepted the appointment and has well fulfilled his assigned responsibility.696rules." Gates, supra, at 232. We have described reasonable suspicion simply as "a particularized and objective basis" for suspecting the person stopped of criminal activity, United States v. Cortez, 449 U. S. 411, 417-418 (1981), and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found, see Brinegar, supra, at 175-176; Gates, supra, at 238. We have cautioned that these two legal principles are not "finely-tuned standards," comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. Gates, supra, at 235. They are instead fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed. Gates, supra, at 232; Brinegar, supra, at 175 ("The standard of proof [for probable cause] is ... correlative to what must be proved"); Ker v. California, 374 U. S. 23, 33 (1963) ("This Cour[t] [has a] long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application"; "[e]ach case is to be decided on its own facts and circumstances" (internal quotation marks omitted)); Terry v. Ohio, 392 U. S., at 29 (the limitations imposed by the Fourth Amendment "will have to be developed in the concrete factual circumstances of individual cases").The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: "[T]he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another697way, whether the rule of law as applied to the established facts is or is not violated." Pullman-Standard v. Swint, 456 U. S. 273, 289, n. 19 (1982).We think independent appellate review of these ultimate determinations of reasonable suspicion and probable cause is consistent with the position we have taken in past cases. We have never, when reviewing a probable-cause or reasonable-suspicion determination ourselves, expressly deferred to the trial court's determination. See, e. g., Brinegar, supra (rejecting District Court's conclusion that the police lacked probable cause); Alabama v. White, 496 U. S. 325 (1990) (conducting independent review and finding reasonable suspicion). A policy of sweeping deference would permit, "[i]n the absence of any significant difference in the facts," "the Fourth Amendment's incidence [to] tur[n] on whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute probable cause." Brinegar, supra, at 171. Such varied results would be inconsistent with the idea of a unitary system of law. This, if a matter-of-course, would be unacceptable.In addition, the legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify, the legal principles. See Miller v. Fenton, 474 U. S. 104, 114 (1985) (where the "relevant legal principle can be given meaning only through its application to the particular circumstances of a case, the Court has been reluctant to give the trier of fact's conclusions presumptive force and, in so doing, strip a federal appellate court of its primary function as an expositor of law").Finally, de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined "'set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of698law enforcement.'" New York v. Belton, 453 U. S. 454, 458 (1981); see also Thompson v. Keohane, 516 U. S. 99, 115 (1995) ("[T]he law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law," and those effects "serve legitimate law enforcement interests").It is true that because the mosaic which is analyzed for a reasonable-suspicion or probable-cause inquiry is multifaceted, "one determination will seldom be a useful 'precedent' for another," Gates, supra, at 238, n. 11. But there are exceptions. For instance, the circumstances in Brinegar, supra, and Carroll v. United States, 267 U. S. 132 (1925), were so alike that we concluded that reversing the Court of Appeals' decision in Brinegar was necessary to be faithful to Carroll. Brinegar, supra, at 178 ("Nor ... can we find in the present facts any substantial basis for distinguishing this case from the Carroll case"). We likewise recognized the similarity of facts in United States v. Sokolow, supra, and Florida v. Royer, 460 U. S. 491 (1983) (in both cases, the defendant traveled under an assumed name; paid for an airline ticket in cash with a number of small bills; traveled from Miami, a source city for illicit drugs; and appeared nervous in the airport). The same was true both in United States v. Ross, 456 U. S. 798 (1982), and California v. Acevedo, 500 U. S. 565 (1991), see id., at 572 ("The facts in this case closely resemble the facts in Ross"); and in United States v. Mendenhall, 446 U. S. 544 (1980), and Reid v. Georgia, 448 U. S. 438 (1980), see id., at 443 (Powell, J., concurring) ("facts [in Mendenhall] [are] remarkably similar to those in the present case"). And even where one case may not squarely control another one, the two decisions when viewed together may usefully add to the body of law on the subject.The Court of Appeals, in adopting its deferential standard of review here, reasoned that de novo review for warrantless searches would be inconsistent with the "'great deference'" paid when reviewing a decision to issue a warrant, see Illi-699nois v. Gates, 462 U. S. 213 (1983). See United States v. Spears, 965 F.2d 262, 269-271 (CA71992). We cannot agree. The Fourth Amendment demonstrates a "strong preference for searches conducted pursuant to a warrant," Gates, supra, at 236, and the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probablecause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive.We therefore hold that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.A trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise, a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference. For example, what may not amount to reasonable suspicion at a motel located alongside a transcontinental highway at the height of the summer tourist season may rise to that level in December in Milwaukee. That city is unlikely to have been an overnight stop selected at the last minute by a traveler coming from California to points east. The 85-mile width of Lake Michigan blocks any further eastward progress. And while the city's salubrious summer climate and seasonal attractions bring many tourists at that time of year, the same is not true in December. Milwaukee's average daily high temperature in that month is 31 degrees and its average daily low is 17 degrees; the percentage of possible sunshine is only 38 percent. It is a reasonable inference that a Californian stopping in Milwaukee in December is either there700to transact business or to visit family or friends. The background facts, though rarely the subject of explicit findings, inform the judge's assessment of the historical facts.In a similar vein, our cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists. See, e. g., United States v. Ortiz, 422 U. S. 891, 897 (1975). To a layman the sort of loose panel below the back seat armrest in the automobile involved in this case may suggest only wear and tear, but to Officer Luedke, who had searched roughly 2,000 cars for narcotics, it suggested that drugs may be secreted inside the panel. An appeals court should give due weight to a trial court's finding that the officer was credible and the inference was reasonable.We vacate the judgments and remand the case to the Court of Appeals to review de novo the District Court's determinations that the officer had reasonable suspicion and probable cause in this case.It is so ordered

OCTOBER TERM, 1995SyllabusORNELAS ET AL. v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 95-5257. Argued March 26, 1996-Decided May 28,1996In denying petitioners' motion to suppress cocaine found in their car, the District Court ruled that the police had reasonable suspicion to stop and question petitioners, and probable cause to remove one of the interior panels where a package containing the cocaine was found. The Court of Appeals ultimately affirmed both determinations, reviewing each "deferentially," and "for clear error," and finding no clear error in either instance.Held: The ultimate questions of reasonable suspicion to stop and probable cause to make a warrantless search should be reviewed de novo. The principal components of either inquiry are (1) a determination of the historical facts leading up to the stop or search, and (2) a decision on the mixed question of law and fact whether the historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. Independent appellate review of the latter determination is consistent with the position taken by this Court, see, e. g., Brinegar v. United States, 338 U. S. 160; will prevent unacceptably varied results based on the interpretation of similar facts by different trial judges, see id., at 171; is necessary if appellate courts are to maintain control of, and to clarify, the pertinent legal rules, see Miller v. Fenton, 474 U. S. 104, 114; and will tend to unify precedent and to provide police with a defined set of rules which, in most instances, will make it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement, see, e. g., New York v. Belton, 453 U. S. 454, 458. However, a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn therefrom by resident judges, who view such facts in light of the community's distinctive features and events, and by local police, who view the facts through the lens of their experience and expertise. Pp. 695-700.16 F.3d 714 and 52 F.3d 328, vacated and remanded.REHNQUIST, C. J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, post, p. 700.691Robert G. LeBell argued the cause for petitioners. With him on the briefs was Brian W Gleason.Cornelia T. L. Pillard argued the cause for the United States. With her on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and Joel M. Gershowitz.Peter D. Isakoff, by invitation of the Court, 516 U. S. 1008, argued the cause and filed a brief as amicus curiae in support of the judgment below. *CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioners each pleaded guilty to possession of cocaine with intent to distribute. They reserved their right to appeal the District Court's denial of their motion to suppress the cocaine found in their car. The District Court had found reasonable suspicion to stop and question petitioners as they entered their car, and probable cause to remove one of the interior panels where a package containing two kilograms of cocaine was found. The Court of Appeals opined that the findings of reasonable suspicion to stop, and probable cause to search, should be reviewed "deferentially," and "for clear error." We hold that the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo.The facts are not disputed. In the early morning of a December day in 1992, Detective Michael Pautz, a 20-year veteran of the Milwaukee County Sheriff's Department with 2 years specializing in drug enforcement, was conducting drug-interdiction surveillance in downtown Milwaukee.*Tracey Maclin, Steven R. Shapiro, and Barbara E. Bergman filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.Fred E. Inbau, Wayne W Schmidt, James P. Manak, and Bernard J.Farber filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging affirmance.692Full Text of Opinion

1976_75-1583

MR. JUSTICE POWELL delivered the opinion of the Court.The issue in this case concerns the scope of judicial review of the Attorney General's failure to interpose a timely objection under § 5 of the Voting Rights Act of 1965 to a change in the voting laws of a jurisdiction subject to that Act.IThe events leading up to this litigation date back to November 11, 1971, when South Carolina enacted Act 932 reapportioning the State Senate. [Footnote 1] South Carolina promptly submitted Act 932 to the Attorney General of the United States for preclearance review pursuant to § 5 of the Voting Page 432 U. S. 494 Rights Act. 79 Stat. 439, as amended, 42 U.S.C. § 1973c (1970 ed. Supp. V). [Footnote 2] That section forbids States subject to the Act to implement any change in "any voting qualification Page 432 U. S. 495 or prerequisite to voting, or standard, practice, or procedure with respect to voting" without first (i) obtaining a declaratory judgment from the District Court for the District of Columbia that the proposed change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color," or (ii) submitting the change to the Attorney General and receiving no objection within 60 days. [Footnote 3] While the Attorney General had Act 932 under review, several suits were filed in the United States District Court for the District of South Carolina challenging that Act as violative of the Fourteenth and Fifteenth Amendments and seeking to enjoin its enforcement until preclearance had been obtained under § 5. The cases were consolidated, and a three-judge District Court was convened.On March 6, 1972, the Attorney General interposed an objection to Act 932. [Footnote 4] Although the South Carolina District Court as aware of this objection -- an objection that, standing Page 432 U. S. 496 alone, would have justified an injunction against enforcement of the Act -- the court proceeded to address the constitutional validity of the reapportionment plan. [Footnote 5] That court rejected the Fifteenth Amendment claim for lack of evidence that Act 932 was racially motivated, but held that the Act violated the Fourteenth Amendment due to malapportionment. The court retained jurisdiction and allowed South Carolina 30 days to enact an acceptable substitute reapportionment plan. Twiggs v. West, Civ. No. 71-1106 (SC, Apr. 7, 1972).On May 6, 1972, a new senate reapportionment plan was enacted into law as § 2 of Act 1205. [Footnote 6] This new plan was filed with the District Court, and it was submitted to the Attorney General on May 12 for preclearance review. On May 23, the District Court found the plan constitutional. [Footnote 7] By letter dated Page 432 U. S. 497 June 30, the Attorney General notified South Carolina that he would not interpose an objection to the new plan because he felt "constrained to defer to the . . . determination of the three-judge District Court" in Twiggs v. West, supra. [Footnote 8] App. 48. Thus, as of June 30, 1972, § 2 of Act 1205 had been declared constitutional by a three-judge District Court, and the Attorney General had declined to interpose an objection under § 5 of the Voting Rights Act. [Footnote 9]Not content with the Attorney General's decision to defer to the judicial determination of the three-judge District Court, several of the named plaintiffs in the consolidated Twiggs action commenced another suit in the United States District Court for the District of Columbia on August 10, 1972, in which they challenged the Attorney General's failure to object to the new senate reapportionment plan. On May 16, 1973, that court ordered the Attorney General to make "a reasoned decision in accordance with his statutory responsibility." Harper v. Kleindienst, 362 F. Supp. 742, 746 (1973). In Page 432 U. S. 498 response to this order, the Attorney General stated that, in his view, the plan violated the Fifteenth Amendment, but he reaffirmed his refusal to interpose an objection on the ground that he was constrained to defer to the ruling of the District Court in Twiggs v. West. App. to Brief for Appellants 4a. On July 19, 1973, the District of Columbia District Court directed the Attorney General to consider Act 1205 without regard to the decision in Twiggs v. West. The next day, the Attorney General interposed an objection because he was "unable to conclude that Act No. 1205 does not have the effect of abridging voting rights on account of race." App. 52.On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed. It held that the Attorney General's decision not to interpose an objection was reviewable under the circumstances of this case, [Footnote 10] and that § 5 requires him to make an independent determination on the merits of § 5 issues. Harper v. Levi, 171 U.S.App.D.C. 321, 520 F.2d 53 (1975).Armed with the decision of the Court of Appeals and the belated objection interposed by the Attorney General, two South Carolina voters filed the present suit in the United States District Court for the District of South Carolina as a class action under § 5 of the Voting Rights Act. See Allen v. State Bd. of Elections, 393 U. S. 544, 393 U. S. 557-563 (1969). The plaintiffs, appellants here, sought an injunction against implementation of § 2 of Act 1205 on the ground that the Attorney General had interposed an objection and the State had not Page 432 U. S. 499 subsequently obtained a favorable declaratory judgment from the United States District Court for the District of Columbia. The three-judge District Court convened under § 5 dismissed the complaint. 425 F. Supp. 331 (1976). It held that the doctrine of collateral estoppel did not preclude it from considering South Carolina's contention that, notwithstanding the decision in Harper v. Levi, supra, the requirements of § 5 were satisfied when the Attorney General failed to interpose an objection within 60 days after submission to him of Act 1205. [Footnote 11] The District Court also ruled that the Administrative Procedure Act did not authorize judicial review of the Attorney General's initial determination to defer to the ruling of the three-judge District Court in Twiggs v. West. In light of these considerations, the District Court concluded that the failure of the Attorney General to interpose an objection within the applicable 60-day period left South Carolina free to implement the new senate reapportionment plan.We noted probable jurisdiction to determine the reviewability of the Attorney General's failure to interpose a timely objection under § 5 of the Voting Rights Act. 429 U.S. 997 (1976). For the reasons stated below, we affirm.IIThe ultimate issue in this case concerns the implementation of South Carolina's reapportionment plan for the State Senate. Since that plan has not been declared by the District Court for the District of Columbia to be without racially discriminatory purpose or effect, it can be implemented only if the Attorney General "has not interposed an objection" to the plan within the meaning of § 5 of the Voting Rights Act. [Footnote 12] It Page 432 U. S. 500 conceded that no objection was entered within the 60-day period. 425 F. Supp. at 333. But appellants insist that the Attorney General's nunc pro tunc objection of July 20, 1973, is effective under the Act, and thus bars implementation of the reapportionment plan. Since that objection was interposed pursuant to the District Court's order in Harper v. Kleindienst, its validity depends on whether the Harper court had jurisdiction under the Administrative Procedure Act to review the Attorney General's failure to object. [Footnote 13] The Administrative Procedure Act stipulates that the provisions of that Act authorizing judicial review apply "except to the extent that --(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." Page 432 U. S. 501 5 U.S.C. § 701(a). [Footnote 14] It is now well settled that"judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress."Abbott Laboratories v. Gardner, 387 U. S. 136, 387 U. S. 140 (1967). [Footnote 15] The reviewing court must determine whether"Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion."Barlow v. Collins, 397 U. S. 159, 397 U. S. 165 (1970).As no provision of the Voting Rights Act expressly precludes judicial review of the Attorney General's actions under § 5, it is necessary to determine "whether nonreviewability can fairly be inferred." 397 U.S. at 397 U. S. 166. See Association of Data Processing Service Orgs. v. Camp, 397 U. S. 150, 397 U. S. 157 (1970); Switchmen v. National Mediation Board, 320 U. S. 297 (1943). That inquiry must address the role played by the Attorney General within "the context of the entire legislative scheme." Abbott Laboratories v. Gardner, supra at 387 U. S. 141.The nature of the § 5 remedy, which this Court has characterized as an "unusual" and "severe" procedure, Allen v. State Bd. of Elections, 393 U. S. 544, 393 U. S. 556 (1969), strongly suggests that Congress did not intend the Attorney General's actions under that provision to be subject to judicial review. Section 5 requires covered jurisdictions to delay implementation of validly enacted state legislation until federal authorities have had an opportunity to determine whether that Page 432 U. S. 502 legislation conforms to the Constitution and to the provisions of the Voting Rights Act. See South Carolina v. Katzenbach, 383 U. S. 301, 383 U. S. 334 (1966). Section 5 establishes two alternative methods by which covered jurisdictions can comply with this severe requirement of federal preclearance review. First, a covered jurisdiction may file a declaratory judgment action in the District Court for the District of Columbia and subsequently may implement the change in voting laws if that court declares that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c (1970 ed., Supp. V). Second, a covered jurisdiction may submit a change in voting laws to the Attorney General and subsequently may enforce the change if "the Attorney General has not interposed an objection within sixty days after such submission." Ibid.According to the terms of § 5, a covered jurisdiction is in compliance pursuant to the latter alternative once it has (i) filed a complete submission with the Attorney General, and (ii) received no objection from that office within 60 days. This second method of compliance under § 5 is unlike the first in that implementation of changes in voting laws is not conditioned on an affirmative statement by the Attorney General that the change is without discriminatory purpose or effect. [Footnote 16] To the contrary, compliance with § 5 is measured solely by the absence, for whatever reason, of a timely objection on the part of the Attorney General. [Footnote 17] And this Court Page 432 U. S. 503 has recognized that,"[o]nce the State has successfully complied with the § 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality; there is no further remedy provided by § 5."Allen v. State Bd. of Elections, supra at 393 U. S. 549-550.Although there is no legislative history bearing directly on the issue of reviewability of the Attorney General's actions under § 5, the legislative materials do indicate a desire to provide a speedy alternative method of compliance to covered States. Section 8 of the original bill provided for preclearance review only by means of a declaratory judgment action in the District Court for the District of Columbia. Hearings on S. 1564 before the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965) (hereafter Senate Hearings). Justified concerns arose that the time required to pursue such litigation would unduly delay the implementation of validly enacted, nondiscriminatory state legislation. Cognizant of the problem, Attorney General Katzenbach suggested that the declaratory judgment procedure "could be improved by applying it only to those laws which the Attorney General takes exception to within a given period of time." Senate Hearings 237. The legislation was changed to incorporate this suggestion. [Footnote 18] Page 432 U. S. 504In light of the potential severity of the § 5 remedy, the statutory language, and the legislative history, we think it clear that Congress intended to provide covered jurisdictions with an expeditious alternative to declaratory judgment actions. The congressional intent is plain: the extraordinary remedy of postponing the implementation of validly enacted state legislation was to come to an end when the Attorney General failed to interpose a timely objection based on a complete submission. [Footnote 19] Although there was to be no bar to subsequent constitutional challenges to the implemented legislation, there also was to be "no dragging out" of the extraordinary federal remedy beyond the period specified in the statute. Switchmen v. National Mediation Board, 320 U.S. at 320 U. S. 305. Since judicial review of the Attorney General's Page 432 U. S. 505 actions would.unavoidably extend this period, it is necessarily precluded. [Footnote 20]Our conclusions in this respect are reinforced by the fact that the Attorney General's failure to object is not conclusive with respect to the constitutionality of the submitted state legislation. [Footnote 21] The statute expressly provides that neither"an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object . . . shall bar a subsequent action to enjoin enforcement"of the newly enacted legislation or voting regulation. Cf. Dunlop v. Bachowski, 421 U. S. 560, 421 U. S. 569-570 (1975). It is true that it was the perceived inadequacy of private suits under the Fifteenth Amendment that prompted Congress to pass the Voting Rights Act. Allen v. State Bd. of Elections, 393 U.S. at 393 U. S. 556 n. 21; South Carolina v. Katzenbach, Page 432 U. S. 506 383 U.S. at 383 U. S. 309. But it does not follow that Congress did not intend to preclude judicial review of Attorney General actions under § 5. [Footnote 22] The initial alternative requirement of submission to the Attorney General substantially reduces the likelihood that a discriminatory enactment will escape detection by federal authorities. [Footnote 23] Where the discriminatory character Page 432 U. S. 507 of an enactment is not detected upon review by the Attorney General, it can be challenged in traditional constitutional litigation. But it cannot be questioned in a suit seeking judicial review of the Attorney General's exercise of discretion under § 5, or his failure to object within the statutory period. [Footnote 24]IIIFor these reasons, we hold that the objection interposed by the Attorney General to § 2 of Act 1205 on July 20, 1973, nunc pro tunc, is invalid. [Footnote 25] South Carolina is therefore free to implement its reapportionment plan for the State Senate.Affirmed

U.S. Supreme CourtMorris v. Gressette, 432 U.S. 491 (1977)Morris v. GressetteNo. 75-1583Argued April 18-19, 1977Decided June 20, 1977432 U.S. 491SyllabusSection 5 of the Voting Rights Act of 1965 establishes two alternative methods by which States subject to the Act can obtain federal preclearance review of a change in their voting laws: (1) the State may file a declaratory judgment action in the District Court for the District of Columbia and subsequently may implement such change if that court declares that the change has no racially discriminatory purpose or effect; or (2) the State may submit the change to the Attorney General and subsequently may enforce the change if the Attorney General has not interposed an objection within 60 days. A plan reapportioning the South Carolina Senate, enacted into law on May 6, 1972, and filed with the District Court for the District of South Carolina, which had invalidated a previous plan in a consolidated action challenging its constitutionality, was submitted to the Attorney General on May 12 for preclearance review under § 5. On May 23, the District Court found the new plan constitutional, and on June 30, the Attorney General notified South Carolina that he would interpose no objection, but would defer to the court's determination. Thereafter, another suit was brought in the District Court for the District of Columbia, challenging the Attorney General's failure to object to the new plan, and, in response to that court's order of May 16, 1973, to make a reasoned determination as to the constitutionality of the new plan, the Attorney General stated that, in his view, it was unconstitutional, but that he still refused to interpose an objection in deference to the ruling of the District Court for the District of South Carolina. However, on July 19, 1973, the District Court for the District of Columbia directed the Attorney General to consider the new plan without regard to the other District Court's decision, and, the next day, the Attorney General interposed an objection to the plan. The Court of Appeals for the District of Columbia Circuit affirmed, holding that the Attorney General's initial failure to interpose an objection was reviewable, and that § 5 required him to make an independent determination on the merits of the § 5 issues. The present suit was then filed by appellant South Carolina voters in the District Court for the District of South Carolina, seeking to enjoin implementation Page 432 U. S. 492 of the new plan on the ground that the Attorney General had interposed an objection and the State had not subsequently obtained a favorable declaratory judgment from the District Court for the District of Columbia. A three-judge court dismissed the complaint, holding that the collateral estoppel doctrine did not preclude it from considering the State's contention that, notwithstanding the Court of Appeals' decision in the previous action, the requirements of § 5 were satisfied when the Attorney General failed to interpose an objection within 60 days after submission of the new plan to him, and that the Administrative Procedure Act did not authorize judicial review of the Attorney General's initial determination to defer to the ruling that the new plan was constitutional, and that therefore the Attorney General's failure to interpose a timely objection left South Carolina free to implement the new plan.Held: The objection interposed by the Attorney General to the new plan on July 20, 1973, nunc pro tunc, is invalid, and therefore South Carolina is free to implement such plan. Pp. 432 U. S. 499-507.(a) The nature of the § 5 remedy, which has been characterized as an "unusual" and "severe" procedure, strongly suggests that Congress did not intend the Attorney General's actions under that provision to be subject to judicial review. Unlike the first alternative method of obtaining a declaratory judgment, § 5 does not condition implementation of changes in voting laws under the second method of compliance on an affirmative statement by the Attorney General that the change is without racially discriminatory purpose or effect, but, to the contrary, compliance with § 5 under this second method is measured solely by the absence, for whatever reason, of a timely objection on the Attorney General's part. Pp. 432 U. S. 501-503.(b) In light of the potential severity of the § 5 remedy, the statutory language, and the legislative history, it is clear that Congress intended to provide covered jurisdictions with an expeditious alternative to declaratory judgment actions by providing submission to the Attorney General as such an alternative. Since judicial review of the Attorney General's action would unavoidably extend the period specified in the statute, it is necessarily precluded. Pp. 432 U. S. 504-505.(c) Where the discriminatory character of an enactment is not detected upon review by the Attorney General, it can be challenged in traditional constitutional litigation, but it cannot be questioned in a suit seeking judicial review of the Attorney General's exercise of discretion under § 5, or his failure to object within the statutory period. Pp. 432 U. S. 505-507.425 F. Supp. 331, affirmed. Page 432 U. S. 493POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 432 U. S. 507. BLACKMUN, J., filed a dissenting opinion, post, p. 432 U. S. 517.

1967_52

MR. JUSTICE WHITE delivered the opinion of the Court.Petitioner was convicted in an Illinois state court of criminal contempt and sentenced to imprisonment for 24 months for willfully petitioning to admit to probate a will falsely prepared and executed after the death of the putative testator. Petitioner made a timely demand for jury trial which was refused. Since, in Duncan v. Louisiana, ante, p. 391 U. S. 145, the Constitution was held to guarantee the right to jury trial in serious criminal cases in state courts, we must now decide whether it also guarantees the right to jury trial for a criminal contempt punished by a two-year prison term.IWhether federal and state courts may try criminal contempt cases without a jury has been a recurring question in this Court. Article III, § 2, of the Constitution provides that "[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury. . . ." The Sixth Amendment states that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . ." The Fifth and Fourteenth Amendments forbid both the Federal Government and the States from depriving any person of "life, liberty, or property, without due process of law." Notwithstanding these provisions, until United States v. Barnett, 376 U. S. 681, rehearing denied, 377 U.S. 973 (1964), the Court consistently upheld the constitutional power of the state and federal courts to punish Page 391 U. S. 196 any criminal contempt without a jury trial. Eilenbecker v. District Court of Plymouth County, 134 U. S. 31, 134 U. S. 36-39 (1890); I.C.C. v. Brimson, 154 U. S. 447, 154 U. S. 488-489 (1894); In re Debs, 158 U. S. 564, 158 U. S. 594-596 (1895); Gompers v. United States, 233 U. S. 604, 233 U. S. 610-611 (1914); Green v. United States, 356 U. S. 165, 356 U. S. 183-187 (1958). [Footnote 1] These cases construed the Due Process Clause and the otherwise inclusive language of Article III and the Sixth Amendment as permitting summary trials in contempt cases because, at common law, contempt was tried without a jury and because the power of courts to punish for contempt without the intervention of any other agency was considered essential to the proper and effective functioning of the courts and to the administration of Justice.United States v. Barnett, supra, signaled a possible change of view. The Court of Appeals for the Fifth Circuit certified to this Court the question whether there was a right to jury trial in an impending contempt proceeding. Following prior cases, a five-man majority held that there was no constitutional right to jury trial in all contempt cases. Criminal contempt, intrinsically and aside from the particular penalty imposed, was not Page 391 U. S. 197 deemed a serious offense requiring the protection of the constitutional guarantees of the right to jury trial. However, the Court put aside, as not raised in the certification or firmly settled by prior cases, the issue whether a severe punishment would itself trigger the right to jury trial, and indicated, without explication, that some members of the Court were of the view that the Constitution limited the punishment which could be imposed where the contempt was tried without a jury. 376 U.S. at 376 U. S. 694-695 and n. 12.Two years later, in Cheff v. Schnackenberg, 384 U. S. 373 (1966), which involved a prison term of six months for contempt of a federal court, the Court rejected the claim that the Constitution guaranteed a right to jury trial in all criminal contempt cases. Contempt did not "of itself" warrant treatment as other than a petty offense; the six months' punishment imposed permitted dealing with the case as a prosecution for "a petty offense, which, under our decisions, does not require a jury trial." 384 U. S. 373, 384 U. S. 379-380 (1966). See Callan v. Wilson, 127 U. S. 540 (1888); Schick v. United States, 195 U. S. 65 (1904); District of Columbia v. Clawans, 300 U. S. 617 (1937). It was not necessary in Cheff to consider whether the constitutional guarantees of the right to jury trial applied to a prosecution for a serious contempt. Now, however, because of our holding in Duncan v. Louisiana, supra, that the right to jury trial extends to the States, and, because of Bloom's demand for a jury in this case, we must once again confront the broad rule that all criminal contempts can be constitutionally tried without a jury. Barnett presaged a reexamination of this doctrine at some later time; that time has now arrived.In proceeding with this task, we are acutely aware of the responsibility we assume in entertaining challenges to a constitutional principle which is firmly entrenched Page 391 U. S. 198 and which has behind it weighty and ancient authority. Our deliberations have convinced us, however, that serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution, now binding on the States, and that the traditional rule is constitutionally infirm insofar as it permits other than petty contempts to be tried without honoring a demand for a jury trial. We accept the judgment of Barnett and Cheff that criminal contempt is a petty offense unless the punishment makes it a serious one; but, in our view, dispensing with the jury in the trial of contempts subjected to severe punishment represents an unacceptable construction of the Constitution, "an unconstitutional assumption of powers by the [courts] which no lapse of time or respectable array of opinion should make us hesitate to correct." Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U. S. 518, 276 U. S. 533 (1928) (Holmes, J., dissenting). The rule of our prior cases has strong, though sharply challenged, historical support; [Footnote 2] but neither this circumstance nor the considerations Page 391 U. S. 199 of necessity and efficiency normally offered in defense of the established rule justify denying a jury trial in serious criminal contempt cases. The Constitution Page 391 U. S. 200 guarantees the right to jury trial in state court prosecutions for contempt, just as it does for other crimes. Page 391 U. S. 201II.Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes:"These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech."Gompers v. United States, 233 U. S. 604, 233 U. S. 610 (1914). [Footnote 3]Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case, convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical -- protection of the institutions of our government and enforcement of their mandates.Given that criminal contempt is a crime in every fundamental respect, the question is whether it is a crime to which the jury trial provisions of the Constitution Page 391 U. S. 202 apply. We hold that it is, primarily because, in terms of those considerations which make the right to jury trial fundamental in criminal cases, there is no substantial difference between serious contempts and other serious crimes. Indeed, in contempt cases, an even more compelling argument can be made for providing a right to jury trial as a protection against the arbitrary exercise of official power. Contemptuous conduct, though a public wrong, often strikes at the most vulnerable and human qualities of a judge's temperament. Even when the contempt is not a direct insult to the court or the judge, it frequently represents a rejection of judicial authority or an interference with the judicial process or with the duties of officers of the court.The court has long recognized the potential for abuse in exercising the summary power to imprison for contempt -- it is an "arbitrary" power which is "liable to abuse." Ex parte Terry, 128 U. S. 289, 128 U. S. 313 (1888). "[I]ts exercise is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions." Coke v. United States, 267 U. S. 517, 267 U. S. 539 (1925). [Footnote 4]These apprehensions about the unbridled power to punish summarily for contempt are reflected in the march of events in both Congress and the courts since our Constitution was adopted. The federal courts were established by the Judiciary Act of 1789; § 17 of the Act provided that those courts"shall have power to . . . punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same. . . ."1 Stat. 83. See Anderson v. Page 391 U. S. 203 Dunn, 6 Wheat. 204, 227-228 (1821). This open-ended authority to deal with contempt, limited only as to mode of punishment, proved unsatisfactory to Congress. Abuses under the 1789 Act culminated in the unsuccessful impeachment proceedings against James Peck, a federal district judge who had imprisoned and disbarred one Lawless for publishing a criticism of one of Peck's opinions in a case which was on appeal. The result was drastic curtailment of the contempt power in the Act of 1831, 4 Stat. 487. Ex parte Robinson, 19 Wall. 505, 86 U. S. 510-511 (1874); In re Savin, 131 U. S. 267, 131 U. S. 275-276 (1889). That Act limited the contempt power to misbehavior in the presence of the court or so near thereto as to obstruct justice; misbehavior of court officers in their official transactions, and disobedience of or resistance to the lawful writ, process, order, or decree of the court. [Footnote 5] This major revision of the contempt power in the federal sphere, which "narrowly confined" and "substantially curtailed" the authority to punish contempt summarily, Nye v. United States, 313 U. S. 33, 313 U. S. 47-48 (1941), has continued to the present day as the basis for the general Page 391 U. S. 204 power to punish criminal contempt. [Footnote 6] 62 Stat. 701, 18 U.S.C. § 401.The courts also proved sensitive to the potential for abuse which resides in the summary power to punish contempt. Before the 19th century was out, a distinction had been carefully drawn between contempts occurring within the view of the court, for which a hearing and formal presentation of evidence were dispensed with, and all other contempts where more normal adversary procedures were required. Ex parte Terry, 128 U. S. 289 (1888); In re Savin, 131 U. S. 267 (1889). Later, Page 391 U. S. 205 the Court could say"it is certain that, in proceedings for criminal contempt, the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself."Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 221 U. S. 444 (1911). See Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U. S. 42, 266 U. S. 66 (1924). Chief Justice Taft speaking for a unanimous Court in Cooke v. United States, 267 U. S. 517, 267 U. S. 537 (1925), said:"Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed."Cf. Blackmer v. United States, 284 U. S. 421, 284 U. S. 440 (1932). It has also been recognized that the defendant in criminal contempt proceedings is entitled to a public trial before an unbiased judge, In re Oliver, 333 U. S. 257 (1948); Offutt v. United States, 348 U. S. 11 (1954); see Ungar v. Sarafite, 376 U. S. 575 (1964); but cf. Levine v. United States, 362 U. S. 610 (1960). [Footnote 7] In the federal system, many of the procedural protections available to criminal contemnors are set forth in Fed.Rule Crim.Proc. 42.Judicial concern has not been limited to procedure. In Toledo Newspaper Co. v. United States, 247 U.S. Page 391 U. S. 206 402 (1918), the Court endorsed a broad construction of the language of the Act of 1831 permitting summary trial of contempts "so near [to the court] as to obstruct the administration of justice." It required only that the conduct have a "tendency to prevent and obstruct the discharge of judicial duty. . . ." Id. at 247 U. S. 419. See Craig v. Hecht, 263 U. S. 255, 263 U. S. 277 (1923). This view proved aberrational, and was overruled in Nye v. United States, 313 U. S. 33, 313 U. S. 47-52 (1941), which narrowly limited the conduct proscribed by the 1831 Act to "misbehavior in the vicinity of the court disrupting to quiet and order or actually interrupting the court in the conduct of its business." Id. at 313 U. S. 52. Cf. Toledo Newspaper Co. v. United States, supra, at 247 U. S. 422 (Holmes, J., dissenting). The congressional purpose to fence in the power of the federal courts to punish contempt summarily was further implemented in Cammer v. United States, 350 U. S. 399, 350 U. S. 407-408 (1956). A lawyer, the Court held, "is not the kind of officer' who can be summarily tried for contempt under 18 U.S.C. § 401(2)." In another development, the First Amendment was invoked to ban punishment for a broad category of arguably contemptuous out-of-court conduct. Bridges v. California, 314 U. S. 252 (1941); Pennekamp v. Florida, 328 U. S. 331 (1946); Craig v. Harney, 331 U. S. 367 (1947). Finally, over the years in the federal system, there has been a recurring necessity to set aside punishments for criminal contempt as either unauthorized by statute or too harsh. E.g., 86 U. S. 19 Wall. 505 (1874); United States v. United Mine Workers, 330 U. S. 258 (1947); Yates v. United States, 355 U. S. 66 (1957). [Footnote 8] Page 391 U. S. 207This course of events demonstrates the unwisdom of vesting the judiciary with completely untrammeled power to punish contempt, and makes clear the need for effective safeguards against that power's abuse. Prosecutions for contempt play a significant role in the proper functioning of our judicial system; but despite the important values which the contempt power protects, courts and legislatures have gradually eroded the power of judges to try contempts of their own authority. In modern times, procedures in criminal contempt cases have come to mirror those used in ordinary criminal cases. Our experience teaches that convictions for criminal contempt, not infrequently resulting in extremely serious penalties, see United States v. Barnett, 376 U. S. 681, 376 U. S. 751 (Goldberg, J., dissenting), are indistinguishable from those obtained under ordinary criminal Page 391 U. S. 208 laws. If the right to jury trial is a fundamental matter in other criminal cases, which we think it is, it must also be extended to criminal contempt cases.IIINor are there compelling reasons for a contrary result. As we read the earlier cases in this Court upholding the power to try contempts without a jury, it was not doubted that the summary power was subject to abuse or that the right to jury trial would be an effective check. Rather, it seems to have been thought that summary power was necessary to preserve the dignity, independence, and effectiveness of the judicial process --"To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency."In re Debs, 158 U. S. 564, 158 U. S. 595 (1895). It is at this point that we do not agree: in our judgment, when serious punishment for contempt is contemplated, rejecting a demand for jury trial cannot be squared with the Constitution or justified by considerations of efficiency or the desirability of vindicating the authority of the court.We cannot say that the need to further respect for judges and courts is entitled to more consideration than the interest of the individual not to be subjected to serious criminal punishment without the benefit of all the procedural protections worked out carefully over the years and deemed fundamental to our system of justice. Genuine respect, which alone can lend true dignity to our judicial establishment, will be engendered not by the fear of unlimited authority, but by the firm administration of the law through those institutionalized procedures which have been worked out over the centuries.We place little credence in the notion that the independence of the judiciary hangs on the power to try contempts summarily, and are not persuaded that the Page 391 U. S. 209 additional time and expense possibly involved in submitting serious contempts to juries will seriously handicap the effective functioning of the courts. We do not deny that serious punishment must sometimes be imposed for contempt, but we reject the contention that such punishment must be imposed without the right to jury trial. The goals of dispatch, economy, and efficiency are important, but they are amply served by preserving the power to commit for civil contempt and by recognizing that many contempts are not serious crimes, but petty offenses not within the jury trial provisions of the Constitution. When a serious contempt is at issue, considerations of efficiency must give way to the more fundamental interest of ensuring the even-handed exercise of judicial power. In isolated instances, recalcitrant or irrational juries may acquit, rather than apply the law to the case before them. Our system has wrestled with this problem for hundreds of years, however, and important safeguards have been devised to minimize miscarriages of justice through the malfunctioning of the jury system. Perhaps to some extent we sacrifice efficiency, expedition, and economy, but the choice in favor of jury trial has been made, and retained, in the Constitution. We see no sound reason in logic or policy not to apply it in the area of criminal contempt.Some special mention of contempts in the presence of the judge is warranted. Rule 42(a) of the Federal Rules of Criminal Procedure provides that"[a] criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt, and that it was committed in the actual presence of the court."This rule reflects the common law rule which is widely, if not uniformly, followed in the States. Although Rule 42(a) is based in part on the premise that it is not necessary specially to present the facts of a contempt which occurred in the very presence of the Page 391 U. S. 210 judge, it also rests on the need to maintain order and a deliberative atmosphere in the courtroom. The power of a judge to quell disturbance cannot attend upon the impaneling of a jury. There is, therefore, a strong temptation to make exception to the rule we establish today for disorders in the courtroom. We are convinced, however, that no such special rule is needed. It is old law that the guarantees of jury trial found in Article III and the Sixth Amendment do not apply to petty offenses. Only today we have reaffirmed that position. Duncan v. Louisiana, supra at 391 U. S. 159-162. By deciding to treat criminal contempt like other crimes insofar as the right to jury trial is concerned, we similarly place it under the rule that petty crimes need not be tried to a jury.IVPetitioner Bloom was held in contempt of court for filing a spurious will for probate. At his trial it was established that the putative testator died on July 6, 1964, and that, after that date Pauline Owens, a practical nurse for the decedent, engaged Bloom to draw and execute a will in the decedent's name. The will was dated June 21, 1964. Bloom knew the will was false when he presented it for admission in the Probate Division of the Circuit Court of Cook County. The State's Attorney of that county filed a complaint charging Bloom with contempt of court. At trial petitioner's timely motion for a jury trial was denied. Petitioner was found guilty of criminal contempt and sentenced to imprisonment for 24 months. On direct appeal to the Illinois Supreme Court, his conviction was affirmed. That court held that neither state law nor the Federal Constitution provided a right to jury trial in criminal contempt proceedings. 35 Ill. 2d 255, 220 N.E.2d 475 (1966). We granted certiorari, 386 U.S. 1003 (1967).Petitioner Bloom contends that the conduct for which he was convicted of criminal contempt constituted the Page 391 U. S. 211 crime of forgery under Ill.Rev.Stat., c. 38, § 17-3. Defendants tried under that statute enjoy a right to jury trial and face a possible sentence of one to 14 years, a fine not to exceed $1,000, or both. Petitioner was not tried under this statute, but rather was convicted of criminal contempt. Under Illinois law, no maximum punishment is provided for convictions for criminal contempt. People v. Stollar, 31 Ill. 2d 154, 201 N.E.2d 97 (1964). In Duncan, we have said that we need not settle "the exact location of the line between petty offenses and serious crimes," but that "a crime punishable by two years in prison is . . . a serious crime, and not a petty offense." Supra at 391 U. S. 161, 391 U. S. 162. Bloom was sentenced to imprisonment for two years. Our analysis of Barnett, supra, and Cheff v. Schnackenberg, 384 U. S. 373, makes it clear that criminal contempt is not a crime of the sort that requires the right to jury trial regardless of the penalty involved. Under the rule in Cheff, when the legislature has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty which may be imposed, we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense. See Duncan, supra, at 391 U. S. 162, n. 35. Under this rule, it is clear that Bloom was entitled to the right to trial by jury, and it was constitutional error to deny him that right. Accordingly, we reverse and remand for proceedings not inconsistent with this opinion.Reversed

U.S. Supreme CourtBloom v. Illinois, 391 U.S. 194 (1968)Bloom v. IllinoisNo. 52Argued January 16-17, 1968Decided May 20, 1968391 U.S. 194SyllabusPetitioner was convicted in Illinois of criminal contempt and sentenced to 24 months' imprisonment for willfully petitioning to admit to probate a will falsely prepared and executed after the putative testator's death. His request for a jury trial was refused by the trial court. The Illinois Supreme Court affirmed his conviction.Held:1. In view of the holdings in United States v. Barnett, 376 U. S. 681 (1964); Cheff v. Schnackenberg, 384 U. S. 373 (1966), and Duncan v. Louisiana, ante, p. 399 U.S. 145, the broad rule that all criminal contempts can be constitutionally tried without a jury is reexamined. Pp. 399 U. S. 195-198.2. Criminal contempt is a crime in every essential respect; serious criminal contempts are so nearly like other serious crimes that they are subject to the Constitution's jury trial provisions, and only petty contempts may be tried without honoring demands for trial by jury. The progression of legislative and judicial restrictions on the unfettered power to try contempts summarily reflects this identity, and underlines the need to extend traditional protections to trials for serious contempts. Pp. 399 U. S. 201-210.3. To the extent that summary punishment for criminal contempts preserves the dignity, effectiveness and efficiency of the judicial process, those interests are outweighed by the need to provide the defendant charged with a serious criminal contempt with all the procedural protections deemed fundamental to our judicial system. The power to commit for civil contempt and to punish petty criminal contempts summarily is unaffected. Pp. 399 U. S. 208-210.4. When the legislature has not expressed a judgment as to the seriousness of an offense by fixing a maximum penalty, the best evidence as to the seriousness of the offense is the penalty actually imposed. Accordingly, petitioner, sentenced to a two-year prison term, was constitutionally entitled to a jury trial. See Duncan v. Louisiana, supra. Pp. 399 U. S. 210-211.35 Ill. 2d 255, 220 N.E.2d 475, reversed and remanded. Page 391 U. S. 195

1983_82-1994

JUSTICE MARSHALL delivered the opinion of the Court.Title 40 U.S.C. § 257, in conjunction with Rule 71A of the Federal Rules of Civil Procedure, prescribes a procedure pursuant to which the United States may appropriate privately owned land by eminent domain. The central issue in this case is whether the manner in which the value of the land is determined and paid to its owner under that procedure comports with the requirement, embodied in the Fifth Amendment, that private property not be taken for public use without just compensation.IAThe United States customarily employs one of three methods when it appropriates private land for a public purpose. The most frequently used is the so-called "straight condemnation" procedure prescribed in 40 U.S.C. § 257. Under that statute, an "officer of the Government" who is "authorized to procure real estate for the erection of a public building or for other public uses" [Footnote 1] makes an application to the Attorney General who, within 30 days, must initiate condemnation proceedings. The form of those proceedings is Page 467 U. S. 4 governed by Federal Rule of Civil Procedure 71A. [Footnote 2] In brief, Rule 71A requires the filing in federal district court of a "complaint in condemnation," identifying the property and the interest therein that the United States wishes to take, followed by a trial -- before a jury, judge, or specially appointed commission -- of the question of how much compensation is due the owner of the land. The practical effect of final judgment on the issue of just compensation is to give the Government an option to buy the property at the adjudicated price. Danforth v. United States, 308 U. S. 271, 308 U. S. 284 (1939). If the Government wishes to exercise that option, it tenders payment to the private owner, whereupon title and right to possession vest in the United States. If the Government decides not to exercise its option, it can move for dismissal of the condemnation action. Ibid.; see Fed.Rule Civ.Proc. 71A(i)(3).A more expeditious procedure is prescribed by 40 U.S.C. § 258a. [Footnote 3] That statute empowers the Government, "at any time before judgment" in a condemnation suit, to file"a declaration of taking signed by the authority empowered by law to acquire the lands [in question], declaring that said lands are thereby taken for the use of the United States."The Government is obliged, at the time of the filing, to deposit in the court, "to the use of the persons entitled thereto," an Page 467 U. S. 5 amount of money equal to the estimated value of the land. [Footnote 4] Title and right to possession thereupon vest immediately in the United States. In subsequent judicial proceedings, the exact value of the land (on the date the declaration of taking was filed) is determined, and the owner is awarded the difference (if any) between the adjudicated value of the land and the amount already received by the owner, plus interest on that difference.Finally, Congress occasionally exercises the power of eminent domain directly. For example, when Congress thinks that a tract of land that it wishes to preserve inviolate is threatened with imminent alteration, it sometimes enacts a statute appropriating the property immediately by "legislative taking" and setting up a special procedure for ascertaining, after the appropriation, the compensation due to the owners. [Footnote 5]In addition to these three statutory methods, the United States is capable of acquiring privately owned land summarily, by physically entering into possession and ousting the owner. E.g., United States v. Dickinson, 331 U. S. 745, 331 U. S. 747-749 (1947). In such a case, the owner has a right to bring an "inverse condemnation" suit to recover the value of the land on the date of the intrusion by the Government. United States v. Dow, 357 U. S. 17, 357 U. S. 21-22 (1958). [Footnote 6]The Government's selection amongst and implementation of these various methods of acquiring property is governed, Page 467 U. S. 6 to some extent, by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601 et seq. That statute enjoins federal agencies, inter alia, to attempt to acquire property by negotiation rather than condemnation, and whenever possible not to take land by physical appropriation. §§ 4651(1), (4), (8). In addition, the statute requires a court with jurisdiction over a condemnation action that is dismissed or abandoned by the Government to award the landowner an amount that will reimburse him for "his reasonable costs, disbursements, and expenses" incurred in contesting the suit. § 4654(a). [Footnote 7] The statute does not, however, regulate decisions by the Government whether to employ the "straight condemnation" procedure prescribed in § 257 or the "declaration of taking" procedure embodied in § 258a.BPetitioner, a manufacturer of forest products, owns substantial tracts of timberland in Texas. This case arises out of a protracted effort by the United States to appropriate 2,175.86 acres of that land.In the mid-1960's, several studies were made of the desirability of establishing a national park or preserve to protect an area of relatively untrammeled wilderness in eastern Texas. One of those studies, conducted in 1967 by the National Park Service, recommended the creation of a 35,500-acre Big Thicket National Park. The Texas Forestry Association, of which petitioner is a member, endorsed that proposal and declared a voluntary moratorium on logging in the designated area. Since 1967, petitioner has observed that moratorium and has not cut any trees on its property lying within the area demarked by the Park Service. [Footnote 8] Page 467 U. S. 7After seven years of desultory consideration of the matter, Congress rejected the Park Service proposal and enacted legislation creating a much larger Big Thicket National Preserve. Act of Oct. 11, 1974, Pub.L. 93-439, 88 Stat. 1254, 16 U.S.C. § 698 et seq. The statute directed the Secretary of the Interior to acquire the land within the boundaries of the Preserve. 16 U.S.C. § 698(c). The Senate Report made clear that, though the Secretary had the authority to acquire individual tracts by declaration of taking, pursuant to 40 U.S.C. § 258a, such a peremptory procedure should be employed only when necessary to protect a parcel from destruction. S.Rep. No. 93-875, p. 5 (1974). It was understood that, in the absence of such an emergency, the Secretary would purchase the land using the straight condemnation method prescribed in 40 U.S.C. § 257. [Footnote 9]The Government initially attempted to acquire the acreage owned by petitioner through a negotiated purchase. On August 21, 1978, after those negotiations had broken down, the United States filed a complaint in condemnation in the District Court for the Eastern District of Texas. Shortly thereafter, the Government filed a notice of lis pendens, notifying the public of the institution of the condemnation proceeding. The District Court referred the matter to a special commission to ascertain the compensation due petitioner.Trial before the commission began on March 6, 1979. On that day, the parties stipulated that "today is the date of taking." After hearing competing testimony pertaining to the fair market value of petitioner's land, the commission Page 467 U. S. 8 entered a report recommending compensation in the amount of $2,331,202.Both parties filed objections to the report in the District Court. On August 13, 1981, after holding a hearing to consider those objections, the District Court entered judgment awarding petitioner compensation in the amount recommended by the commission, plus interest at a rate of six percent for the period from August 21, 1978 (the date the complaint had been filed), to the date the Government deposited the adjudicated value of the land with the court. United States v. 2,175.86 Acres of Land, 520 F. Supp. 75, 81 (1981). The court justified its award of interest on the ground that the institution of condemnation proceedings had "effectively denied [petitioner] economically viable use and enjoyment of its property" and therefore had constituted a taking. Id. at 80. [Footnote 10] On March 26, 1982, the United States deposited the total amount of the judgment in the registry of the District Court. On the same date, the Government acquired title to the land.Both parties appealed. A panel of the Court of Appeals for the Fifth Circuit unanimously ruled that the commission's report failed to meet the standards enunciated in United States v. Merz, 376 U. S. 192 (1964), and remanded the case for further findings regarding the value of petitioner's land. United States v. 2,175.86 Acres of Land, 696 F.2d 351, 358 (1983). More importantly for present purposes, the Court of Appeals, by a vote of two to one, reversed the District Court's award of interest to petitioner. Reasoning that"the mere commencement of straight condemnation proceedings, where the government does not enter into possession . . . . does not constitute a taking,"id. at 355, the court held that, Page 467 U. S. 9 in this case, the date of the taking should be deemed the date on which the compensation award was paid. [Footnote 11] Consequently, no interest was due on that award. [Footnote 12]We granted certiorari to resolve a conflict in the Circuits regarding the date on which the taking, in a "straight condemnation" proceeding, should be deemed to occur and the constitutional obligation of the United States to pay interest on the adjudicated value of the property. [Footnote 13] 464 U.S. 913 (1983). We now affirm.IIThe United States has the authority to take private property for public use by eminent domain, Kohl v. United States, 91 U. S. 367, 91 U. S. 371 (1876), but is obliged by the Fifth Amendment to provide "just compensation" to the owner thereof. Page 467 U. S. 10 "Just compensation," we have held, means in most cases the fair market value of the property on the date it is appropriated. United States v. 564.54 Acres of Land, 441 U. S. 506, 441 U. S. 511-513 (1979). [Footnote 14] "Under this standard, the owner is entitled to receive what a willing buyer would pay in cash to a willing seller' at the time of the taking." Id. at 441 U. S. 511 (quoting United States v. Miller, 317 U. S. 369, 317 U. S. 374 (1943)). [Footnote 15]If the Government pays the owner before or at the time the property is taken, no interest is due on the award. See Danforth v. United States, 308 U.S. at 308 U. S. 284. Such a mode of compensation is not constitutionally mandated; the Fifth Amendment does not forbid the Government to take land and pay for it later. Sweet v. Rechel, 159 U. S. 380, 159 U. S. 400-403 (1895). But if disbursement of the award is delayed, the owner is entitled to interest thereon sufficient to ensure that he is placed in as good a position pecuniarily as he would have occupied if the payment had coincided with the appropriation. Page 467 U. S. 11 Phelps v. United States, 274 U. S. 341, 274 U. S. 344 (1927); Seaboard Air Line R. Co. v. United States, 261 U. S. 299, 261 U. S. 306 (1923). [Footnote 16]From the foregoing, it should be apparent that identification of the time a taking of a tract of land occurs is crucial to determination of the amount of compensation to which the owner is constitutionally entitled. The Government contends that, in straight condemnation proceedings like that at issue here, the date of taking must be deemed the date the United States tenders payment to the owner of the land. The Government's position is amply supported by prior decisions by this Court and by indications of congressional intent derivable from the structure of the pertinent statutory scheme and the governing procedural rule.In Danforth v. United States, supra, we were called upon to determine the date on which the Government, in an exercise of its eminent domain power under the Flood Control Act of 1928, ch. 569, 45 Stat. 534, as amended, 33 U.S.C. § 702a et seq., appropriated the petitioner's property. We held that,"[u]nless a taking has occurred previously in actuality or by a statutory provision . . . , we are of the view that the taking in a condemnation suit under this statute takes place upon the payment of the money award by the condemnor."308 U.S. at 308 U. S. 284. [Footnote 17] In response to the contention Page 467 U. S. 12 that such a procedure was unfair, we observed, "[t]he owner is protected by the rule that title does not pass until compensation has been ascertained and paid. . . .'" Id. at 308 U. S. 284-285 (quoting Albert Hanson Lumber Co. v. United States, 261 U. S. 581, 261 U. S. 587 (1923)).That all straight condemnation proceedings under § 257 should operate in the fashion described in Danforth is strongly suggested by the structure of Rule 71A, which now governs the administration of the statute. Rule 71A(i) permits the United States to dismiss a condemnation suit at any time before "compensation has been determined and paid," unless the Government previously has "acquired the title or a lesser interest . . . or taken possession." [Footnote 18] The Government's capacity to withdraw from the proceeding in this fashion would be difficult to explain if a taking were effectuated prior to tendering of payment.Finally, Congress' understanding that a taking does not occur until the termination of condemnation proceedings brought under § 257 is reflected in its adoption of § 258a for the purpose of affording the Government the option of peremptorily appropriating land prior to final judgment, thereby permitting immediate occupancy and improvement of the property. [Footnote 19] Such an option would have been superfluous if, as Page 467 U. S. 13 petitioner contends, a taking occurred upon the filing of the complaint in a § 257 suit. [Footnote 20]Petitioner's principal objection to the position advocated by the Government is that such a reading of § 257 and Rule 71A is precluded by the Fifth Amendment. Petitioner contends that, at least when the subject of a straight condemnation proceeding is unimproved land, the owner is effectively deprived of all of the significant interests associated with ownership long before the Government tenders payment. The filing of a complaint in condemnation and a notice of lis pendens, petitioner contends, has the effect of preventing the owner of unimproved land thereafter from making any profitable use of it, or of selling it to another private party. At the same time, the owner remains liable for property taxes. [Footnote 21] Such a thoroughgoing abrogation of the owner's rights, petitioner submits, surely constitutes a taking as soon as the abrogation is effective, regardless of when the land is officially appropriated under the terms of the statute.If petitioner's depiction of the impairment of its beneficial interests during the pendency of the condemnation suit were Page 467 U. S. 14 accurate, we would find its constitutional argument compelling. We have frequently recognized that a radical curtailment of a landowner's freedom to make use of or ability to derive income from his land may give rise to a taking within the meaning of the Fifth Amendment, even if the Government has not physically intruded upon the premises or acquired a legal interest in the property. Thus, we have acknowledged that a taking would be effected by a zoning ordinance that deprived "an owner [of] economically viable use of his land." Agins v. Tiburon, 447 U. S. 255, 447 U. S. 260 (1980). And we have suggested that, under some circumstances, a land use regulation that severely interfered with an owner's "distinct investment-backed expectations" might precipitate a taking. Penn Central Transportation Co. v. New York City, 438 U. S. 104, 438 U. S. 124 (1978). The principle that underlies this doctrine is that, while most burdens consequent upon government action undertaken in the public interest must be borne by individual landowners as concomitants of "the advantage of living and doing business in a civilized community,'" [Footnote 22] some are so substantial and unforeseeable, and can so easily be identified and redistributed, that "justice and fairness" require that they be borne by the public as a whole. [Footnote 23] These considerations are as applicable to the problem of determining when in a condemnation proceeding the taking occurs as they are to the problem of ascertaining whether a taking has been effected by a putative exercise of the police power.However, we do not find, prior to the payment of the condemnation award in this case, an interference with petitioner's Page 467 U. S. 15 property interests severe enough to give rise to a taking under the foregoing theory. Until title passed to the United States, petitioner was free to make whatever use it pleased of its property. The Government never forbade petitioner to cut the trees on the land or to develop the tract in some other way. Indeed, petitioner is unable to point to any statutory provision that would have authorized the Government to restrict petitioner's usage of the property prior to payment of the award. [Footnote 24]Nor did the Government abridge petitioner's right to sell the land if it wished. It is certainly possible, as petitioner contends, that the initiation of condemnation proceedings, publicized by the filing of a notice of lis pendens, reduced the price that the land would have fetched, but impairment of the market value of real property incident to otherwise legitimate government action ordinarily does not result in a taking. See, e.g., Agins v. Tiburon, supra, at 447 U. S. 263, n. 9; Danforth v. United States, 308 U.S. at 308 U. S. 285; Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). At least in the absence of an interference with an owner's legal right to dispose of his land, [Footnote 25] even a substantial reduction of the attractiveness of the property to potential purchasers does not entitle the owner to compensation under the Fifth Amendment.It is true that any effort by petitioner to develop the land probably would have prompted the Government to exercise its authority, under 40 U.S.C. § 258a, to file a declaration of Page 467 U. S. 16 taking and thereby peremptorily to appropriate the tract in order to protect it from alteration. But the likelihood that the United States would have responded in that fashion to an attempt by petitioner to make productive use of the land weakens, rather than strengthens, petitioner's position, because it suggests that petitioner had the option, at any time, to precipitate an immediate taking of the land and to obtain compensation therefor as of that date merely by informing the Government of its intention to cut down the trees.We conclude, in sum, that petitioner has failed to demonstrate that its interests were impaired in any constitutionally significant way before the Government tendered payment and acquired title in the usual course. [Footnote 26] Accordingly, we approve the finding of the Court of Appeals that the taking of petitioner's land occurred on March 26, 1982. Because the award was paid on that date, no interest was due thereon.IIIThe foregoing conclusion does not dispose of this case. We still must determine whether the award itself satisfied the strictures of the Fifth Amendment. As indicated above, petitioner is constitutionally entitled to the fair market value of its property on the date of the taking. See supra at 10. Petitioner points out that $2,331,202 represents the commission's best estimate of the value of the land on March 6, 1979. To the extent that that figure is less than the value of the land on March 26, 1982, the date of the taking, petitioner contends, it has been denied just compensation.The Government attempts to meet this objection by emphasizing the pragmatic constraints on determination of the value of real property. The Government contends that it is imperative that the trier of fact in a condemnation action be given a fixed date as of which the value of the land is to be assessed. At the time of trial, no one knows when the Page 467 U. S. 17 United States will exercise its option to purchase the property, so adoption of the date of payment as the date of valuation is infeasible. Moreover, prediction of the value of land at a future time is notoriously difficult. Under these circumstances, courts and commissions understandably have adopted the convention of using the date of the commencement of the trial as the date of the valuation.The Government's argument provides a plausible explanation for the valuation procedure used in this case and other cases, but it does not meet petitioner's constitutional claim. However reasonable it may be to designate the date of trial as the date of valuation, if the result of that approach is to provide the owner substantially less than the fair market value of his property on the date the United States tenders payment, it violates the Fifth Amendment.We are left with the problem of prescribing a solution to this difficulty. Petitioner suggests that we mandate an award of interest, at least for the period from the date of valuation to the date of the taking, as a rough proxy for the increase in the value of the land during that period. We decline the invitation. Change in the market value of particular tracts of land over time bears only a tenuous relationship to the market rate of interest. Some parcels appreciate at rates far in excess of the interest rate; others decline in value. [Footnote 27] Thus, to require the Government to pay interest on the basis proposed by petitioner would only sometimes improve the fit between the value of condemned land on the date of its appropriation and the amount paid to the owner of such land.Solution of the problem highlighted by petitioner requires not a rule compelling payment of interest by the Government, but rather a procedure for modifying a condemnation Page 467 U. S. 18 award when there is a substantial delay between the date of valuation and the date the judgment is paid, during which time the value of the land changes materially. In the case before us, such a procedure is readily available. In view of the inadequacy of the commission's explanation for its valuation of petitioner's land, the Court of Appeals remanded for reconsideration of the value of the property. On remand, the District Court can easily adduce evidence pertaining to alteration in the value of petitioner's tract between March 6, 1979, and March 26, 1982. [Footnote 28] In our view, such a reassessment is both necessary and sufficient to provide petitioner just compensation.In other cases, such an option may not be available. However, the Federal Rules of Civil Procedure contain a procedural device that could do tolerable service in this cause. Rule 60(b) empowers a federal court, upon motion of a party, to withdraw or amend a final order for "any . . . reason justifying relief from the operation of the judgment." This provision seems to us expansive enough to encompass a motion, by the owner of condemned land, to amend a condemnation award. The evidence adduced in consideration of such a motion would be very limited. The parties would not be permitted to question the adjudicated value of the tract as of the date of its original valuation; they would be limited to the presentation of evidence and arguments on the issue of how the market value of the property altered between that date and the date on which the judgment was paid by the Government. So focused, the consideration of such a motion would be expeditious and relatively inexpensive for the Page 467 U. S. 19 parties involved. [Footnote 29] Further refinement of this procedural option we leave to the courts called upon to administer it. [Footnote 30]IVFor the reasons set forth above, we agree with the Court of Appeals that no interest was due on the condemnation award paid to petitioner. Petitioner's meritorious contention that it is constitutionally entitled to the value of its land on the date of the taking, not on the date of the valuation, can be accommodated by allowing petitioner, on remand, to present evidence pertaining to change in the market value of the tract during the period between those two dates. On the understanding that petitioner will be afforded that opportunity, the judgment isAffirmed

U.S. Supreme CourtKirby Forest Indus. v. United States, 467 U.S. 1 (1984)Kirby Forest Industries, Inc. v. United StatesNo. 82-1994Argued February 22, 1984Decided May 21, 1984467 U.S. 1SyllabusPetitioner manufacturer of forest products owns substantial timberland in Texas. On August 21, 1978, after negotiations to acquire over 2,000 acres of this land for a national preserve had broken down, the United States filed a "straight condemnation" complaint under 40 U.S.C. § 257. Shortly thereafter, the United States filed a notice of lis pendens, notifying the public of the institution of the proceeding. The District Court referred the matter to a special commission to ascertain the compensation due petitioner. Trial before the commission began on March 6, 1979, and after hearing competing testimony as to the fair market value of the land, the commission entered a report recommending compensation in the amount of $2,331,202. The District Court entered judgment awarding petitioner compensation for that amount, plus 6% interest for the period from the date the complaint was filed to the date the Government deposited the adjudicated value of the land with the court. On March 26, 1982, the United States deposited the amount of the judgment in the District Court's registry, and, on that same date, acquired title to the land. The Court of Appeals reversed the award of interest to petitioner, holding that the date of the taking should be deemed the date on which the compensation award was paid, and that, hence, no interest was due on that award. The court also ruled that the commission inadequately explained its valuation of the land, and accordingly remanded the case to the District Court for further findings regarding the value. Page 467 U. S. 2Held:1. The taking of petitioner's land occurred on March 26, 1982, and because the award was paid on that date, no interest was due thereon. Pp. 467 U. S. 9-16.(a) That the date of taking in "straight condemnation" proceedings must be deemed the date on which the United States tenders payment to the landowner is amply supported by this Court's prior decisions and by indications of congressional intent derived from the structure of the pertinent statutory scheme and Federal Rule of Civil Procedure 71A. Rule 71A(i) permits the United States to dismiss a condemnation suit at any time before compensation has been determined and paid, unless the United States has previously acquired title or taken possession. The Government's capacity in this fashion to withdraw from the proceeding would be difficult to explain if a taking were effectuated prior to tendering of payment. And the option given to the Government in 40 U.S.C. § 258a of peremptorily appropriating land prior to final judgment would have been superfluous if a taking occurred upon the filing of a complaint in a § 257 suit. Pp. 467 U. S. 11-13.(b) Prior to payment of the condemnation award in this case, there was no interference with petitioner's property interests severe enough to give rise to a taking entitling petitioner to just compensation under the Fifth Amendment. Until title passed to the United States, petitioner was free to make whatever use of its property it pleased. The Government never forbade petitioner to cut trees on the land or develop it in some other way. Nor did the Government abridge petitioner's right to sell the land. While the initiation of condemnation proceedings, publicized by the lis pendens notice, may have reduced the selling price of the land, impairment of the market value of property incident to otherwise legitimate governmental action ordinarily does not result in a taking, and did not do so here. Pp. 467 U. S. 13-16.2. Petitioner's constitutional entitlement to the value of its land on the date of the taking can be accommodated by allowing petitioner, on remand, to present evidence pertaining to change in the market value of the property during the substantial delay between the date of valuation and the date the Government tendered payment. Other condemnees who find themselves in petitioner's position may avail themselves of Federal Rule of Civil Procedure 60(b), which empowers a district court, upon motion of a party, to withdraw or amend a final judgment for "any . . . reason justifying relief from the operation of the judgment." Pp. 467 U. S. 16-19.696 F.2d 351, affirmed.MARSHALL, J., delivered the opinion for a unanimous Court. Page 467 U. S. 3

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MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.Tried and convicted in a Federal District Court for an offense against the United States, petitioner applied for leave to appeal his conviction to the Court of Appeals in forma pauperis. His application was denied. The case presents this question: what standard is to be applied by the lower federal courts in passing upon such applications? The articulation of a usable standard has been the source of considerable recent litigation. [Footnote 1] And, while Page 369 U. S. 441 we recognize that no single word or group of words can provide a precise formula that will dispose of every case, we think it appropriate to indicate, in somewhat greater detail than in the past, the approach a Court of Appeals must take toward an indigent's application for leave to take a direct appeal from his criminal conviction in forma pauperis.Statutory provision for litigation in forma pauperis in the federal courts is made by 28 U.S.C. § 1915, authorizing "[a]ny court of the United States" to allow indigent persons to prosecute, defend or appeal suits without prepayment of costs. Before discussing our understanding of the proper manner in which a Court of Appeals is to exercise its authority to allow a criminal appeal in forma pauperis, we believe it would be helpful to indicate briefly the law applicable to criminal appeals generally. The provisions of § 1915 can be understood and applied in such cases only when read together with the other provisions of the Judicial Code and the Federal Rules governing criminal appeals.Present federal law has made an appeal from a District Court's judgment of conviction in a criminal case what is, in effect, a matter of right. [Footnote 2] That is, a defendant has a right to have his conviction reviewed by a Court of Appeals, and need not petition that court for an exercise Page 369 U. S. 442 of its discretion to allow him to bring the case before the court. The only requirements a defendant must meet for perfecting his appeal are those expressed as time limitations within which various procedural steps must be completed. First, a timely notice of appeal must be filed in the District Court to confer jurisdiction upon the Court of Appeals over the case. [Footnote 3] Subsequently, designations of the transcript, a record on appeal and briefs must be filed in the appropriate forum. [Footnote 4]The indigent defendant will generally experience no material difficulty in filing a timely notice of appeal. [Footnote 5] Page 369 U. S. 443 But thereafter he is immediately faced with court fees for docketing his appeal in the Court of Appeals and with the cost of preparing the record, including a stenographic transcript of at least portions of the trial proceedings. [Footnote 6] If he is unable to meet either or both of these expenses, he can perfect his appeal only by applying for leave to appeal in forma pauperis. The application, to be made to the District Court in which the defendant was convicted, [Footnote 7] Page 369 U. S. 444 must conform to the requirements of 28 U.S.C. § 1915(a) and include, in affidavit form, the defendant's representations of poverty, a statement of the case, and his belief that he is entitled to redress. The sole statutory language by which the District Court is guided in passing upon the application provides, "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a).What meaning should be placed on the "good faith" of which the statute speaks? In the context of a criminal appeal, we do not believe it can be read to require a District Court to determine whether the would-be appellant seeks further review of his case in subjective good faith, i.e., good faith from his subjective point of view. [Footnote 8] Such Page 369 U. S. 445 a construction would deprive the legislation of sensible meaning, there probably being no convicted defendant who would not sincerely wish a Court of Appeals to review his conviction. Further, a subjective standard might suggest that only persons who, in good conscience, could insist on their innocence are to be entitled to a review of their convictions without payment of costs. We believe this interpretation of the statute is not required by reason, nor is it consistent with the sound administration of criminal justice in the federal courts. We hold, instead, that "good faith" in this context must be judged by an objective standard. We consider a defendant's good faith in this type of case demonstrated when he seeks appellate review of any issue not frivolous. In so doing, we note that if in forma pauperis litigation is attempted for reasons that may genuinely be characterized as the litigant's "bad faith," express authority exists in 28 U.S.C. § 1915(d) for dismissal of the cause as frivolous. [Footnote 9]If the District Court finds the application is not in good faith, and therefore denies leave to appeal in forma pauperis, the defendant may seek identical relief from the Court of Appeals. [Footnote 10] In considering such an application Page 369 U. S. 446 addressed to it, the Court of Appeals will have before it what is usually the pro se pleading of a layman and the certificate of a district judge that the applicant lacks "good faith" in seeking appellate review. The District Court's certificate is not conclusive, although it is, of course, entitled to weight. [Footnote 11] However, we have recognized that the materials before the Court of Appeals at this stage of the proceedings are generally inadequate for passing upon the defendant's application. Nevertheless, if, from the face of the papers he has filed, it is apparent that the applicant will present issues for review not clearly frivolous, the Court of Appeals should then grant leave to appeal in forma pauperis, appoint counsel to represent the appellant, and proceed to consideration of the appeal on the merits in the same manner that it considers paid appeals. If, on the other hand, the claims made or the issues sought to be raised by the applicant are such that their substance cannot adequately be ascertained from the face of the defendant's application, the Court of Appeals must provide the would-be appellant with both the assistance of counsel and a record of sufficient completeness to enable him to attempt to make a showing that the District Court's certificate of lack of "good faith" is in error, and that leave to proceed with the appeal in forma pauperis should be allowed. [Footnote 12] If, with such aid, the applicant then presents any issue for the court's consideration not clearly frivolous, leave to proceed in forma pauperis must be allowed.In so holding, we have been impelled by considerations beyond the corners of 28 U.S.C. § 1915, considerations that it is our duty to assure to the greatest degree possible, Page 369 U. S. 447 within the statutory framework for appeals created by Congress, equal treatment for every litigant before the bar. [Footnote 13] We have expressed this view in a case comparable to the one before us here by holding that"[u]nless the issues raised [by the indigent seeking leave to appeal in forma pauperis] are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant, Fed.Rules Crim.Proc. 39(a), the request of an indigent for leave to appeal in forma pauperis must be allowed."Ellis v. United States, 356 U. S. 674, 356 U. S. 675. The point of equating the test for allowing a pauper's appeal to the test for dismissing paid cases is to assure equality of consideration for all litigants. The equation is intended to place the burdens of proof and persuasion in all cases on the same party -- in these cases, on the Government. Since our statutes and rules make an appeal in a criminal case a matter of right, the burden of showing that that right has been abused through the prosecution Page 369 U. S. 448 of frivolous litigation should at all times be on the party making the suggestion of frivolity. It is not the burden of the petitioner to show that his appeal has merit, in the sense that he is bound, or even likely, to prevail ultimately. He is to be heard, as is any appellant in a criminal case, if he makes a rational argument on the law or facts. It is the burden of the Government, in opposing an attempted criminal appeal in forma pauperis, to show that the appeal is lacking in merit -- indeed, that it is so lacking in merit that the court would dismiss the case on motion of the Government, had the case been docketed and a record been filed by an appellant able to afford the expense of complying with those requirements. [Footnote 14] If it were the practice of a Court of Appeals to screen the paid appeals on its docket for frivolity, without hearing oral argument, reviewing a record of the trial proceedings, or considering full briefs, paupers could, of course, be bound by the same rules. But if the practice of the Court of Appeals is to defer rulings on motions to dismiss paid appeals until the court has had the benefit of hearing argument and considering briefs and an adequate record, we hold it must no less accord the poor person the same procedural rights.Two additional factors have relevance to our view of the proper disposition of motions for leave to perfect criminal appeals in forma pauperis. These factors are the foundation for Rule 39(d) of the Federal Rules of Criminal Procedure, specifying that preference shall be given by the Courts of Appeals to criminal cases. This Rule, first, acknowledges the importance to the sovereign, Page 369 U. S. 449 to the accused and to society of a criminal prosecution. When society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair, and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged. [Footnote 15] Second, the preference to be accorded criminal appeals recognizes the need for speedy disposition of such cases. Delay in the final judgment of conviction, including its appellate review, unquestionably erodes the efficacy of law enforcement.Both of these considerations are particularly pertinent to criminal appeals in forma pauperis. Statistics compiled in the court below illustrate the undeniable fact that as many meritorious criminal cases come before that court through applications for leave to proceed in forma pauperis as on the paid docket, and that no a priori justification can be found for considering them, as a class, to be more frivolous than those in which costs have been paid. [Footnote 16] Evenhanded administration of the criminal law Page 369 U. S. 450 demands that these cases be given no less consideration than others on the courts' dockets. Particularly since litigants in forma pauperis may, in the trial court, have suffered disadvantages in the defense of their cases inherent in their impecunious condition, is appellate review of their cases any less searching than that accorded paid appeals inappropriate. Indigents' appeals from criminal convictions cannot be used as a convenient valve for reducing the pressures of work on the courts. If there are those who insist on pursuing frivolous litigation, the courts are not powerless to dismiss or otherwise discourage it. But if frivolous litigation exists, we are not persuaded that it is concentrated in this narrow, yet vital, area of judicial duty.Similarly, statistics demonstrate the inevitable delay that surrounds a procedure in which the courts give piecemeal attention to the series of motions that indigents must make before a final adjudication of the merits of their cases is reached. Delays described in years between trial and final decision in criminal cases are the unhappy result of separate considerations of motions for the appointment of counsel, for the preparation of a transcript of the trial proceedings and, ultimately, for the leave to appeal in forma pauperis. The case before us illustrates the point. Petitioner was indicted on June 16, 1958, for offenses alleged to have been committed in early December, 1957. He was first tried and convicted in December, 1958. Leave to appeal in forma pauperis was Page 369 U. S. 451 granted by the District Court, and, on June 23, 1959, the Court of Appeals reversed the conviction and remanded the case for a new trial. 106 U.S.App.D.C. 275, 272 F.2d 504. In October, 1959, new counsel was appointed by the District Court to represent petitioner at his second trial. Pretrial motions were argued in the District Court in December, 1959, and January, 1960, and petitioner's trial took place in the first week of March, 1960. Petitioner was convicted and then sentenced on March 11, 1960. On March 22, 1960, the District Court denied an application for leave to appeal in forma pauperis. An application for leave to appeal in forma pauperis was then directed to the Court of Appeals, and was filed in that court on April 15, 1960. On April 20, that court appointed counsel to represent petitioner, and on June 15, 1960, counsel filed a 30-page memorandum in support of the petition for leave to appeal. The following day, the Government answered with a memorandum stating that it believed it appropriate for the court to order the preparation of a transcript at government expense before ruling on the petition for leave to appeal. Petitioner objected to this procedure on the grounds that his memorandum sufficiently indicated that nonfrivolous issues were present in his case, and that further delay in allowing the appeal was therefore unwarranted. On July 1, 1960, the Court of Appeals ordered the preparation of a transcript at the expense of the United States. The transcript became available August 15, 1960, and the Government's opposition to petitioner's application for leave to appeal in forma pauperis was filed, pursuant to an extension of time granted by the court, on September 2, 1960. The Government, misconceiving the issue as we understand it, claimed the points sought to be raised were "not sufficiently substantial" to warrant an appeal in forma pauperis; it did not suggest the appeal sought was "frivolous." Petitioner filed a reply memorandum on Page 369 U. S. 452 September 8. On November 5, 1960, the court, one judge dissenting, denied the petition for leave to appeal in forma pauperis. The petition for certiorari was filed in this Court on November 16, 1960, and was granted on June 19, 1961. 366 U.S. 959. We heard oral argument in December, 1961, and our present disposition of the case, remanding it for reconsideration by the Court of Appeals on an intermediary step, still far from the end of petitioner's course through the courts on his original conviction, is now ordered more than four years after the commission of the offenses for which petitioner was tried and more than two years from the date of the trial and judgment petitioner seeks to have reviewed. [Footnote 17]In the light of this delay, it is not surprising that petitioner asks us to reach the merits of his case immediately. However, delay alone, unfortunate though it is, is not sufficient cause to bypass the orderly processes of judicial review. Contrary to the Government's assertion here that petitioner has already received what amounts to Page 369 U. S. 453 plenary review of the conviction following his second trial, we hold petitioner has not yet received the benefits of presenting either oral argument or full briefs on the merits of his claims to the court first charged with the supervision of the trial court. [Footnote 18] The memoranda prepared by counsel in support of petitioner's application for leave to appeal in forma pauperis were not intended to be, nor are they rightly considered as, full appellate briefs. But they do serve to demonstrate that petitioner sought consideration of issues that it would be difficult for an appellate court to consider so patently frivolous as to require a dismissal of petitioner's case without full briefing or argument. In so saying, we need not, and do not, express any opinion on whether petitioner's conviction should ultimately be affirmed or reversed. We only hold that, taken as a whole, petitioner's various claims cannot justify the summary disposition of his case ordered below.The first of numerous claims asserted by the petitioner is that the indictment against him was procured through the use of perjured testimony before the grand jury. This Court has not yet decided whether such a charge, if proven, would require the reversal of a criminal conviction based upon an indictment returned by a grand jury hearing the perjury. But we have granted certiorari and given full consideration to related issues in other cases. See, e.g., Costello v. United States, 350 U. S. 359 (hearsay evidence considered by grand jury); Lawn v. United States, 355 U. S. 339 (illegally seized evidence considered by grand jury); Beck v. Washington, 369 U. S. 541 (alleged inflammatory publicity surrounding state grand jury deliberations).Petitioner also claims that he has been unable to prove his charge that perjured testimony was presented to the Page 369 U. S. 454 grand jury because of the refusal of the courts below to permit him to examine the transcript of the grand jury's proceedings. Again, although, in the particular context of this case, access to the normally secret minutes of the grand jury may ultimately be held to have been properly denied, recent volumes of the United States Reports and the Federal Reporter include a number of opinions in which the extent of the secrecy normally attached to grand jury minutes has been explored. [Footnote 19]A number of other arguable claims were also made by petitioner to support his application for leave to appeal. But we believe those mentioned would alone have warranted the allowance of an appeal in forma pauperis. They meet the test of being sufficiently reasonable to withstand a claim that their frivolity is so manifest that they merit no further argument or consideration, and that dismissal of petitioner's case is, therefore, in order. The judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtCoppedge v. United States, 369 U.S. 438 (1962)Coppedge v. United StatesNo. 157Argued December 12, 1961Decided April 30, 1962369 U.S. 438SyllabusTried and convicted in a Federal District Court, petitioner applied to that Court under 28 U.S.C. § 1915 for leave to appeal in forma pauperis. The District Court denied the application and certified that the appeal was not in good faith. Petitioner then filed a similar application in the Court of Appeals, which appointed counsel for petitioner. Such counsel filed a memorandum in support of the application, contending, inter alia, that the indictment had been procured by perjured testimony and that petitioner had been unable to prove this charge because of the refusal of the District Court to permit him to examine the transcript of the grand jury proceedings. The Court of Appeals ordered that a transcript of the trial proceedings be furnished to petitioner, and that the application to appeal in forma pauperis otherwise be held in abeyance. After the transcript had been prepared, the Government filed a detailed memorandum opposing the application, and petitioner filed another memorandum based upon the transcript, urging the same questions and others which he claimed showed that his appeal was not frivolous. After considering the petition and the memoranda in support and in opposition, but without hearing arguments, the Court of Appeals denied the petition without opinion.Held: the summary disposition of petitioner's application was not justified. Pp. 369 U. S. 440-454.(a) A person convicted in a Federal District Court of a federal offense is entitled to appeal as a matter of right, and he need not petition the Court of Appeals for the exercise of its discretion to allow him to bring the case before it. Pp. 369 U. S. 441-442.(b) If a defendant is unable to pay the fee for docketing his appeal in the Court of Appeals or to pay the cost of preparing a transcript of the record of the proceedings in the trial court, he cannot perfect his appeal except by applying under 28 U.S.C. § 1915 for leave to appeal in forma pauperis. Pp. 369 U. S. 442-444.(c) The sole statutory language to guide the District Court in passing upon such an application is that "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." P. 369 U. S. 444. Page 369 U. S. 439(d) The requirement that an appeal in forma pauperis be taken "in good faith" is satisfied when the defendant seeks appellate review of any issue that is not frivolous. Pp. 369 U. S. 444-445.(e) When a defendant applies to a Court of Appeals for leave to proceed in forma pauperis, the District Court's certification that the application is not "in good faith" is entitled to weight, but it is not conclusive. Pp. 369 U. S. 445-446.(f) If it appears from the face of the papers filed in the Court of Appeals that the applicant will present issues for review which are not clearly frivolous, the Court of Appeals should grant leave to proceed in forma pauperis, appoint counsel to represent the appellant, and proceed to consideration of the appeal on the merits in the same manner that it considers paid appeals. P. 369 U. S. 446.(g) If the claims made or the issues sought to be raised by the applicant are such that their substance cannot adequately be ascertained from the face of the application, the Court of Appeals must provide the would-be appellant with the assistance of counsel and with a transcript of the record sufficient to enable him to attempt to make a showing that the District Court's certificate of lack of good faith is erroneous. P. 369 U. S. 446.(h) If, with such aid, the applicant then presents any issue for the court's consideration which is not clearly frivolous, leave to proceed in forma pauperis must be granted. P. 369 U. S. 446.(i) An indigent defendant is entitled in all respects to the same right of appeal as a defendant who is able to pay the expenses of his appeal. Pp. 369 U. S. 446-447.(j) On an application for leave to appeal in forma pauperis, the burden is not on the applicant to show that his appeal has merit in the sense that he is bound, or even likely, to prevail ultimately; the burden is on the Government to show that the appeal is so lacking in merit that the court would dismiss the case as frivolous on the Government's motion had the case been docketed and had a record been filed by an appellant able to pay the expenses of complying with these requirements. Pp. 369 U. S. 447-448.(k) If it is the practice of a Court of Appeals to defer rulings on motions to dismiss paid appeals until the court has had the benefit of hearing argument and considering briefs and an adequate record, it must accord the same procedural rights to a person applying for leave to proceed in forma pauperis. P. 369 U. S. 448.(l) In passing upon applications for leave to appeal in forma pauperis, the Courts of Appeals should have due regard for the Page 369 U. S. 440 facts that Federal Rule of Criminal Procedure 39(d) requires that, in setting appeals for argument, preference shall be given by the Courts of Appeals to appeals in criminal cases, and that the purpose of this requirement is to meet the need for speedy disposition of such cases. Pp. 369 U. S. 448-450.(m) Although there have been many proceedings and much delay in disposing of this case, the petitioner has not yet received the plenary review of his conviction to which he is entitled, since he has not yet received the benefits of presenting either oral argument or full briefs on the merits to the Court of Appeals. Pp. 369 U. S. 450-453.(n) On the record in this case, taken as a whole, it cannot be said that petitioner's claims are so frivolous as to justify the summary disposition of his case which was ordered below. Pp. 369 U. S. 450-454.Judgment vacated and case remanded for further proceedings.

1987_86-805

JUSTICE BLACKMUN delivered the opinion of the Court.The questions presented by this case are (a) whether the common law in pari delicto defense is available in a private Page 486 U. S. 625 action brought under § 12(1) of the Securities Act of 1933 (Securities Act), 48 Stat. 74, as amended, 15 U.S.C. § 77a et seq., for the rescission of the sale of unregistered securities, and (b) whether one must intend to confer a benefit on himself or on a third party in order to qualify as a "seller" within the meaning of § 12(1).IThe controversy arises out of the sale prior to 1982 of unregistered securities (fractional undivided interests in oil and gas leases) by petitioner Billy J. "B. J." Pinter to respondents Maurice Dahl and Dahl's friends, family, and business associates. [Footnote 1] Pinter is an oil and gas producer in Texas and Oklahoma, and a registered securities dealer in Texas. Dahl is a California real estate broker and investor, who, at the time of his dealings with Pinter, was a veteran of two unsuccessful oil and gas ventures. In pursuit of further investment opportunities, Dahl employed an oil field expert to locate and acquire oil and gas leases. This expert introduced Dahl to Pinter. Dahl advanced $20,000 to Pinter to acquire leases, with the understanding that they would be held in the name of Pinter's Black Gold Oil Company and that Dahl would have a right of first refusal to drill certain wells on the leasehold properties. Pinter located leases in Oklahoma, and Dahl toured the properties, often without Pinter, in order to talk to others and "get a feel for the properties." App. to Pet. Page 486 U. S. 626 for Cert. 32. Upon examining the geology, drilling logs, and production history assembled by Pinter, Dahl concluded, in the words of the District Court, that "there was no way to lose." Ibid.After investing approximately $310,000 in the properties, Dahl told the other respondents about the venture. Except for Dahl and respondent Grantham, none of the respondents spoke to or met Pinter or toured the properties. Because of Dahl's involvement in the venture, each of the other respondents decided to invest about $7,500. [Footnote 2]Dahl assisted his fellow investors in completing the subscription agreement form prepared by Pinter. Each letter contract signed by the purchaser stated that the participating interests were being sold without the benefit of registration under the Securities Act, in reliance on Securities and Exchange Commission (SEC or Commission) Rule 146, 17 CFR § 230.146 (1982). [Footnote 3] In fact, the oil and gas interests involved in this suit were never registered with the Commission. Respondents' investment checks were made payable to Black Gold Oil Company. Dahl received no commission from Pinter in connection with the other respondents' purchases. Page 486 U. S. 627When the venture failed and their interests proved to be worthless, respondents brought suit against Pinter in the United States District Court for the Northern District of Texas, seeking rescission under § 12(1) of the Securities Act, 15 U.S.C. § 771(1), for the unlawful sale of unregistered securities. [Footnote 4] Page 486 U. S. 628In a counterclaim, Pinter alleged that Dahl, by means of fraudulent misrepresentations and concealment of facts, induced Pinter to sell and deliver the securities. Pinter averred that Dahl falsely assured Pinter that he would provide other qualified, sophisticated, and knowledgeable investors with all the information necessary for evaluation of the investment. Dahl allegedly agreed to raise the funds for the venture from those investors, with the understanding that Pinter would simply be the "operator" of the wells. App. 69-73. [Footnote 5] Pinter also asserted, on the basis of the same factual allegations, that Dahl's suit was barred by the equitable defenses of estoppel and in pari delicto. Id. at 66-67. [Footnote 6]The District Court, after a bench trial, granted judgment for respondent investors. Id. at 92. The court concluded that Pinter had not proved that the oil and gas interests were entitled to the private offering exemption from registration. App. to Pet. for Cert. a-37. Accordingly, the court ruled Page 486 U. S. 629 that, because the securities were unregistered, respondents were entitled to rescission pursuant to § 12(1). Ibid. [Footnote 7] The court also concluded that the evidence was insufficient to sustain Pinter's counterclaim against Dahl. The District Court made no mention of the equitable defenses asserted by Pinter, but it apparently rejected them.A divided panel of the Court of Appeals for the Fifth Circuit affirmed. 787 F.2d 985 (1986). The court first held that Dahl's involvement in the sales to the other respondents did not give Pinter an in pari delicto defense to Dahl's recovery. Id. at 988. [Footnote 8] The court concluded that the defense is not available in an action under § 12(1), because that section creates "a strict liability offense," rather than liability based on intentional misconduct. It thereby distinguished our recent decision in Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U. S. 299 (1985), where we held that the in pari delicto defense is applicable in an action under § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. § 78j(b), which contains an element of scienter. Noting that Dahl was "as culpable' as Pinter in the sense that his conduct was an equal producing cause of the illegal transaction," the court nevertheless held that, "[a]bsent a showing that Dahl's conduct was `offensive to the dictates of natural justice,'" the in pari delicto defense was not available. 787 F.2d at 988, quoting Keystone Driller Co. v. General Excavator Co., 290 U. S. 240, 290 U. S. 245 (1933).The Court of Appeals next considered whether Dahl was himself a "seller" of the oil and gas interests within the meaning of § 12(1), for if he was, the court assumed, he could be held liable in contribution for the other plaintiffs' claims Page 486 U. S. 630 against Pinter. [Footnote 9] 787 F.2d at 990, and n. 8. Citing Fifth Circuit precedent, the court described a statutory seller as"(1) one who parts with title to securities in exchange for consideration or (2) one whose participation in the buy-sell transaction is a substantial factor in causing the transaction to take place."Id. at 990. While acknowledging that Dahl's conduct was a "substantial factor" in causing the other plaintiffs to purchase securities from Pinter, the court declined to hold that Dahl was a "seller" for purposes of § 12(1). Instead, the court went on to refine its test to include a threshold requirement that one who acts as a "promoter" be "motivated by a desire to confer a direct or indirect benefit on someone other than the person he has advised to purchase." 787 F.2d at 991. The court reasoned that"a rule imposing liability (without fault or knowledge) on friends and family members who give one another gratuitous advice on investment matters unreasonably interferes with well established patterns Page 486 U. S. 631 of social discourse."Ibid. Accordingly, since the court found no evidence that Dahl sought or received any financial benefit in return for his advice, it declined to impose liability on Dahl for "mere gregariousness." Ibid.The dissenting judge took issue with the majority's analysis on both points. First, assuming that this Court's decision in Bateman Eichler applied to all securities cases, the dissent concluded that Dahl's suit should be barred by the in pari delicto doctrine because Dahl was a "catalyst" for the entire transaction and knew that the securities were unregistered. 787 F.2d at 991. In addition, the dissent maintained that Dahl's conduct transformed him into a "seller" of unregistered securities to the other plaintiffs under the Fifth Circuit's established "substantial factor" test. Id. at 991-992. It added that, even under the majority's expectation-of-financial-benefit refinement, Dahl's promotional activities rendered him a "seller" because "[m]ore investors means that the investment program receives the requisite amount of financing, at a smaller risk to each investor." Id. at 992, n. 3. [Footnote 10]The Court of Appeals, by an 8-6 vote, denied rehearing en banc. 794 F.2d 1016 (1986). The judges who dissented from that denial asserted that the panel majority's addition of the financial-benefit requirement to the definition of a "seller," "has absolutely no foundation in either settled securities law or its underlying policies." Id. at 1017. They also criticized the panel majority for misinterpreting Bateman Eichler to limit application of the in pari delicto doctrine to fraud actions under § 10(b). 794 F.2d at 1017. Page 486 U. S. 632Because of the importance of the issues involved to the administration of the federal securities law, we granted certiorari. 481 U.S. 1012 (1987).IIThe equitable defense of in pari delicto, which literally means "in equal fault," is rooted in the common law notion that a plaintiff's recovery may be barred by his own wrongful conduct. See Bateman Eichler, 472 U.S. at 472 U. S. 306, and nn. 12 and 13. Traditionally, the defense was limited to situations where the plaintiff bore "at least substantially equal responsibility for his injury," id. at 472 U. S. 307, and where the parties' culpability arose out of the same illegal act. 1 J. Story, Equity Jurisprudence 399-400 (14th ed.1918). Contemporary courts have expanded the defense's application to situations more closely analogous to those encompassed by the "unclean hands" doctrine, where the plaintiff has participated "in some of the same sort of wrongdoing" as the defendant. See Perma Life Mufflers, Inc. v. International Parts Corp., 392 U. S. 134, 392 U. S. 138 (1968). In Perma Life, however, the Court concluded that this broadened construction is not appropriate in litigation arising under federal regulatory statutes. Ibid. Nevertheless, in separate opinions, five Justices recognized that a narrow, more traditional formulation should be available in private actions under the antitrust laws. See id. at 392 U. S. 145 (WHITE, J., concurring); id. at 392 U. S. 147-148 (Fortas, J., concurring in result); id. at 392 U. S. 148-149, 151 (MARSHALL, J., concurring in result); id. at 392 U. S. 154-155 (Harlan, J., joined by Stewart, J., concurring in part and dissenting in part).In Bateman Eichler, the Court addressed the scope of the in pari delicto defense in the context of an action brought by securities investors under the antifraud provisions of § 10(b) and Rule 10b-5, alleging that the broker-dealer and corporate insider defendants had induced the plaintiffs to purchase large quantities of stock by divulging false and materially incomplete information on the pretext that it was accurate Page 486 U. S. 633 inside information. The defendants argued that the scope should be broader where the private cause of action is implied, as in a § 10(b) action, rather than expressly provided by Congress, as in an antitrust action. The Court rejected this distinction, concluding that "the views expressed in Perma Life apply with full force to implied causes of action under the federal securities laws." 472 U.S. at 472 U. S. 310. Accordingly, it held that the in pari delicto defense is available"only where (1) as a direct result of his own actions, the plaintiff bears at least substantially equal responsibility for the violations he seeks to redress, and (2) preclusion of suit would not significantly interfere with the effective enforcement of the securities laws and protection of the investing public."Id. at 472 U. S. 310-311. The first prong of this test captures the essential elements of the classic in pari delicto doctrine. See id. at 472 U. S. 307. The second prong, which embodies the doctrine's traditional requirement that public policy implications be carefully considered before the defense is allowed, see ibid., ensures that the broad judge-made law does not undermine the congressional policy favoring private suits as an important mode of enforcing federal securities statutes. Cf. Perma Life, 392 U.S. at 392 U. S. 139-140. Applying this test to the § 10(b) claim before it, the Court concluded that, in such tipster-tippee situations, the two factors precluded recognition of the in pari delicto defense. Bateman Eichler, 472 U.S. at 472 U. S. 317.We do not share the Court of Appeals' narrow vision of the applicability of Bateman Eichler. Nothing in this Court's opinion in that case suggests that the in pari delicto defense is limited to § 10(b) claims. Nor does the opinion suggest that the doctrine applies only when the plaintiff's fault is intentional or willful.We feel that the Court of Appeals' notion that the in pari delicto defense should not be allowed in actions involving Page 486 U. S. 634 strict liability offenses is without support in history or logic. [Footnote 11] The doctrine traditionally has been applied in any action based on conduct that "transgresses statutory prohibitions." 2 Restatement of Contracts § 598, Comment a (1932). Courts have recognized the defense in cases involving strict liability offenses. See, e.g., UFITEC, S.A. v. Carter, 20 Cal. 3d 238, 250, 571 P.2d 990, 996-997 (1977) (violation of Federal Reserve margin requirements); Miller v. California Roofing Co., 55 Cal. App. 2d 136, 130 P.2d 740 (1942) (sale of stock without permit from State Corporation Commission). One of the premises on which the in pari delicto doctrine is grounded is that "denying judicial relief to an admitted wrongdoer is an effective means of deterring illegality." Bateman Eichler, 472 U.S. at 472 U. S. 306. The need to deter illegal conduct is not eliminated simply because a statute creates a strict liability offense, rather than punishing willful or negligent misconduct. Regardless of the degree of scienter, there may be circumstances in which the statutory goal of deterring illegal conduct is served more effectively by preclusion of suit than by recovery. In those circumstances, the in pari delicto defense should be afforded. Cf. A. C. Frost & Co. v. Coeur D'Alene Mines Corp., 312 U. S. 38, 312 U. S. 43-44, and n. 2 (1941).In Bateman Eichler, the Court granted certiorari to resolve a conflict of authority "over the proper scope of the in pari delicto defense in securities litigation." 472 U.S. at 472 U. S. 305. The Court formulated the standards under which the defense should be recognized in language applicable generally to federal securities litigation. The formulation was articulated in the specific context of deciding when"a private action for damages [in implied causes of action under the federal Page 486 U. S. 635 securities laws] may be barred on the grounds of the plaintiff's own culpability."Id. at 472 U. S. 310. Nevertheless, the Court's rejection of the distinction between implied and express private causes of action, especially when considered in light of the broad question on which the Court granted certiorari, makes clear that the Court assumed that the in pari delicto defense should be equally available when Congress expressly provides for private remedies. Thus, we conclude that Bateman Eichler provides the appropriate test for allowance of the in pari delicto defense in a private action under any of the federal securities laws.Our task, then, is to determine whether, pursuant to this test, recognition of the defense is proper in a suit for rescission brought under § 12(1) of the Securities Act. All parties in this case, as well as the Commission, maintain that the defense should be available. [Footnote 12] We agree, but find it necessary to circumscribe the scope of its application.BUnder the first prong of the Bateman Eichler test, as we have noted above, a defendant cannot escape liability unless, as a direct result of the plaintiff's own actions, the plaintiff bears at least substantially equal responsibility for the underlying Page 486 U. S. 636 illegality. The plaintiff must be an active, voluntary participant in the unlawful activity that is the subject of the suit. See Woolf v. S.D. Cohn & Co., 515 F.2d 591, 604 (CA5 1975), vacated and remanded on other grounds, 426 U.S. 944 (1976); see also Bateman Eichler, 472 U.S. at 472 U. S. 312. "Plaintiffs who are truly in pari delicto are those who have themselves violated the law in cooperation with the defendant." Perma Life, 392 U.S. at 392 U. S. 153 (Harlan, J., concurring in part and dissenting in part). Unless the degrees of fault are essentially indistinguishable or the plaintiff's responsibility is clearly greater, the in pari delicto defense should not be allowed, and the plaintiff should be compensated. See id. at 392 U. S. 146 (WHITE, J., concurring); id. at 392 U. S. 147 (Fortas, J., concurring in result); id. at 392 U. S. 149 (MARSHALL, J., concurring in result); Bateman Eichler, 472 U.S. at 472 U. S. 312-314. Refusal of relief to those less blameworthy would frustrate the purpose of the securities laws; it would not serve to discourage the actions of those most responsible for organizing forbidden schemes; and it would sacrifice protection of the general investing public in pursuit of individual punishment. See CanAm Petroleum Co. v. Beck, 331 F.2d 371, 373 (CA10 1964).In the context of a private action under § 12(1), the first prong of the Bateman Eichler test is satisfied if the plaintiff is at least equally responsible for the actions that render the sale of the unregistered securities illegal -- the issuer's failure to register the securities before offering them for sale, or his failure to conduct the sale in such a manner as to meet the registration exemption provisions. As the parties and the Commission agree, a purchaser's knowledge that the securities are unregistered cannot, by itself, constitute equal culpability, even where the investor is a sophisticated buyer who may not necessarily need the protection of the Securities Act. Barring the investor's recovery under the in pari delicto doctrine,"at least on the basis solely of the buyer's knowledge of the violation, is so foreign to the purpose of the section that there is hardly a trace of it in the decisions under Page 486 U. S. 637 . . . § 12(1)."3 L. Loss, Securities Regulation 1694 (2d ed.1961). [Footnote 13] Although a court's assessment of the relative responsibility of the plaintiff will necessarily vary depending on the facts of the particular case, courts frequently have focused on the extent to which the plaintiff and the defendant cooperated in developing and carrying out the scheme to distribute unregistered securities. See, e.g., Katz v. Amos Treat & Co., 411 F.2d 1046, 1054 (CA2 1969); Lawler v. Gilliam, 569 F.2d 1283, 1292-1293 (CA4 19783); Malamphy v. Real-Tex Enterprises, Inc., 527 F.2d 978 (CA4 1975). In addition, if the plaintiff were found to have induced the issuer not to register, he well might be precluded from obtaining § 12(1) rescission.Under the second prong of the Bateman Eichler test, a plaintiff's recovery may be barred only if preclusion of suit Page 486 U. S. 638 does not offend the underlying statutory policies. The primary purpose of the Securities Act is to protect investors by requiring publication of material information thought necessary to allow them to make informed investment decisions concerning public offerings of securities in interstate commerce. SEC v. Ralston Purina Co., 346 U. S. 119, 346 U. S. 124 (1953); A. C. Frost & Co. v. Coeur D'Alene Mines Corp., 312 U.S. at 312 U. S. 43, and n. 2. See H.R.Rep. No. 85, 73d Cong., 1st Sess., 1-5 (1933). [Footnote 14] The registration requirements are the heart of the Act, and § 12(1) imposes strict liability for violating those requirements. Liability under § 12(1) is a particularly important enforcement tool, because in many instances a private suit is the only effective means of detecting and deterring a seller's wrongful failure to register securities before offering them for sale. Lawler v. Gilliam, 569 F.2d at 1293, citing Woolf v. S.D. Cohn & Co., 515 F.2d at 605. See also Bateman Eichler, 472 U.S. at 472 U. S. 310.In our view, where the § 12(1) plaintiff is primarily an investor, precluding suit would interfere significantly with effective enforcement of the securities laws and frustrate the primary objective of the Securities Act. The Commission, too, takes this position. Because the Act is specifically designed to protect investors, even where a plaintiff actively participates in the distribution of unregistered securities, his Page 486 U. S. 639 suit should not be barred where his promotional efforts are incidental to his role as an investor. See Can-Am Petroleum Co. v. Beck, 331 F.2d at 373-374 (plaintiff's "relationship as a pure investor became adulterated when she actively assisted in selling others but she at no time had the degree of culpability attributed to defendants and should not be considered as in pari delicto"). Cf. Athas v. Day, 186 F. Supp. 385, 389 (Colo.1960) (barring recovery to plaintiff who participated extensively as promoter of unlawful securities distribution). Thus, the in pari delicto defense may defeat recovery in a § 12(1) action only where the plaintiff's role in the offering or sale of nonexempted, unregistered securities is more as a promoter than as an investor.Whether the plaintiff in a particular case is primarily an investor or primarily a promoter depends upon a host of factors, all readily accessible to trial courts. These factors include the extent of the plaintiff's financial involvement compared to that of third parties solicited by the plaintiff, compare Can-Am Petroleum Co. v. Beck, supra, with Athas v. Day, supra; the incidental nature of the plaintiff's promotional activities, see Malamphy v. Real-Tex Enterprises, Inc., 527 F.2d at 980; the benefits received by the plaintiff from his promotional activities; and the extent of the plaintiff's involvement in the planning stages of the offering (such as whether the plaintiff has arranged an underwriting or prepared the offering materials). We do not mean to suggest that these factors provide conclusive evidence of culpable promotional activity, or that they constitute an exhaustive list of factors to be considered. The courts are free, in the exercise of their sound discretion, to consider whatever facts are relevant to the inquiry.CGiven the record in this case, we cannot ascertain whether Pinter may successfully assert an in pari delicto defense Page 486 U. S. 640 against Dahl's § 12(1) claim. [Footnote 15] The District Court's findings in this case are not adequate to determine whether Dahl bears at least substantially equal responsibility for the failure to register the oil and gas interests or to distribute the securities in a manner that conformed with the statutory exemption, and whether he was primarily a promoter of the offering. [Footnote 16] The findings indicate, on the one hand, that Dahl may have participated in initiating the entire investment, and that he loaned money to Pinter and solicited his associates' participation in the venture, but, on the other hand, that Dahl invested substantially more money than the other investor-respondents, expected and received no commission Page 486 U. S. 641 for his endeavors, and drafted none of the offering documents. Furthermore, the District Court made no findings as to who was responsible for the failure to register or for the manner in which the offering was conducted. Those findings will be made on the remand of this case for further proceedings.IIIWhat we have said as to the availability to Pinter of the in pari delicto defense against Dahl's § 12(1) action does not obviate the need to consider the second question presented by petitioner. [Footnote 17] We turn now to that issue.In determining whether Dahl may be deemed a "seller" for purposes of § 12(1), such that he may be held liable for the sale of unregistered securities to the other investor-respondents, we look first at the language of § 12(1). See Ernst & Ernst v. Hochfelder, 425 U. S. 185, 425 U. S. 197 (1976). That statute provides, in pertinent part: "Any person who . . . offers or sells a security" in violation of the registration requirement of the Securities Act "shall be liable to the person purchasing such security from him." 15 U.S.C. § 771. This provision defines the class of defendants who may be subject to liability [Footnote 18] as those who offer or sell unregistered Page 486 U. S. 642 securities. [Footnote 19] But the Securities Act nowhere delineates who may be regarded as a statutory seller, and the sparse legislative history sheds no light on the issue. The courts, on their part, have not defined the term uniformly.At the very least, however, the language of § 12(1) contemplates a buyer-seller relationship not unlike traditional contractual privity. Thus, it is settled that § 12(1) imposes liability on the owner who passed title, or other interest in the security, to the buyer for value. See Loss, at 1016. Dahl, of course, was not a seller in this conventional sense, and therefore may be held liable only if § 12(1) liability extends to persons other than the person who passes title. [Footnote 20]AIn common parlance, a person may offer or sell property without necessarily being the person who transfers title to, Page 486 U. S. 643 or other interest in, that property. We need not rely entirely on ordinary understanding of the statutory language, however, for the Securities Act defines the operative terms of § 12(1). Section 2(3) defines "sale" or "sell" to include "every contract of sale or disposition of a security or interest in a security, for value," and the terms "offer to sell," "offer for sale," or "offer" to include "every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security, for value." 15 U.S.C. § 77b(3). Under these definitions, the range of persons potentially liable under § 12(1) is not limited to persons who pass title. The inclusion of the phrase "solicitation of an offer to buy" within the definition of "offer" brings an individual who engages in solicitation, an activity not inherently confined to the actual owner, within the scope of § 12. See Loss, at 1016; Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L.J. 171, 206-207 (1933). Indeed, the Court has made clear, in the context of interpreting § 17(a) of the Securities Act, 15 U.S.C. § 77q(a), that transactions other than traditional sales of securities are within the scope of § 2(3), and passage of title is not important. See United States v. Naftalin, 441 U. S. 768, 441 U. S. 773 (1979). We there explained:"The statutory terms ['offer' and 'sell'], which Congress expressly intended to define broadly, . . . are expansive enough to encompass the entire selling process, including the seller/agent transaction."Ibid. See also Rubin v. United States, 449 U. S. 424, 449 U. S. 430 (1981) ("It is not essential under the terms of the Act that full title pass to a transferee for the transaction to be an offer' or a `sale'").Determining that the activity in question falls within the definition of "offer" or "sell" in § 2(3), however, is only half of the analysis. The second clause of § 12(1), which provides that only a defendant "from" whom the plaintiff "purchased" securities may be liable, narrows the field of potential sellers. [Footnote 21] Page 486 U. S. 644 Several courts and commentators have stated that the purchase requirement necessarily restricts § 12 primary liability to the owner of the security . E.g., Beck v. Cantor, Fitzgerald & Co., 621 F. Supp. 1547, 1560-1561 (ND Ill.1985); Abrams, The Scope of Liability Under Section 12 of the Securities Act of 1933: "Participation" and the Pertinent Legislative Materials, 15 Ford.Urban L.J. 877 (1987); see also Collins v. Signetics Corp., 605 F.2d 110, 113 (CA3 1979) (absent some "special relationship" -- e.g., control -- § 12 requires privity between statutory seller and buyer). In effect, these authorities interpret the term "purchase" as complementary to only the term "sell" defined in § 2(3). Thus, an offeror, as defined by § 2(3), may incur § 12 liability only if the offeror also "sells" the security to the plaintiff, in the sense of transferring title for value. Abrams, 15 Ford. Urban L.J. at 922-923.We do not read § 12(1) so restrictively. The purchase requirement clearly confines § 12 liability to those situations in which a sale has taken place. Thus, a prospective buyer has no recourse against a person who touts unregistered securities to him if he does not purchase the securities. Loss, at 884. The requirement, however, does not exclude solicitation from the category of activities that may render a person liable when a sale has taken place. A natural reading of the statutory language would include in the statutory seller status at least some persons who urged the buyer to purchase. For example, a securities vendor's agent who solicited the purchase would commonly be said, and would be thought by the buyer, to be among those "from" whom the buyer "purchased," even though the agent himself did not pass title. See Cady v. Murphy, 113 F.2d 988, 990 (CA1) (finding broker Page 486 U. S. 645 acting as agent of the owner liable as a statutory seller), cert. denied, 311 U.S. 705 (1940).The Securities Act does not define the term "purchase." The soundest interpretation of the term, however, is as a correlative to both "sell" and "offer," at least to the extent that the latter entails active solicitation of an offer to buy. This interpretation is supported by the history of the phrase "offers or sells," as it is used in § 12(1). As enacted in 1933, § 12(1) imposed liability on "[a]ny person who . . . sells a security." 48 Stat. 84. The statutory definition of "sell" included "offer," and the activities now encompassed by that term, including solicitation. Id. at 74. The words "offer or" were added to § 12(1) by the 1954 amendments to the Securities Act, when the original definition of "sell" in § 2(3) was split into separate definitions of "sell" and "offer" in order to accommodate changes in § 5. 68 Stat. 683, 686. Since "sells" and "purchases" have obvious correlative meanings, Congress' express definition of "sells" in the original Securities Act to include solicitation suggests that the class of those from whom the buyer "purchases" extended to persons who solicit him. The 1954 amendment to § 12(1) was intended to preserve existing law, including the liability provisions of the Act. H.R.Rep. No. 1542, 83d Cong., 2d Sess., 26 (1954); S.Rep. No. 1036, 83d Cong., 2d Sess., 18 (1954); Loss, at 884. Hence, there is no reason to think Congress intended to narrow the meaning of "purchased from" when it amended the statute to include "solicitation" in the statutory definition of "offer" alone. [Footnote 22] Page 486 U. S. 646The applicability of § 12 liability to brokers and others who solicit securities purchases has been recognized frequently since the passage of the Securities Act. It long has been "quite clear" that, when a broker acting as agent of one of the principals to the transaction successfully solicits a purchase, he is a person from whom the buyer purchases within the meaning of § 12, and is therefore liable as a statutory seller. See Loss, at 1016. Indeed, courts had found liability on this basis prior to the 1954 amendment of the statute. See, e.g., Wall v. Wagner, 125 F. Supp. 854, 858 (Neb.1954), aff'd sub nom. Whittaker v. Wall, 226 F.2d 868, 873 (CA8 1955) (principal and its agents); Schillner v. H. Vaughan Clarke & Co., 134 F.2d 875, 879 (CA2 1943) (seller's broker); Cady v. Murphy, supra, (seller's broker); Boehm v. Granger, 42 N.Y.S.2d 246, 248 (Sup.1943), aff'd, 268 App.Div. 855, 50 N.Y.S.2d 845 (1944) (buyer's broker). Had Congress intended liability to be restricted to those who pass title, it could have effectuated its intent by not adding the phrase "offers or" when it split the definition of "sell" in § 2(3).An interpretation of statutory seller that includes brokers and others who solicit offers to purchase securities furthers the purposes of the Securities Act -- to promote full and fair disclosure of information to the public in the sales of securities. In order to effectuate Congress' intent that § 12(1) civil liability be in terrorem, see Douglas & Bates, 43 Yale L.J. at 173; Shulman, 43 Yale L.J. at 227, the risk of its invocation should be felt by solicitors of purchases. The solicitation of a buyer is perhaps the most critical stage of the selling transaction. It is the first stage of a traditional securities sale to involve the buyer, and it is directed at producing the sale. In addition, brokers and other solicitors are well positioned to control the flow of information to a potential purchaser, and, in fact, such persons are the participants in the selling transaction who most often disseminate material information to investors. Thus, solicitation is the stage at which an investor is most likely to be injured, that is, by Page 486 U. S. 647 being persuaded to purchase securities without full and fair information. Given Congress' overriding goal of preventing this injury, we may infer that Congress intended solicitation to fall under the mantle of § 12(1).Although we conclude that Congress intended § 12(1) liability to extend to those who solicit securities purchases, we share the Court of Appeals' conclusion that Congress did not intend to impose rescission based on strict liability on a person who urges the purchase, but whose motivation is solely to benefit the buyer. When a person who urges another to make a securities purchase acts merely to assist the buyer, not only is it uncommon to say that the buyer "purchased" from him, but it is also strained to describe the giving of gratuitous advice, even strongly or enthusiastically, as "soliciting." Section 2(3) defines an offer as a "solicitation of an offer to buy . . . for value." The person who gratuitously urges another to make a particular investment decision is not, in any meaningful sense, requesting value in exchange for his suggestion or seeking the value the titleholder will obtain in exchange for the ultimate sale. The language and purpose of § 12(1) suggest that liability extends only to the person who successfully solicits the purchase, motivated at least in part by a desire to serve his own financial interests or those of the securities owner. If he had such a motivation, it is fair to say that the buyer "purchased" the security from him and to align him with the owner in a rescission action. [Footnote 23] Page 486 U. S. 648BPetitioner is not satisfied with extending § 12(1) primary liability to one who solicits securities sales for financial gain. Pinter assumes, without explication, that liability is not limited to the person who actually parts title with the securities, and urges us to validate, as the standard by which additional defendant-sellers are identified, that version of the "substantial factor" test utilized by the Fifth Circuit before the refinement espoused in this case. [Footnote 24] Under that approach, Page 486 U. S. 649 grounded in tort doctrine, a nontransferor § 12(1) seller is defined as one "whose participation in the buy-sell transaction is a substantial factor in causing the transaction to take place." Pharo v. Smith, 621 F.2d 656, 667 (CA5 1980). [Footnote 25] Page 486 U. S. 650 The Court of Appeals acknowledged that Dahl would be liable as a statutory seller under this test. 787 F.2d at 990.We do not agree that Congress contemplated imposing § 12(1) liability under the broad terms petitioner advocates. There is no support in the statutory language or legislative history for expansion of § 12(1) primary liability beyond persons who pass title and persons who "offer," including those who "solicit" offers. Indeed, § 12's failure to impose express liability for mere participation in unlawful sales transactions suggests that Congress did not intend that the section impose liability on participants collateral to the offer or sale. When Congress wished to create such liability, it had little trouble doing so. Cf. Touche Ross & Co. v. Redington, 442 U. S. 560, 442 U. S. 572 (1979). [Footnote 26] Page 486 U. S. 651The deficiency of the substantial factor test is that it divorces the analysis of seller status from any reference to the applicable statutory language and from any examination of § 12 in the context of the total statutory scheme. Those courts that have adopted the approach have not attempted to ground their analysis in the statutory language. See n 25, supra. Instead, they substitute the concept of substantial participation in the sales transaction, or proximate causation of the plaintiff's purchase, for the words "offers or sells" in § 12. The "purchase from" requirement of § 12 focuses on the defendant's relationship with the plaintiff-purchaser. The substantial factor test, on the other hand, focuses on the defendant's degree of involvement in the securities transaction and its surrounding circumstances. Thus, although the substantial factor test undoubtedly embraces persons who pass title and who solicit the purchase of unregistered securities as statutory sellers, the test also would extend § 12(1) liability to participants only remotely related to the relevant aspects of the sales transaction. Indeed, it might expose securities professionals, such as accountants and lawyers, whose involvement is only the performance of their professional services, to § 12(1) strict liability for rescission. The buyer does not, in any meaningful sense, "purchas[e] the security from" such a person. [Footnote 27] Page 486 U. S. 652Further, no congressional intent to incorporate tort law doctrines of reliance and causation into § 12(1) emerges from the language or the legislative history of the statute. Indeed, the strict liability nature of the statutory cause of action suggests the opposite. See Douglas & Bates, 43 Yale L.J. at 177. By injecting these concepts into § 12(1) litigation, the substantial factor test introduces an element of uncertainty into an area that demands certainty and predictability. As the Fifth Circuit has conceded, the test affords no guidelines for distinguishing between the defendant whose conduct rises to a level of significance sufficient to trigger seller status, and the defendant whose conduct is not sufficiently integral to the sale. See Pharo v. Smith, 621 F.2d at 667. [Footnote 28] None of the courts employing the approach has articulated what measure of participation qualifies a person for seller status, and logically sound limitations would be difficult to develop. As a result, decisions are made on an ad hoc basis, offering little predictive value to participants in securities transactions. See Croy v. Campbell, 624 F.2d 709, 714 (CA5 1980); Pharo v. Smith, 621 F.2d at 667. We find it particularly unlikely that Congress would have ordained sub silentio the imposition of strict liability on such an unpredictably defined class of defendants.Not surprisingly, Pinter makes no attempt to justify the substantial factor test as a matter of statutory construction. Instead, the sole justification Pinter advances is that extending Page 486 U. S. 653 § 12 liability pursuant to the test protects investors and serves the "remedial purposes" of the Securities Act. See also, e.g., Lennerth v. Mendenhall, 234 F. Supp. 59, 65 (ND Ohio 1964). The Court has acknowledged that "it is proper for a court to consider . . . policy considerations in construing terms in [the federal securities] Acts." Landreth Timber Co. v. Landreth, 471 U. S. 681, 471 U. S. 695, n. 7 (1985). And the Court has recognized that Congress had "broad remedial goals" in enacting the securities laws and providing civil remedies. Ernst & Ernst v. Hochfelder, 425 U.S. at 425 U. S. 200; Tcherepnin v. Knight, 389 U. S. 332, 389 U. S. 336 (1967). Accordingly, the Court itself has construed securities law provisions "not technically and restrictively, but flexibly to effectuate [their] remedial purposes.'" Affiliated Ute Citizens v. United States, 406 U. S. 128, 406 U. S. 151 (1972), quoting SEC v. Capital Gains Research Bureau, 375 U. S. 180, 375 U. S. 195 (1963). But the Court never has conducted its analysis entirely apart from the statutory language."The ultimate question is one of congressional intent, not one of whether this Court thinks it can improve upon the statutory scheme that Congress enacted into law."Touche Ross & Co. v. Redington, 442 U.S. at 442 U. S. 578. The ascertainment of congressional intent with respect to the scope of liability created by a particular section of the Securities Act must rest primarily on the language of that section. See Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 430 U. S. 472 (1977). The broad remedial goals of the Securities Act are insufficient justification for interpreting a specific provision "more broadly than its language and the statutory scheme reasonably permit.'" Touche Ross, 442 U.S. at 442 U. S. 578, quoting SEC v. Sloan, 436 U. S. 103, 436 U. S. 116 (1978). We must assume that Congress meant what it said.The substantial factor test reaches participants in sales transactions who do not even arguably fit within the definitions set out in § 2(3); it "would add a gloss to the operative language of [§ 12(1)] quite different from its commonly accepted Page 486 U. S. 654 meaning." Ernst & Ernst v. Hochfelder, 425 U.S. at 425 U. S. 199. We conclude that Congress did not intend such a gross departure from the statutory language. Accordingly, we need not entertain Pinter's policy arguments. [Footnote 29] Being merely a "substantial factor" in causing the sale of unregistered securities is not sufficient in itself to render a defendant liable under § 12(1).CWe are unable to determine whether Dahl may be held liable as a statutory seller under § 12(1). The District Court explicitly found that"Dahl solicited each of the other plaintiffs (save perhaps Grantham) in connection with the offer, purchase, and receipt of their oil and gas interests."App. to Pet. for Cert. a-34. We cannot conclude that this finding was clearly erroneous. It is not clear, however, that Dahl had the kind of interest in the sales that make him liable as a statutory seller. We do know that he received no commission from Pinter in connection with the other sales, but this is not conclusive. Typically, a person who solicits the purchase will have sought or received a personal financial benefit from the sale, such as where he "anticipat[es] a share of the profits," Lawler v. Gilliam, 569 F.2d at 1288, or receives a brokerage commission, Cady v. Murphy, 113 F.2d at 990. But Page 486 U. S. 655 a person who solicits the buyer's purchase in order to serve the financial interests of the owner may properly be liable under § 12(1) without showing that he expects to participate in the benefits the owner enjoys.The Court of Appeals apparently concluded that Dahl was motivated entirely by a gratuitous desire to share an attractive investment opportunity with his friends and associates. See 787 F.2d at 991. This conclusion, in our view, was premature. The District Court made no findings that focused on whether Dahl urged the other purchases in order to further some financial interest of his own or of Pinter. Accordingly, further findings are necessary to assess Dahl's liability. [Footnote 30]IVThe judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtPinter v. Dahl, 486 U.S. 622 (1988)Pinter v. DahlNo. 86-805Argued December 9, 1987Decided June 15, 1988486 U.S. 622SyllabusPetitioner Pinter, an oil and gas producer and registered securities dealer, sold unregistered securities consisting of fractional undivided interests in oil and gas leases to respondent Dahl, a real estate broker and investor who was experienced in oil and gas ventures. Dahl touted the venture to the other respondents -- his friends, family, and business associates -- and assisted them in completing subscription agreement forms prepared by Pinter, but received no commission from Pinter when each of them invested in unregistered interests on the basis of Dahl's involvement. When the venture failed, respondents sued Pinter in Federal District Court, seeking rescission under § 12(1) of the Securities Act of 1933 (Act) for the unlawful sale of unregistered securities. After a bench trial, the court granted judgment for respondents, apparently rejecting Pinter's common law in pari delicto defense to Dahl's suit. The Court of Appeals affirmed, ruling that such defense was not available because § 12(1) creates a "strict liability offense," rather than liability based on intentional conduct, and distinguishing Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U. S. 299, which held that the defense applies in actions under § 10(b) of the Securities Exchange Act of 1934, on the ground that § 10(b) contains an element of scienter. The court also held that Dahl was not a "seller" within the meaning of § 12(1), and therefore could not be held liable in contribution for the other respondents' claims against Pinter, since, although Dahl's conduct was a "substantial factor" in causing the other respondents' purchases, there was no evidence that he had sought or received financial benefit for himself or anyone other than the other respondents.Held:1. The in pari delicto defense is available in a § 12(1) private rescission action. Pp. 486 U. S. 632-641.(a) Bateman Eichler is not limited to § 10(b) claims, to cases involving willful or negligent misconduct, or to implied, as opposed to express, private causes of action. Rather, the decision provides the appropriate test for allowance of the in pari delicto defense in a private action under any of the federal securities laws, including a § 12(1) rescission suit. Pp. 486 U. S. 633-635. Page 486 U. S. 623(b) The first prong of the Bateman Eichler test is satisfied in the § 12(1) context if the plaintiff is at least equally responsible for the issuer's illegal failure to register the securities or to conduct the sale in a manner that satisfies the Act's registration exemption provisions. A purchaser's knowledge that the securities are unregistered cannot, by itself, constitute equal culpability, even where he is a sophisticated buyer who may not necessarily need the Act's protection. Rather, the relative responsibility assessment turns upon the facts of each case. The second prong of the Bateman Eichler test is satisfied in the § 12(1) context where the plaintiff's role is primarily as a promoter, rather than as an investor. The determination depends on a host of readily accessible factors, including, but not limited to, the extent of the plaintiff's financial involvement compared to that of the third parties he solicited, the incidental nature of his promotional activities, the benefits he received for those activities, and the extent of his involvement in the offering's planning stages. Pp. 486 U. S. 635-639.(c) The District Court's findings are inadequate to determine whether Dahl may be subjected to Pinter's in pari delicto defense under the Bateman Eichler test, as it applies to § 12(1) actions. Pp. 486 U. S. 639-641.2. A nonowner of securities must solicit the purchase, motivated at least in part by a desire to serve his own financial interests or those of the securities owner, in order to qualify as a "seller" within the meaning of § 12(1), which provides that "[a]ny person who . . . offers or sells a security" in violation of the Act's registration requirement "shall be liable to the person purchasing such security from him." Pp. 486 U. S. 641-655.(a) Section 12(1)'s language and history, as well as the statutory purpose of protecting investors, demonstrate that "seller" is not limited to an owner who passes title, or other interest in a security, to the buyer for value, but extends to a broker or other person who successfully solicits a purchase of securities, so long as he is motivated at least in part by a desire to serve his own financial interests or those of the securities owner. It strains the meaning of § 2(3) of the Act, which defines "offer" for § 12(1)'s purposes as including every "solicitation of an offer to buy . . . for value," to say that a person who gratuitously urges another, even strongly or enthusiastically, to make a securities purchase solely for the buyer's benefit is "soliciting" or is requesting value in exchange for his suggestion or seeking the value the titleholder will obtain in exchange for the ultimate sale. Only if the soliciting person is motivated by such a financial interest can it be fairly said that the buyer "purchased" the security from him, such that he can be aligned with the owner in a rescission action. Pp. 486 U. S. 642-647.(b) The language, history, and statutory context of § 12(1) demonstrate that the "substantial factor" test, whereby a nontransferor seller Page 486 U. S. 624 is defined as one whose participation in the buy-sell transaction is a substantial factor in causing the transaction to take place, is not an appropriate standard for assessing § 12(1) liability as a statutory seller. Without affording guidelines for determining when the defendant's conduct is sufficiently integral to the sale, the test would expand primary § 12(1) liability beyond persons who pass title and those who "offer" or "solicit" offers for financial gain to persons who merely participate in unlawful sales transactions but are only remotely related to the relevant aspects of the transactions, including accountants and lawyers simply performing their professional services. Such persons do not even arguably fit within the definitions set out in § 2(3). Congress did not intend such a gross departure from the statutory language. Pp. 486 U. S. 648-654.(c) The record is insufficient to determine whether Dahl may be liable as a statutory "seller" under § 12(1). The District Court's finding that Dahl solicited the other respondents' purchases is not clearly erroneous. However, the Court of Appeals' apparent conclusion that Dahl was motivated entirely by a gratuitous desire to share an attractive investment opportunity with his friends and associates was premature, since the District Court made no findings that focused on whether he urged the other respondents' purchases in order to further some financial interest of his own or of Pinter. Pp. 486 U. S. 654-655.787 F.2d 985, vacated and remanded.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 486 U. S. 655. KENNEDY, J., took no part in the consideration or decision of the case.

1986_85-759

JUSTICE STEVENS delivered the opinion of the Court.Baltimore police officers obtained and executed a warrant to search the person of Lawrence McWebb and "the premises known as 2036 Park Avenue third floor apartment." [Footnote 1] When the police applied for the warrant and when they conducted the search pursuant to the warrant, they reasonably believed that there was only one apartment on the premises described in the warrant. In fact, the third floor was divided into two apartments, one occupied by McWebb and one by respondent Garrison. Before the officers executing the warrant became aware that they were in a separate apartment occupied by respondent, they had discovered the contraband that provided the basis for respondent's conviction for violating Maryland's Controlled Substances Act. The question presented is whether the seizure of that contraband was prohibited by the Fourth Amendment.The trial court denied respondent's motion to suppress the evidence seized from his apartment, App. 46, and the Maryland Page 480 U. S. 81 Court of Special Appeals affirmed. 58 Md.App. 417, 473 A.2d 514 (1984). The Court of Appeals of Maryland reversed and remanded with instructions to remand the case for a new trial. 303 Md. 385, 494 A.2d 193 (1985).There is no question that the warrant was valid and was supported by probable cause. Id. at 392, 494 A.2d at 196. The trial court found, and the two appellate courts did not dispute, that, after making a reasonable investigation, including a verification of information obtained from a reliable informant, an exterior examination of the three-story building at 2036 Park Avenue, and an inquiry of the utility company, the officer who obtained the warrant reasonably concluded that there was only one apartment on the third floor, and that it was occupied by McWebb. App. 41; 58 Md.App. at 433, 473 A.2d at 522; 303 Md., at 387-390, 494 A.2d at 194-195. When six Baltimore police officers executed the warrant, they fortuitously encountered McWebb in front of the building and used his key to gain admittance to the first-floor hallway and to the locked door at the top of the stairs to the third floor. As they entered the vestibule on the third floor, they encountered respondent, who was standing in the hallway area. The police could see into the interior of both McWebb's apartment to the left and respondent's to the right, for the doors to both were open. Only after respondent's apartment had been entered and heroin, cash, and drug paraphernalia had been found did any of the officers realize that the third floor contained two apartments. App. 41-46. As soon as they became aware of that fact, the search was discontinued. Id. at 32, 39. All of the officers reasonably believed that they were searching McWebb's apartment. [Footnote 2] No further search of respondent's apartment was made. Page 480 U. S. 82The matter on which there is a difference of opinion concerns the proper interpretation of the warrant. A literal reading of its plain language, as well as the language used in the application for the warrant, indicates that it was intended to authorize a search of the entire third floor. [Footnote 3] This is the construction adopted by the intermediate appellate court, see 58 Md.App. at 419, 473 A.2d at 515, and it also appears to be the construction adopted by the trial judge. See App. 41. One sentence in the trial judge's oral opinion, however, lends support to the construction adopted by the Court of Appeals, namely, that the warrant authorized a search of McWebb's apartment only. [Footnote 4] Under that interpretation, the Court of Page 480 U. S. 83 Appeals concluded that the warrant did not authorize the search of respondent's apartment and the police had no justification for making a warrantless entry into his premises. [Footnote 5]The opinion of the Maryland Court of Appeals relies on Article 26 of the Maryland Declaration of Rights [Footnote 6] and Maryland cases as well as the Fourth Amendment to the Federal Constitution and federal cases. Rather than containing any "plain statement" that the decision rests upon adequate and independent state grounds, see Michigan v. Long, 463 U. S. 1032, 463 U. S. 1042 (1983), the opinion indicates that the Maryland constitutional provision is construed in pari materia with the Page 480 U. S. 84 Fourth Amendment. [Footnote 7] We therefore have jurisdiction. Because the result that the Court of Appeals reached did not appear to be required by the Fourth Amendment, we granted certiorari. 475 U.S. 1009 (1986). We reverse.In our view, the case presents two separate constitutional issues, one concerning the validity of the warrant and the other concerning the reasonableness of the manner in which it was executed. See Dalia v. United States, 441 U. S. 238, 441 U. S. 258 (1979). We shall discuss the questions separately.IThe Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one "particularly describing the place to be searched and the persons or things to be seized." The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. [Footnote 8] Thus, the scope of a lawful search is"defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless Page 480 U. S. 85 search of a suitcase."United States v. Ross, 456 U. S. 798, 456 U. S. 824 (1982).In this case, there is no claim that the "persons or things to be seized" were inadequately described or that there was no probable cause to believe that those things might be found in "the place to be searched" as it was described in the warrant. With the benefit of hindsight, however, we now know that the description of that place was broader than appropriate because it was based on the mistaken belief that there was only one apartment on the third floor of the building at 2036 Park Avenue. The question is whether that factual mistake invalidated a warrant that undoubtedly would have been valid if it had reflected a completely accurate understanding of the building's floor plan.Plainly, if the officers had known, or even if they should have known, that there were two separate dwelling units on the third floor of 2036 Park Avenue, they would have been obligated to exclude respondent's apartment from the scope of the requested warrant. But we must judge the constitutionality of their conduct in light of the information available to them at the time they acted. Those items of evidence that emerge after the warrant is issued have no bearing on whether or not a warrant was validly issued. [Footnote 9] Just as the discovery of contraband cannot validate a warrant invalid when issued, so is it equally clear that the discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate the warrant. The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate. [Footnote 10] On the basis of that Page 480 U. S. 86 information, we agree with the conclusion of all three Maryland courts that the warrant, insofar as it authorized a search that turned out to be ambiguous in scope, was valid when it issued.IIThe question whether the execution of the warrant violated respondent's constitutional right to be secure in his home is somewhat less clear. We have no difficulty concluding that the officers' entry into the third-floor common area was legal; they carried a warrant for those premises, and they were accompanied by McWebb, who provided the key that they used to open the door giving access to the third-floor common area. If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to McWebb's apartment. Page 480 U. S. 87 Moreover, as the officers recognized, they were required to discontinue the search of respondent's apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant. The officers' conduct and the limits of the search were based on the information available as the search proceeded. While the purposes justifying a police search strictly limit the permissible extent of the search, the Court has also recognized the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants. [Footnote 11]In Hill v. California, 401 U. S. 797 (1971), we considered the validity of the arrest of a man named Miller based on the mistaken belief that he was Hill. The police had probable cause to arrest Hill, and they in good faith believed that Miller was Hill when they found him in Hill's apartment. As we explained:"The upshot was that the officers in good faith believed Miller was Hill, and arrested him. They were quite wrong, as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment, and, on the record before us, the officers' mistake was understandable and the arrest a reasonable response to the situation facing them at the time."Id. at 401 U. S. 803-804.While Hill involved an arrest without a warrant, its underlying rationale that an officer's reasonable misidentification Page 480 U. S. 88 of a person does not invalidate a valid arrest is equally applicable to an officer's reasonable failure to appreciate that a valid warrant describes too broadly the premises to be searched. Under the reasoning in Hill, the validity of the search of respondent's apartment pursuant to a warrant authorizing the search of the entire third floor depends on whether the officers' failure to realize the overbreadth of the warrant was objectively understandable and reasonable. Here it unquestionably was. The objective facts available to the officers at the time suggested no distinction between McWebb's apartment and the third-floor premises. [Footnote 12]For that reason, the officers properly responded to the command contained in a valid warrant even if the warrant is interpreted as authorizing a search limited to McWebb's apartment, rather than the entire third floor. Prior to the officers' discovery of the factual mistake, they perceived McWebb's apartment and the third-floor premises as one and the same; therefore their execution of the warrant reasonably included the entire third floor. [Footnote 13] Under either interpretation of the warrant, the officers' conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment. [Footnote 14] Page 480 U. S. 89 Cf. Steele v. United States, 267 U. S. 498, 603 (1926).The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtMaryland v. Garrison, 480 U.S. 79 (1987)Maryland v. GarrisonNo. 85-769Argued November 6, 1986Decided February 24, 1987480 U.S. 79SyllabusBaltimore police officers obtained and executed a warrant to search the person of one McWebb and "the premises known as 2036 Park Avenue third floor apartment" for controlled substances and related paraphernalia. The police reasonably believed that there was only one apartment on the described premises, but in fact the third floor was divided into two apartment, one occupied by McWebb and one by respondent. Before the officers became aware that they were in respondent's apartment, they discovered the contraband that provided the basis for respondent's conviction for violating Maryland's Controlled Substances Act. The trial court denied respondent's motion to suppress the evidence, and the Maryland Court of Special Appeals affirmed. The Maryland Court of Appeals reversed and remanded for a new trial.Held:1. On the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate, the warrant, insofar as it authorized a search that turned out to be ambiguous in scope, was valid when it issued. The validity of the warrant must be judged in light of the information available to the officers at the time they obtained the warrant. The discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate the warrant. Pp. 480 U. S. 84-86.2. The execution of the warrant did not violate respondent's rights under the Fourth Amendment. The validity of the search of his apartment pursuant to the warrant depends on whether the officers' failure to realize the overbreadth of the warrant was objectively understandable and reasonable, and it unquestionably was. The objective facts available to the officers at the time suggested no distinction between McWebb's apartment and the third-floor premises. Whether the premises described in the warrant are interpreted as the entire third floor or as McWebb's apartment, the officers' conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment. Pp. 480 U. S. 86-89.303 Md. 385, 494 A.2d 193, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, POWELL, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, Page 480 U. S. 80 J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 480 U. S. 89.

1957_11

MR. JUSTICE BURTON delivered the opinion of the Court.The issues here are whether, under the circumstances of this case, a state court may enjoin strikers and union representatives from (1) "threatening, intimidating or coercing any of the officers, agents or employees of [the employer] at any place," and also "from obstructing, or attempting to obstruct the free use of the streets adjacent to [the employer's] place of business, and the free ingress and egress to and from [the employer's] property," and (2) all "picketing or patroling" of the employer's premises. For reasons hereafter stated, we conclude that the state court may lawfully enjoin conduct of substantially the first category, but not of the second.Most of the material facts are uncontroverted. In 1955, respondent, Rainfair, Inc., was a Wisconsin corporation with headquarters in Racine, Wisconsin. It owned and operated a plant in Wynne, Arkansas, an essentially rural community of about 4,000 inhabitants. About 100 women and seven men were there employed in the manufacture of men's slacks which were shipped in interstate commerce. None of the employees were members of a labor union, but many had signed applications to join the Amalgamated Clothing Workers of America, CIO, which is one of the petitioners.Apparently in an effort to compel the employer to recognize the union as the bargaining agent of the employees, 29 of the employees did not report for work on May 2, 1955. A picket line was established on the street in front of the plant. Strike headquarters were Page 355 U. S. 133 maintained across the street from the plant entrance. Nearly all of the strikers were women. Their number varied from eight to 37. All was not quiet, however. On one occasion, nails were strewn over the company's parking lot and, about a week later, the whole lot was "seeded" with roofing tacks. Tacks were also scattered in the driveway of the plant manager's home and on the driveways of 12 of the nonstriking women employees. One of the pickets told the plant manager that she would "wipe the sidewalk" with him and send him back to Wisconsin because he "was nothing but trash." The plant manager was followed by the strikers each time he left the plant; he also was harassed at night by occasional shouting at his home and by numerous anonymous telephone calls.Immediately after the strike was called, respondent, by registered mail, informed each of the strikers that, if they did not return to work within a few days, the company would assume that those not returning had quit there jobs. Only three returned. Thirteen new employees were hired. The strike ended on May 19, the pickets were withdrawn, and the strikers applied for reinstatement. Respondent, however, declined to arrange for immediate reinstatement. On June 17, the strikers voted to reestablish the picket line on Monday, June 20. [Footnote 1] The purpose was to protest against respondent's failure to recognize the union and its refusal to reinstate the employees who had applied for reinstatement in May. Page 355 U. S. 134Shortly after midnight, on the morning of June 20, two women strikers deliberately drove a sharp instrument into two tires of a car owned by the daughter of one of the nonstriking women employees. [Footnote 2] At about 5:15 a.m., the police were summoned to the plant, where they found a five-foot black snake inside the plant beneath a broken window. At about 6 a.m., picketing was resumed. [Footnote 3] Although the union posted notices warning the strikers against committing acts of violence, a union representative later was sufficiently concerned to ask the police to have someone regularly on duty at the entrance to the plant. The evidence shows that the tension was in large part caused by the enormous amount of abusive language hurled by the strikers at the company employees. The Supreme Court of Arkansas later summarized this as follows:"As the employees would go to and from work at the plant, or go to lunch, or take a recess, the strikers would congregate along the west edge of their lot and sometimes in Rowena Street and engage in loud and offensive name calling, singing or shouting directed at the workers. They would call the workers 'scabs,' 'dirty scabs,' 'fat scabs,' 'yellow scabs,' 'crazy scabs,' 'cotton patch scabs,' 'pony tailed scabs,' 'fuzzy headed scabs,' 'fools,' 'cotton picking fools,' and other similar names. This took place every time an employee left or entered the plant. It was done by the strikers individually, in couples, or by the entire group and in a loud and boisterous manner. One witness described it as 'just bedlam' when more than a dozen joined in the shouting. Particular Page 355 U. S. 135 names or remarks were reserved for individual workers. One pregnant worker was greeted with, 'Get the hot water ready,' or, 'I am coming to make another payment on the baby, call Dr. Beaton,' or, 'Why, you can work another hour until you go to the delivery room.' This worker and another drove to a filling station for gasoline when two of the strikers drove up and told the attendant not to wait on 'these scabs' before he waited on the strikers.""One worker said the strikers always called her 'fat scab,' and that individual pickets and strikers made fun of her clothing and asked her if 'Pete,' the plant manager, still liked her 'low-cut dresses and earrings.' This made the employee so angry she invited the picket to come over and 'make it some of her business.' . . .""The strikers sang songs with improvised lyrics to the tune of certain popular ballads and religious and Union songs. 'When the Saints Go Marching In' became 'When the Scabs Go Marching In' and the ballad, 'Davy Crockett,' began, 'Born in a cotton patch in Arkansas, the greenest gals we ever saw. . . .'""The women pickets would stand in the street or sit near the plant and shout ugly names, stick out their tongues, hold their noses and make a variety of indecent gestures while pointing at the workers in the plant. Several workers testified the continuous name calling and boisterous conduct of the strikers made them afraid, angry, ill, or nervous, and had an adverse effect on their ability to properly do their work. Some of the workers would talk back to the strikers, while others remained silent. The Chief of Police of Wynne testified there was more tension during the second picketing than the first, and that he was fearful there was going to be trouble Page 355 U. S. 136 during the second picketing, and so informed Union staff members. One staff member called him once when trouble seemed imminent, and wanted to 'go on record' as having requested the presence of the officer."226 Ark. 80, 83-84, 288 S.W.2d 589, 591.On June 24, respondent filed a complaint in the local Chancery Court. It described the conduct of the strikers and alleged that such conduct amounted to "unlawful acts . . . for the unlawful purpose of intimidating and coercing" respondent's employees into joining the union, that respondent had no adequate remedy at law, and that it was suffering irreparable damage from such conduct. The court acted upon the complaint and the testimony of the plant manager and issued a temporary injunction. After full hearing, it made the injunction permanent on September 15. The trial court's findings included the following statement:"That the defendants, in picketing the plaintiff's plant, have resorted to violence, coercion and intimidation, and such other unlawful conduct as was calculated to cause a breach of the peace, and that the defendants have unlawfully abused the right to peaceably picket, as granted to them by the laws of this state and the Federal Constitution, and that said defendants should be permanently enjoined from picketing the plaintiff's plant."The permanent decree enjoined not only the threatening and intimidation of the employees of respondent at any place, but also all picketing or patroling of respondent's premises by the named defendants and all other persons in sympathy or acting in concert with them. [Footnote 4] The Page 355 U. S. 137 Supreme Court of Arkansas affirmed the decree. 266 Ark. 80, 288 S.W.2d 589. We granted certiorari largely because of the sweeping language of the decree. 352 U.S. 822.The applicable principles of law are substantially agreed upon. Respondent concedes that it is engaged in interstate commerce, and that its employees are entitled to the protection of the National Labor Relations Act, as amended 61 Stat. 136, 29 U.S.C. § 151. Respondent does not contend that the state court had power to enjoin peaceful organized activity, recognizing that, generally, the Page 355 U. S. 138 National Labor Relations Board has exclusive jurisdiction of such matters. Weber v. Anheuser-Busch, Inc., 348 U. S. 468. Petitioners concede that the state court had the power to enjoin violence. United Workers v. Wisconsin Board, 351 U. S. 266; Allen-Bradley Local v. Wisconsin Board, 315 U. S. 740. Respondent contends that the record here shows a pattern of violence so enmeshed in the picketing that, to restore order, it was necessary to enjoin all organized conduct. Petitioners, on the other hand, urge that there was no violence here, and no threat of it, and, accordingly, that there was no factual warrant for the injunction which issued.The issue here is whether or not the conduct and language of the strikers were likely to cause physical violence. Petitioners urge that all of this abusive language was protected, and that they could not, therefore, be enjoined from using it. We cannot agree. Words can readily be so coupled with conduct as to provoke violence. See Chaplinsky v. New Hampshire, 315 U. S. 568, 315 U. S. 571-572. Petitioners contend that the words used, principally "scab" and variations thereon, are within a protected terminology. But if a sufficient number yell any word sufficiently loudly showing an intent to ridicule, insult or annoy, no matter how innocuous the dictionary definition of that word, the effect may cease to be persuasion and become intimidation and incitement to violence. [Footnote 5] Wynne is not an industrial metropolis. When, in a small community, more than 30 people get together and act as they did here, and heap abuse on their neighbors and Page 355 U. S. 139 former friends, a court is justified in finding that violence is imminent. Recognizing that the trial court was in a better position than we can be to assess the local situation, we think the evidence supports its conclusion, affirmed by the State Supreme Court, that the conduct and massed name-calling by petitioners were calculated to provoke violence, and were likely to do so unless promptly restrained.Though the state court was within its discretionary power in enjoining future facts of violence, intimidation, and threats of violence by the strikers and the union, yet it is equally clear that such court entered the preempted domain of the National Labor Relations Board insofar as it enjoined peaceful picketing by petitioners. The picketing proper, as contrasted with the activities around the headquarters, was peaceful. There was little, if any, conduct designed to exclude those who desired to return to work. Nor can we say that a pattern of violence was established which would inevitably reappear in the event picketing were later resumed. Cf. Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U. S. 287. What violence there was was scattered in time, and much of it was unconnected with the picketing. There is nothing in the record to indicate that an injunction against such conduct would be ineffective if picketing were resumed.Accordingly, insofar as the injunction before us prohibits petitioners and others cooperating with them from threatening violence against, or provoking violence on the part of, any of the officers, agents or employees of respondent and prohibits them from obstructing or attempting to obstruct the free use of the streets adjacent to respondent's place of business, and the free ingress and egress to and from that property, it is affirmed. On the other hand, to the extent the injunction prohibits all other picketing and patroling of respondent's premises and, in Page 355 U. S. 140 particular, prohibits peaceful picketing, it is set aside. The judgment of the Supreme Court of Arkansas is vacated, and the case is remanded to it for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtYoungdahl v. Rainfair, 355 U.S. 131 (1957)Youngdahl v. RainfairNo. 11Argued October 15, 1957Decided December 9, 1957355 U.S. 131SyllabusRespondent, a manufacturer engaged in interstate commerce and whose employees were entitled to the protection of the National Labor Relations Act, operated a branch plant in an essentially rural community of about 4,000 inhabitants. The plant had about 100 employees, none of whom were members of a labor union but many of whom had signed applications to join a union. Apparently in an effort to compel respondent to recognize the union as the bargaining agent of the employees, some of the employees struck and picketed the plant. The picketing was accompanied by massed name-calling, threats, and other conduct calculated to intimidate the officers, agents and nonstriking employees of the plant. A state court enjoined not only the threatening, intimidating, or coercing of employees of the plant, but also all "picketing or patroling" of the plant premises.Held:1. The evidence supports the conclusion of the trial court, affirmed by the State Supreme Court, that the conduct and massed name-calling by petitioners were calculated to provoke violence, and were likely to do so unless promptly restrained; and such conduct and abusive language in such circumstances can be enjoined. Pp. 355 U. S. 138-139.2. However, the trial court unlawfully entered the preempted domain of the National Labor Relations Board insofar as it enjoined peaceful picketing. P. 355 U. S. 139.3. Insofar as the injunction prohibits petitioners and others cooperating with them from threatening violence, or provoking violence on the part of any of the officers, agents or employees of respondent, and prohibits them from obstructing or attempting to obstruct the free use of the streets adjacent to respondent's place of business, and the free ingress and egress to and from the property, it is affirmed. P. 355 U. S. 139.4. To the extent that the injunction prohibits all other picketing and patroling of respondent's premises and in particular prohibits peaceful picketing, it is set aside. Pp. 355 U. S. 139-140.226 Ark. 80, 288 S.W.2d 589, affirmed in part, reversed in part; judgment vacated and cause remanded. Page 355 U. S. 132

1979_79-5364

REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and WHITE, J., joined, post, p. 447 U. S. 337.MR. JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE STEWART, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN joined.Burch v. Louisiana, 441 U. S. 130 (1979), held that conviction of a nonpetty criminal offense by a nonunanimous six-person jury violates the accused's right to trial by jury guaranteed by the Sixth and Fourteenth Amendments. The issue Page 447 U. S. 325 in this case is whether the constitutional principle announced in Burch is to be given retroactive application.IOn July 31, 1978, petitioner Darnell Brown was charged by bill of information in Orleans Parish with simple burglary, a felony punishable by confinement in the parish prison or state penitentiary for a maximum term of 12 years. La.Rev.Stat.Ann. § 14:62 (West Supp. 1979). At the time, the Louisiana Constitution and Code of Criminal Procedure provided that such crimes should be tried by a jury of six persons, five of whom must concur to render a verdict. [Footnote 1] Before trial, petitioner filed a motion to quash pursuant to Art. 532 (9) of the Louisiana Code of Criminal Procedure, arguing that his"due Page 447 U. S. 326 process rights under the Sixth and the Fourteenth Amendments to the United States Constitution as enunciated in Ballew v. Georgia, [435 U.S. 223 (1978),] will be violated by a less than unanimous vote by a six person jury."App. 5. Petitioner therefore requested the trial judge to order a jury of 12 or, in the alternative, to require a unanimous verdict of the jury of 6.Petitioner's motion was denied, and on August 23, his trial commenced before a six-member jury. That same afternoon, after deliberating for approximately one hour, the jury returned a verdict of guilty. At petitioner's request, the court polled the jurors and ascertained that their vote was 5 to 1 to convict. Sentencing was set for August 30, at which time petitioner renewed his objection to the nonunanimous six-person verdict by a motion for new trial. The trial judge again denied the motion and sentenced petitioner to a term of 22 years' imprisonment at hard labor. [Footnote 2]Petitioner appealed his conviction to the Louisiana Supreme Court, assigning as principal error the trial judge's refusal to grant the motion to quash. On April 17, 1979, while petitioner's case was still pending on direct review in the Louisiana courts, Burch v. Louisiana, supra, was decided, holding unconstitutional those provisions of the Louisiana Constitution and Code of Criminal Procedure that sanctioned conviction of a nonpetty offense by a nonunanimous jury of six. Some five weeks later, on May 21, 1979, the Louisiana Supreme Court affirmed petitioner's conviction. Although it implicitly acknowledged that Burch requires unanimous verdicts by six-person juries in all future prosecutions of simple burglary, [Footnote 3] the court nonetheless concluded, without elaboration, Page 447 U. S. 327 that "the rule of Burch, supra, should not be applied retroactively to juries empaneled prior to the date of the Burch decision." 371 So. 2d 746, 748 (1979) (emphasis in original). We granted certiorari. 444 U.S. 990 (1979). We reverse.IILinkletter v. Walker, 381 U. S. 618 (196), was the first instance in which the Court declined to apply a new doctrine respecting one of the provisions of the Bill of Rights retroactively for the benefit of a previously convicted defendant. In the intervening 15 years, we have often considered the question of the retroactivity of decisions expounding new constitutional rules of criminal procedure, and have endeavored to elaborate appropriate standards for determining which rules are to be accorded retrospective and which only prospective effect. From the welter of case law that has developed in this area, several unequivocal principles emerge to guide our analysis in the present case.It is by now uncontroverted that "the Constitution neither prohibits nor requires retrospective effect." Id. at 381 U. S. 629. Thus, although, before Linkletter, new constitutional rules had been applied to cases that had become final before promulgation of the rule, see id. at 381 U. S. 628, and n. 13, that decision firmly settled that,"in appropriate cases, the Court may in the interest of justice make the rule prospective . . . where the exigencies of the situation require such an application."Id. at 381 U. S. 628; Johnson v. New Jersey, 384 U. S. 719, 384 U. S. 726-727 (1966).Similarly, it is clear that resolution of the question of retroactivity does not automatically turn on the particular provision of the Constitution on which the new prescription is based."Each constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved."Id. at 384 U. S. 728. Accordingly, the test consistently Page 447 U. S. 328 employed by the Court to decide whether a new constitutional doctrine should be applied retroactively contemplates the consideration of three criteria:"(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."Stovall v. Denno, 388 U. S. 293, 388 U. S. 297 (1967).Moreover, our decisions establish that "[f]oremost among these factors is the purpose to be served by the new constitutional rule," Desist v. United States, 394 U. S. 244, 394 U. S. 249 (1969), and that we will give controlling significance to the measure of reliance and the impact on the administration of justice "only when the purpose of the rule in question [does] not clearly favor either retroactivity or prospectivity." Id. at 394 U. S. 251; Michigan v. Payne, 412 U. S. 47, 412 U. S. 55 (1973); see also Hankerson v. North Carolina, 432 U. S. 233, 432 U. S. 242-244 (1977); Adams v. Illinois, 405 U. S. 278, 405 U. S. 280 (1972) (plurality opinion of BRENNAN, J.)."Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truthfinding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances."Williams v. United States, 401 U. S. 646, 401 U. S. 653 (1971) (plurality opinion of WHITE, J.). Accord, Hankerson v. North Carolina, supra at 432 U. S. 243; Gosa v. Mayden, 413 U. S. 665, 413 U. S. 679 (1973) (plurality opinion of BLACKMUN, J.); Ivan v. v. City of New York, 407 U. S. 203, 407 U. S. 204 (1972).Finally, we have recognized that the extent to which the purpose of a new constitutional rule requires its retroactive application "is necessarily a matter of degree." Johnson v. New Jersey, supra at 384 U. S. 729. Constitutional protections are Page 447 U. S. 329 frequently fashioned to serve multiple ends; while a new standard may marginally implicate the reliability and integrity of the factfinding process, it may have been designed primarily to foster other, equally fundamental values in our system of jurisprudence. [Footnote 4] Not every rule that "tends incidentally" to avoid unfairness at trial must be accorded retroactive effect. Gosa v. Mayden, supra at 413 U. S. 60 (plurality opinion of BLACKMUN, J.). So, too, additional safeguards may already exist that minimize the likelihood of past injustices. [Footnote 5] In short, "[t]he extent to which a condemned practice infects the integrity of the truth-determining process at trial is a question of probabilities.'" Stovall v. Denno, supra, at 388 U. S. 298 (quoting Johnson v. New Jersey, supra, at 384 U. S. 729). And only when an assessment of those probabilities indicates that the condemned practice casts doubt upon the reliability of the determinations of guilt in past criminal cases must the new procedural rule be applied retroactively. [Footnote 6] Page 447 U. S. 330IIIWith these principles in mind, then, we turn to consideration of the issue presented by this case: whether the rule of Burch v. Louisiana must be given retroactive effect. We conclude that it must.AThe right to jury trial guaranteed by the Sixth and Fourteenth Amendments "is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants." Duncan v. Louisiana, 391 U. S. 145, 391 U. S. 158 (1968). Trial by jury in serious criminal cases has long been regarded as an indispensable protection against the possibility of governmental oppression; the history of the jury's development demonstrates"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."Williams v. Florida, 399 U. S. 78, 399 U. S. 87 (1970)."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."Id. at 399 U. S. 100.Although we have held that the constitutional guarantee of trial by jury prescribes neither the precise number that can constitute a jury, Williams v Florida, supra, (six-person jury does not violate Sixth and Fourteenth Amendments), nor Page 447 U. S. 331 the exact proportion of the jury that must concur in the verdict, Apodaca v. Oregon, 406 U. S. 404 (1972) (10-to-2 vote in state trial does not violate the Constitution), we have also declared that there do exist size and unanimity limits that cannot be transgressed if the essence of the jury trial right is to be maintained. Thus, Ballew v. Georgia, 435 U. S. 223 (1978), held that a reduction in the size of a jury to below six persons in nonpetty criminal cases raises such substantial doubts as to the fairness of the proceeding and the jury's ability to represent the true sense of the community that it deprives the accused of his right to trial by jury. For "much the same reasons," we concluded in Burch that "conviction for a nonpetty offense by only five members of a six-person jury presents a similar threat to preservation of the substance of the jury trial guarantee," and hence violates the Sixth Amendment as applied to the States through the Fourteenth. 441 U.S. at 441 U. S. 138. Though the line separating the permissible jury practice from the impermissible may not be the brightest, cf. Burch v. Louisiana, supra at 441 U. S. 137; Ballew v. Georgia, 435 U.S. at 435 U. S. 231-232 (opinion of BLACKMUN, J.); id. at 435 U. S. 245-246 (opinion of POWELL, J.), a line must be drawn somewhere, and the constitutional inviolability of that border must be scrupulously respected lest the purpose and functioning of the jury be seriously impaired.We think it apparent that the rationale behind the constitutional rule announced in Burch mandates its retroactive application. MR. JUSTICE BLACKMUN's opinion in Ballew [Footnote 7] Page 447 U. S. 332 cataloged the several considerations that led the Court to conclude that the operation of the jury was inhibited to a constitutionally significant degree by reducing its size to five members. Prominent among these concerns was the recognition, supported by a number of empirical studies, [Footnote 8] that a decline in jury size leads to less accurate factfinding and a greater risk of convicting an innocent person. Id. at 435 U. S. 232-235. [Footnote 9] In addition, statistical and empirical data established that, because of a concomitant decrease in the number of hung juries, a reduction in the size of the jury panel in criminal cases unfairly disadvantages one side -- the defense. Id. at 435 U. S. 236. [Footnote 10] Lastly, the opinion noted that the opportunity for meaningful and appropriate minority representation diminishes with the size of the jury. Id. at 435 U. S. 236-237. [Footnote 11] Page 447 U. S. 333Identical considerations underlay our decision in Burch. The threat which conviction by a 5-to-0 verdict poses to the fairness of the proceeding and the proper role of the jury is not significantly alleviated when conviction is, instead, obtained by the addition of a sixth, but dissenting, ballot. When the requirement of unanimity is abandoned, the vote of this "additional" juror is essentially superfluous. The prosecution's demonstrated inability to convince all the jurors of the accused's guilt certainly does nothing to allay our concern about the reliability and accuracy of the jury's verdict. And while the addition of another juror to the five-person panel may statistically increase the representativeness of that body, relinquishment of the unanimity requirement removes any guarantee that the minority voices will actually be heard. [Footnote 12] Page 447 U. S. 334In sum, Burch established that the concurrence of six jurors was constitutionally required to preserve the substance of the jury trial right and assure the reliability of its verdict. It is difficult to envision a constitutional rule that more fundamentally implicates "the fairness of the trial -- the very integrity of the factfinding process." Linkletter v. Walker, 381 U.S. at 381 U. S. 639. "The basic purpose of a trial is the determination of truth," Tehan v. United States ex rel. Shott, 382 U. S. 406, 382 U. S. 416 (1966), and it is the jury to whom we have entrusted the responsibility for making this determination in serious criminal cases. Any practice that threatens the jury's ability properly to perform that function poses a similar threat to the truth-determining process itself. The rule in Burch was directed toward elimination of just such a practice. Its purpose, therefore, clearly requires retroactive application. [Footnote 13] Page 447 U. S. 335BDue regard for countervailing considerations -- the State's good faith reliance on the old standards and the impact of retroactivity on the administration of justice -- does not counsel a contrary result. The element of justifiable reliance on pre-Burch standards is minimal here. Unlike other cases that have been accorded prospective effect only, Burch did not overrule any prior decisions of this Court or invalidate a practice of heretofore unquestioned legitimacy. See, e.g., Desist v. United States, 394 U.S. at 394 U. S. 250-251; Stovall v. Denno, 388 U.S. at 388 U. S. 300; Tehan v. United States ex rel Shott, supra at 382 U. S. 417. "Therefore, to build a case for good faith reliance, the State must wring from our decision[s] the negative implication" that conviction by a nonunanimous six-person jury does not offend the Sixth Amendment's guarantee. See Adams v. Illinois, 405 U.S. at 405 U. S. 293 (Douglas, J., dissenting). Yet if any implication is to be drawn from our opinions prior to Burch, it could only be that such a procedure was of doubtful constitutionality. Williams v. Florida, 399 U. S. 78 (1970), for example, highlighted the fact that the Page 447 U. S. 336 six-member jury approved in that case was required to render a unanimous verdict. Id. at 399 U. S. 100, and n. 46. And Burch's rule was distinctly foreshadowed by our decision in Ballew, which was handed down more than five months before petitioner's trial and which was specifically cited to the trial court as mandating unanimity in the verdict of a six-member jury. See supra at 447 U. S. 325-326. Cf. Berger v. California, 393 U. S. 314, 393 U. S. 315 (1969).Similarly, we are confident that retroactive application of the Burch rule will not have a devastating impact on the administration of the criminal law. It appears that, by 1979, only two States -- Louisiana and Oklahoma -- permitted conviction of nonpetty offenses by a nonunanimous six-member jury, see Burch v. Louisiana, 441 U.S. at 441 U. S. 138, and n. 12, and Louisiana, at least, did not institute its scheme until 1975. [Footnote 14] Furthermore, today's decision will not affect the validity of all convictions obtained under Louisiana's unconstitutional jury practice during that 4-year period, but only those in which it can be shown that the vote was, in fact, less than unanimous. Thus, the number of persons who would have to Page 447 U. S. 337 be retried or released does not approach the magnitude involved in some of our previous cases. See, e.g., Linkletter v. Walker, 381 U.S. at 381 U. S. 637 (retroactive application would "tax the administration of justice to the utmost"); Tehan v. United States ex rel. Shott, 382 U.S. at 382 U. S. 419 ("an impact upon the administration of their criminal law so devastating as to need no elaboration"); DeStefano v. Woods, 392 U. S. 631, 392 U. S. 634 (1968). What little disruption to the administration of justice results from retroactive application of Burch "must be considered part of the price we pay for former failures to provide fair procedures." Adams v. Illinois, supra at 405 U. S. 297 (Douglas, J., dissenting).Accordingly, the judgment of the Supreme Court of Louisiana is reversed. The case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtBrown v. Louisiana, 447 U.S. 323 (1980)Brown v. LouisianaNo. 79-5364Argued March 25, 1980Decided June 16, 1980447 U.S. 323SyllabusWhile petitioner's appeal from his felony conviction -- based on a nonunanimous six-person jury verdict -- was pending in the Louisiana Supreme Court, Burch v. Louisiana, 441 U. S. 130, was decided, holding unconstitutional those provisions of the Louisiana Constitution and Code of Criminal Procedure that sanctioned conviction of a nonpetty offense by a nonunanimous jury of six. The Louisiana Supreme Court thereafter affirmed petitioner's conviction, holding that the rule of Burch v. Louisiana, supra, should not be applied retroactively to cases tried by juries empaneled prior to the date of that decision.Held: The judgment is reversed, and the case is remanded. Pp. 447 U. S. 327-337; 337.371 So. 2d 746, reversed and remanded.MR. JUSTICE BRENNAN, joined by MR. JUSTICE STEWART, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN, concluded that the constitutional principle announced in Burch v. Louisiana, supra, that conviction of a nonpetty criminal offense in a state court by a nonunanimous six-person jury violates the accused's right to trial by jury guaranteed by the Sixth Amendment as applied to the States through the Fourteenth Amendment, should be given retroactive application. Pp. 447 U. S. 327-337.(a) The test for deciding whether a new constitutional doctrine should be applied retroactively contemplates the consideration of (i) the purpose to be served by the new doctrine; (ii) the extent of the reliance by law enforcement authorities on the old standards; and (iii) the impact on the administration of justice of a retroactive application of the new standards. Foremost among these factors is the first, and controlling significance will be given to factors (ii) and (iii) only when factor (i) does not clearly favor retroactivity or prospectivity. Pp. 447 U. S. 327-329.(b) Burch established that the concurrence of six jurors was constitutionally required to preserve the substance of the jury trial right and assure the reliability of the jury's verdict. The Burch rule's purpose to eliminate a practice that threatened the jury's ability properly to perform its function of determining the truth in serious criminal cases clearly requires retroactive application. Pp. 447 U. S. 330-334.(c) Due regard for the State's good faith reliance on the old standards and the impact of retroactivity on the administration of justice does not Page 447 U. S. 324 counsel a contrary result. Here, the element of justifiable reliance on pre-Burch standards is minimal, since, unlike other cases that have been accorded prospective effect only, Burch did not overrule any prior decisions of this Court or invalidate a practice of heretofore unquestioned legitimacy. Similarly, retroactive application of the Burch rule here will not have a devastating impact on the administration of criminal law, since it appears that, by 1979, only two States permitted conviction of nonpetty offenses by a nonunanimous six-member jury, and that one of them -- Louisiana -- did not institute its scheme until 1975. Moreover, the decision in this case will not affect the validity of all convictions obtained under Louisiana's unconstitutional jury practice during that 4-year period, but only those in which it can be shown that the verdict was less than unanimous. 447 U. S. 335-337.MR. JUSTICE POWELL, joined by MR. JUSTICE STEVENS, being of the view that new constitutional rules should apply retroactively in cases still pending on direct review, such as the instant case, concurred in the judgment. P. 447 U. S. 337.BRENNAN, J., announced the judgment of the Court and delivered an opinion, in which STEWART, MARSHALL, and BLACKMUN, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, in which STEVENS, J., joined, post, p. 447 U. S. 337. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and WHITE, J., joined, post, p. 447 U. S. 337.

1982_81-1664

JUSTICE POWELL delivered the opinion of the Court.The issue is whether an employer may discipline union officials more severely than other union employees for participating in an unlawful work stoppage.IMetropolitan Edison Company began construction of a two-unit nuclear generating station at Three Mile Island in 1968. Over half of its employees were represented by the International Brotherhood of Electrical Workers. Article XI of the collective bargaining agreement between the company and the union provided:"The Brotherhood and its members agree that, during the term of this agreement, there shall be no strikes or walkouts by the Brotherhood or its members, and the Company agrees that there shall be no lockouts of the Brotherhood or its members, it being the desire of both parties to provide uninterrupted and continuous service to the public."App. to Pet. for Cert. A-32. Despite this no-strike clause, union members participated in four unlawful work stoppages between 1970 and 1974. [Footnote 1] On each occasion, the company disciplined the local union officials more severely than the other participants. Twice the union filed a grievance because of the disparate treatment accorded Page 460 U. S. 696 its officials, and in both cases the arbitrators upheld the company's actions. [Footnote 2] They found that union officials have an affirmative duty to uphold the bargaining agreement. The breach of that duty justified the company's imposition of more severe sanctions.On August 30, 1977, an unrelated union, the Operating Engineers, set up an informational picket line at the entrance to the Three Mile Island construction site. When members of the Electrical Workers union refused to cross the picket line, company officials spoke to David Lang, the local union president. They told him that he had a duty as a union official to ensure that the Electrical Workers' members complied with the no-strike clause. It was the company's view that Lang could fulfill this duty only by crossing the picket line, and thereby inducing other employees to follow.Although instructed repeatedly to cross the line, Lang declined to do so. He was aware that the other employees were unlikely to follow him, and sought instead to learn the cause of the picket line. On being told that the line would not be removed unless the Operating Engineers' business agent ordered it, Lang attempted to reach him. He also directed Gene Light, the Electrical Workers' vice-president, to Page 460 U. S. 697 continue his efforts to persuade the pickets to remove their line. After approximately four hours, Light and Lang were able to negotiate a settlement between the Operating Engineers and Metropolitan Edison. The settlement required the company to establish a separate entrance to the construction site. When this was done, the picket line came down and the union's members returned to work.Metropolitan Edison disciplined all of its employees who refused to cross the picket line by imposing 5- to 10-day suspensions. Light and Lang, however, each received 25-day suspensions, and were warned that future participation in any unlawful work stoppage would result in their immediate discharge. The company explained that the additional penalty was imposed because of their failure as union officials to make "every bona fide effort to prevent the unlawful work stoppage," specifically their failure to attempt to end the strike by crossing the picket line. [Footnote 3]The union filed an unfair labor practice charge, and the Regional Director for the National Labor Relations Board issued a complaint against the company. The Administrative Law Judge concluded that, under Precision Castings Co., 233 N.L.R.B. 183 (1977), selective discipline of union officials violated §§ 8(a)(1) and (3) of the National Labor Relations Act, 61 Stat. 140, as amended, 29 U.S.C. §§ 158(a)(1) and Page 460 U. S. 698 (3). [Footnote 4] The Board affirmed the Administrative Law Judge's conclusions and findings. Metropolitan Edison Co., 252 N.L.R.B. 1030 (1980).On petition for review and cross-petition for enforcement, the Court of Appeals for the Third Circuit enforced the Board's order. 663 F.2d 478, 484 (1981). It held that an employer may impose greater discipline on union officials only when the collective bargaining agreement specifies that the officials have an affirmative duty to prevent illegal work stoppages. Id. at 482. If the agreement does not provide for such a duty, any disparate treatment of union officials violates § 8(a)(3). The court reasoned that, in the absence of a clear contractual duty, requiring a union official to take affirmative steps to end an illegal work stoppage would place him in an intolerable position. If he failed to follow the company's directions, he would place his job in jeopardy. If he complied with the company's demands and crossed the picket line, he would lose the respect and support of the union members. Id. at 482-483.The Court of Appeals rejected the company's argument that the two earlier arbitration awards were sufficient to impose a contractual duty on the union officials to cross the Page 460 U. S. 699 picket line. The court held that it was not bound by these arbitration decisions in determining the extent of the officials' contractual obligations. Id. at 483. It noted that a previous arbitration decision normally would not bind an arbitrator later construing the same collective bargaining agreement. Absent an express contractual provision making earlier arbitration decisions binding, [Footnote 5] the court declined to give these decisions any greater effect than an arbitrator would. Id. at 483-484.We granted certiorari to consider these recurring questions of federal labor law. 457 U.S. 1116 (1982). We now affirm.IIThis case does not present the question whether an employer may impose stricter penalties on union officials who take a leadership role in an unlawful strike. The Administrative Law Judge found that neither Light nor Lang acted as a strike leader. [Footnote 6] Nor does this case question the employer's right to discipline union officials who engage in unprotected activity. Neither the union nor the Board has argued that union officials who fail to honor a no-strike clause are immunized from being disciplined in the same manner as Page 460 U. S. 700 other strike participants. The narrow question presented is whether an employer unilaterally may define the actions a union official is required to take to enforce a no-strike clause and penalize him for his failure to comply.Metropolitan Edison advances two arguments to justify the additional sanctions it imposed on Light and Lang. It contends first that its actions did not violate § 8(a)(3) because a union official has a duty to ensure compliance with the terms of the collective bargaining agreement. Breach of this duty justifies the imposition of an additional penalty on union officials. Alternatively, the company contends that a union, in effect, may waive any statutory protection that otherwise would be accorded its officials by agreeing that they will undertake specific action to assure compliance with the no-strike clause. In this case, the arbitration awards and the union's acquiescence in the harsher sanctions imposed on its officials are sufficient to establish a clear contractual duty. We examine these arguments in turn.ASection 8(a)(3) makes it an unfair labor practice for an employer,"by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization."29 U.S.C. § 158(a)(3). By its terms, the statute requires proof that disparate treatment has been accorded union members and that the employer's action is likely to discourage participation in union activities. See NLRB v. Brown, 380 U. S. 278, 380 U. S. 286 (1965). Congress, however, did not intend to make unlawful all acts that might have the effect of discouraging union membership. See American Ship Building Co. v. NLRB, 380 U. S. 300, 380 U. S. 311 (1965). Rather, the intention was to forbid only those acts that are motivated by an antiunion animus. See, e.g., NLRB v. Great Dane Trailers, Inc., 388 U. S. 26, 388 U. S. 33 (1967); NLRB v. Brown, supra, at 380 U. S. 286-287. Page 460 U. S. 701In determining whether Metropolitan Edison's conduct constitutes a § 8(a)(3) violation, we are guided by well-established precedent. Where there is direct evidence of an employer's antiunion motive, the Court has recognized that otherwise legitimate actions may constitute unfair labor practices. [Footnote 7] See NLRB v. Erie Resistor Corp., 373 U. S. 221, 373 U. S. 227 (1963). Where, as here, there is only circumstantial evidence of intent to discriminate, identification of a § 8(a)(3) violation involves a more difficult inquiry. Intent must be inferred from conduct. But an employer may take actions in the course of a labor dispute that present a possible complex of motives, see id. at 373 U. S. 228, and it is often difficult to identify the true motive.In these situations, the Court has divided an employer's conduct into two classes. See NLRB v. Great Dane Trailers, Inc., 388 U.S. at 388 U. S. 33-34. Some conduct is so "inherently destructive of employee interests'" that it carries with it a strong inference of impermissible motive. See id. at 388 U. S. 33 (quoting NLRB v. Brown, supra, at 380 U. S. 287). In such a situation, even if an employer comes forward with a nondiscriminatory explanation for its actions, the Board"may nevertheless draw an inference of improper motive from the conduct itself and exercise its duty to strike the proper balance between the asserted business justifications and the invasion of employee rights in light of the Act and its policy."388 U.S. at 388 U. S. 33-34. On the other hand, if the adverse effect of the discriminatory conduct on employee rights is"'comparatively slight,' an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substantial business justifications for the conduct."Id. at 388 U. S. 34 (emphasis in original). Congress Page 460 U. S. 702 has entrusted this determination in the first instance to the Board, see NLRB v. Erie Resistor Corp., supra, at 373 U. S. 236, and we turn now to its decisions.BThe Board has found that disciplining union officials more severely than other employees for participating in an unlawful work stoppage "is contrary to the plain meaning of Section 8(a)(3), and would frustrate the policies of the Act if allowed to stand." Precision Castings Co., 233 N.L.R.B. at 184. [Footnote 8] This conduct, in the Board's view, is "inherently destructive" of protected individual rights, because it discriminates solely on the basis of union status. See Consolidation Coal Co., 263 N.L.R.B. 1306 (1982); Indiana & Michigan Electric Co., 237 N.L.R.B. 226 (1978), enf. denied, 599 F.2d 227 (CA7 1979). The Board has concluded that an employer's contractual right to be free of unauthorized strikes does not counterbalance the "discriminatory effects of singling out union officers for especially harsh treatment." Consolidation Coal Co., 263 N.L.R.B. at 1309. Disciplining Page 460 U. S. 703 union officials discriminatorily may have only an indirect effect on the rank and file's decision to strike, but it may well deter qualified employees from seeking union office. See ibid.We defer to the Board's conclusion that conduct such as Metropolitan Edison's adversely affects protected employee interests. Section 8(a)(3) not only proscribes discrimination that affects union membership, it also makes unlawful discrimination against employees who participate in concerted activities protected by § 7 of the Act. See Radio Officers v. NLRB, 347 U. S. 17, 347 U. S. 39-40 (1954). Holding union office clearly falls within the activities protected by § 7, see General Motors Corp., 218 N.L.R.B. 472, 477 (1975), and there can be little doubt that an employer's unilateral imposition of discipline on union officials inhibits qualified employees from holding office, see Szewczuga v. NLRB, 222 U.S.App.D.C. 336, 347, 686 F.2d 962, 973 (1982).Determining that such conduct adversely affects protected employee interests does not conclude the inquiry. If the employer comes forward with a legitimate explanation for its conduct, the Board must "strike the proper balance between the asserted business justifications and the invasion of employee rights." NLRB v. Great Dane Trailers, Inc., supra, at 388 U. S. 33-34. In this case, the company has argued that its actions were justified because there is an implied duty on the part of the union officials to uphold the terms of the collective bargaining agreement. Unquestionably there is support for the proposition that union officials, as leaders of the rank and file, have a legal obligation to support the terms of the contract and to set a responsible example for their members. See Indiana & Michigan Electric Co. v. NLRB, 599 F.2d at 230-232. And in view of the disruptive effects of wildcat strikes, the importance of ensuring compliance with no-strike clauses is self-evident. See Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235, 398 U. S. 248-249, and n. 17 (1970); Complete Auto Transit, Inc. v. Reis, 451 U. S. 401, 451 U. S. 418-419 Page 460 U. S. 704 (1981) (POWELL, J., concurring in part and concurring in judgment). But it does not follow that an employer may assume that a union official is required to attempt to enforce a no-strike clause by complying with the employer's directions and impose a penalty on the official for declining to comply. As the Board has concluded, the imposition of such a penalty would violate § 8(a)(3).We think the Board's view is consistent with the policies served by the Act."The entire process of collective bargaining is structured and regulated on the assumption that '[t]he parties . . . proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest.'"General Building Contractors Assn. v. Pennsylvania, 458 U. S. 375, 458 U. S. 394 (1982) (quoting NLRB v. Insurance Agents, 361 U. S. 477, 361 U. S. 488 (1960)). Congress has sought to ensure the integrity of this process by preventing both management and labor's representatives from being coerced in the performance of their official duties. [Footnote 9] See Florida Power & Light Co. v. Electrical Workers, 417 U. S. 790, 417 U. S. 810-811 (1974); id. at 417 U. S. 814 (WHITE, J., dissenting). Cf. 29 U.S.C. § 158(a)(2) (specifying employer domination of unions as an unfair labor practice). If, as the company urges, an employer could define unilaterally Page 460 U. S. 705 the actions that a union official is required to take, it would give the employer considerable leverage over the manner in which the official performs his union duties. Failure to comply with the employer's directions would place the official's job in jeopardy. But compliance might cause him to take actions that would diminish the respect and authority necessary to perform his job as a union official. This is the dilemma Congress sought to avoid. We believe the Board's decision furthers these policies, and uphold its determination.IIIThe company argues that, even if § 8(a)(3) would prohibit it from imposing a more severe penalty on union officials than on other employees, the union, in effect, has waived the protection afforded by the statute. The substance of this contention is that, in this case, the prior arbitration awards and the union's acquiescence in the harsher sanctions imposed on its officials are sufficient to establish a corresponding contractual duty. We are met at the outset, however, by the union's response that the statutory right to be free from discrimination may never be waived. We examine first the union s argument.AThis Court long has recognized that a union may waive a member's statutorily protected rights, including "his right to strike during the contract term, and his right to refuse to cross a lawful picket line." NLRB v. Allis-Chalmers Manufacturing Co., 388 U. S. 175, 388 U. S. 180 (1967) (footnotes omitted). Such waivers are valid because they "rest on the premise of fair representation,' and presuppose that the selection of the bargaining representative `remains free.'" NLRB v. Magnavox Co., 415 U. S. 322, 415 U. S. 325 (1974) (quoting Mastro Plastics Corp. v. NLRB, 350 U. S. 270, 350 U. S. 280 (1956)); cf. NLRB v. Allis-Chalmers Manufacturing Co., supra, at 388 U. S. 180-181. Waiver should not undermine these premises. Thus, a union may bargain away its members' economic rights, but it may not surrender rights that impair the employees' choice of Page 460 U. S. 706 their bargaining representative. See NLRB v. Magnavox Co., supra, at 415 U. S. 325.We think a union's decision to bind its officials to take affirmative steps to end an unlawful work stoppage is consistent with "the premise of fair representation." [Footnote 10] Such a waiver imposes no constraints on the employees' ability to choose which union will represent them. Imposition of this duty is more closely related to the economic decision a union makes when it waives its members' right to strike. It merely requires union officials to take steps that are ancillary to the union's promise not to strike, and provides the employer with an additional means of enforcing this promise.The union argues that, while a union may waive rights that are collective in nature, such as the right to strike, it may not waive individual rights such as the right to hold union office. [Footnote 11] In Ford Motor Co. v. Huffman, 345 U. S. 330 (1953), Page 460 U. S. 707 however, the Court recognized that, in securing the good of the entire bargaining unit, some differences in the treatment of individual union members might occur:"Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion."Id. at 345 U. S. 338.No-strike provisions, central to national labor policy, often have proved difficult to enforce. See Boys Markets, Inc. v. Retail Clerks, 398 U.S. at 398 U. S. 248-249, and n. 17; Complete Auto Transit, Inc. v. Reis, 451 U.S. at 451 U. S. 423-424 (POWELL, J., concurring in part and concurring in judgment). A union and an employer reasonably could choose to secure the integrity of a no-strike clause by requiring union officials to take affirmative steps to end unlawful work stoppages. Indeed, a union could choose to bargain away this statutory protection to secure gains it considers of more value to its members. Its decision to undertake such contractual obligations promotes labor peace, and clearly falls within the range of reasonableness accorded bargaining representatives.BWe consider finally whether the union waived its officials' rights. In Mastro Plastics Corp., supra, the question was whether a general no-strike provision waived the specific right to strike over an unfair labor practice. While reserving Page 460 U. S. 708 the question whether a union might waive this right if it were "explicitly stated," the Court determined that "there is no adequate basis for implying [the] existence [of waiver] without a more compelling expression of it than appears in . . . this contract." 350 U.S. at 350 U. S. 283. Thus, we will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is "explicitly stated." More succinctly, the waiver must be clear and unmistakable. [Footnote 12]In this case, Metropolitan Edison does not contend that the general no-strike clause included in the bargaining agreement imposed any explicit duty on the union officials. Rather it argues that the union's failure to change the relevant contractual language in the face of two prior arbitration decisions constitutes an implicit contractual waiver. Not to give these decisions any effect, the company argues, would impair the effectiveness of the dispute resolution process for which the parties bargained.We agree that the grievance-arbitration procedure forms an integral part of the collective bargaining process. See Clayton v. Automobile Workers, 451 U. S. 679, 451 U. S. 686-687 (1981); Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 363 U. S. 578 (1960). And we do not doubt that prior arbitration Page 460 U. S. 709 decisions may be relevant -- both to other arbitrators and to the Board -- in interpreting bargaining agreements. [Footnote 13] But to waive a statutory right the duty must be established clearly and unmistakably. Where prior arbitration decisions have been inconsistent, sporadic, or ambiguous, there would be little basis for determining that the parties intended to incorporate them in subsequent agreements. Assessing the clarity with which a party's duties have been defined, of course, will require consideration of the specific circumstances of each case. Cf. Carbon Fuel Co. v. Mine Workers, 444 U. S. 212, 444 U. S. 221-222 (1979).As noted above, the company argues that, when the prior bargaining agreement was renegotiated, the union's silence manifested a clear acceptance of the earlier arbitration decisions. During the history of collective bargaining between these two parties, however, there were only two arbitration decisions that imposed a higher duty on union officials. We do not think that two arbitration awards establish a pattern of decisions clear enough to convert the union's silence into binding waiver. This is especially so in light of the provision in the bargaining agreement that "[a] decision [by an arbitrator] shall be binding . . . for the term of this agreement." See n 5, supra (emphasis added). We conclude that there is Page 460 U. S. 710 no showing that the parties intended to incorporate the two prior arbitration decisions into the subsequent agreement.IVWe accept the Board's conclusion that the imposition of more severe sanctions on union officials for participating in an unlawful work stoppage violates § 8(a)(3). While a union may waive this protection by clearly imposing contractual duties on its officials to ensure the integrity of no-strike clauses, we find that no waiver occurred here. Accordingly, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtMetropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983)Metropolitan Edison Co. v. National Labor Relations BoardNo. 81-1664Argued January 11, 1983Decided April 4, 1983460 U.S. 693SyllabusDespite a no-strike clause in the collective bargaining agreement between petitioner employer and the Electrical Workers union, which represented over half of petitioner's employees, union members participated in four unlawful work stoppages between 1970 and 1974, and on each occasion petitioner disciplined the local union officials more severely than the other participants. Twice the union filed a grievance because of the disparate treatment accorded its officials, and in both cases the arbitrators upheld petitioner's actions, finding that union officials have an affirmative duty to uphold the bargaining agreement, the breach of which duty justified petitioner's imposition of more severe sanctions. Subsequently, in 1977, an unrelated union, the Operating Engineers, set up an informational picket line at the entrance to the site where petitioner was constructing a nuclear generating station. Electrical Workers union members refused to cross the picket line. Eventually, after a settlement between the Operating Engineers and petitioner was reached, the picket line came down and the union's members returned to work. Petitioner then disciplined all of its employees who had refused to cross the picket line by imposing 5- to 10-day suspensions, but imposed 25-day suspensions on two local Electrical Workers officials for failure to attempt to end the strike by crossing the picket line. The Electrical Workers union filed an unfair labor practice charge against petitioner, and the National Labor Relations Board affirmed the Administrative Law Judge's holding that the selective discipline of union officials violated § 8(a)(3) of the National Labor Relations Act, which makes it an unfair labor practice for an employer"by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization."The Court of Appeals enforced the Board's order, holding that an employer may impose greater discipline on union officials only when the collective bargaining agreement specifies that the officials have an affirmative duty to prevent illegal work stoppages, and that, if the agreement does not provide for such a duty, any disparate treatment of union officials violates § 8(a)(3). The court rejected petitioner's argument that the two earlier arbitration Page 460 U. S. 694 awards were sufficient to impose a contractual duty on the union officials to cross the picket line.Held: In the absence of an explicit contractual duty, the imposition of more severe sanctions on union officials than on other employees for participating in an unlawful work stoppage violates § 8(a)(3). Pp. 460 U. S. 699-710.(a) Section 8(a)(3) not only proscribes discrimination that affects union membership, it also makes unlawful discrimination against employees who participate in concerted activities protected by § 7 of the Act. Holding union office clearly falls within such protected activities, and an employer's unilateral imposition of discipline on union officials inhibits qualified employees from holding office. While the disruptive effect of wildcat strikes makes it important to ensure compliance with no-strike clauses, it does not follow that an employer may assume that a union official is required to attempt to enforce a no-strike clause by complying with the employer's directions, and may impose a penalty on the official for declining to comply. The imposition of such a penalty violates § 8(a)(3). The Board's decision here furthers Congress' policy in seeking to avoid the dilemma presented to the union official whereby his failure to comply with the employer's direction would place his job in jeopardy but compliance might cause him to take actions that would diminish the respect and authority necessary to perform his job as a union official. Pp. 460 U. S. 699-705.(b) While a union may waive the protection afforded union officials against the imposition of more severe sanctions than those imposed on other employees for participating in an unlawful work stoppage, no waiver occurred here. Such a waiver must be clear and unmistakable, and the two prior arbitration awards did not establish a pattern of decisions clear enough to convert the union's silence after those awards were made into a binding waiver. There is no showing that the parties intended to incorporate those awards into the subsequent agreement. Pp. 460 U. S. 705-710.663 F.2d 478, affirmed. POWELL, J., delivered the opinion for a unanimous Court. Page 460 U. S. 695

1971_71-5255

MR. JUSTICE POWELL delivered the opinion of the Court.Although a speedy trial is guaranteed the accused by the Sixth Amendment to the Constitution, [Footnote 1] this Court has dealt with that right on infrequent occasions. See Beavers v. Haubert, 198 U. S. 77 (1905); Pollard v. United States, 352 U. S. 354 (1957); United States v. Ewell, 383 U. S. 116 (1966); United States v. Marion, 404 U. S. 307 (1971). See also United States v. Provoo, 17 F.R.D. 183 (D. Md.), aff'd, 30 U.S. 857 (1955). The Court's opinion in Klopfer v. North Carolina, 386 U. S. 213 (1967), established that the right to a speedy trial is "fundamental," and is imposed by the Due Process Clause of the Fourteenth Amendment on the States. [Footnote 2] See Smith v. Hooey, 393 U. S. 374 (1969); Dickey v. Florida, 398 U. S. 30 (1070). As MR. JUSTICE BRENNAN Page 407 U. S. 516 pointed out in his concurring opinion in Dickey, in none of these cases have we attempted to set out the criteria by which the speedy trial right is to be judged. 398 U.S. at 398 U. S. 401. This case compels us to make such an attempt.IOn July 20, 1958, in Christian County, Kentucky, an elderly couple was beaten to death by intruders wielding an iron tire tool. Two suspects, Silas Manning and Willie Barker, the petitioner, were arrested shortly thereafter. The grand jury indicted them on September 15. Counsel was appointed on September 17, and Barker's trial was set for October 21. The Commonwealth had a stronger case against Manning, and it believed that Barker could not be convicted unless Manning testified against him. Manning was naturally unwilling to incriminate himself. Accordingly, on October 23, the day Silas Manning was brought to trial, the Commonwealth sought and obtained the first of what was to be a series of 16 continuances of Barker's trial. [Footnote 3] Barker made no objection. By first convicting Manning, the Commonwealth would remove possible problems of self-incrimination, and would be able to assure his testimony against Barker.The Commonwealth encountered more than a few difficulties in its prosecution of Manning. The first trial ended in a hung jury. A second trial resulted in a conviction, but the Kentucky Court of Appeals reversed because of the admission of evidence obtained by an illegal search. Manning v. Commonwealth, 328 S.W.2d 421 (1959). At his third trial, Manning was again convicted, and the Court of Appeals again reversed Page 407 U. S. 517 because the trial court had not granted a change of venue. Manning v. Commonwealth, 346 S.W.2d 755 (1961). A fourth trial resulted in a hung jury. Finally, after five trials, Manning was convicted, in March, 1962, of murdering one victim, and, after a sixth trial, in December, 1962, he was convicted of murdering the other. [Footnote 4]The Christian County Circuit Court holds three terms each year -- in February, June, and September. Barker's initial trial was to take place in the September term of 1958. The first continuance postponed it until the February, 1959, term. The second continuance was granted for one month only. Every term thereafter for as long a the Manning prosecutions were in process, the Commonwealth routinely moved to continue Barker's case to the next term. When the case was continued from the June, 1959, term until the following September, Barker, having spent 10 months in jail, obtained his release by posting a $5,000 bond. He thereafter remained free in the community until his trial. Barker made no objection, through his counsel, to the first 11 continuances.When, on February 12, 1962, the Commonwealth moved for the twelfth time to continue the case until the following term, Barker's counsel filed a motion to dismiss the indictment. The motion to dismiss was denied two weeks later, and the Commonwealth's motion for a continuance was granted. The Commonwealth was granted further continuances in June, 1962, and September, 1962, to which Barker did not object.In February, 1963, the first term of court following Manning's final conviction, the Commonwealth moved to set Barker's trial for March 19. But on the day scheduled for trial, it again moved for a continuance until the June term. It gave as its reason the illness Page 407 U. S. 518 of the ex-sheriff who was the chief investigating officer in the case. To this continuance, Barker objected unsuccessfully.The witness was still unable to testify in June, and the trial, which had been set for June 19, was continued again until the September term over Barker's objection. This time the court announced that the case would be dismissed for lack of prosecution if it were not tried during the next term. The final trial date was set for October 9, 1963. On that date, Barker again moved to dismiss the indictment, and this time specified that his right to a speedy trial had been violated. [Footnote 5] The motion was denied; the trial commenced with Manning a the chief prosecution witness; Barker was convicted and given a life sentence.Barker appealed his conviction to the Kentucky Court of Appeals, relying in part on his speedy trial claim. The court affirmed. Barker v. Commonwealth, 385 S.W.2d 671 (1964). In February, 1970, Barker petitioned for habeas corpus in the United States District Court for the Western District of Kentucky. Although the District Court rejected the petition without holding a hearing, the court granted petitioner leave to appeal in forma pauperis and a certificate of probable cause to appeal. On appeal, the Court of Appeals for the Sixth Circuit affirmed the District Court. 442 F.2d 1141 (1971). It ruled that Barker had waived his speedy trial claim for the entire period before February, 1963, the date on which the court believed he had first objected to the delay by filing a motion to dismiss. In this belief the court was mistaken, for the record reveals Page 407 U. S. 519 that the motion was filed in February, 1962. The Commonwealth so conceded at oral argument before this Court. [Footnote 6] The court held further that the remaining period after the date on which Barker first raised his claim and before his trial -- which it thought was only eight months but which was actually 20 months -- was not unduly long. In addition, the court held that Barker had shown no resulting prejudice, and that the illness of the ex-sheriff was a valid justification for the delay. We granted Barker's petition for certiorari. 404 U.S. 1037 (1972).IIThe right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system. [Footnote 7] In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes. [Footnote 8] It must be of little comfort to the residents of Christian County, Kentucky, to know that Barker was at large on bail for over four years while accused of a vicious Page 407 U. S. 520 and brutal murder of which he was ultimately convicted. Moreover, the longer an accused is free awaiting trial, the more tempting becomes his opportunity to jump bail and escape. [Footnote 9] Finally, delay between arrest and punishment may have a detrimental effect on rehabilitation. [Footnote 10]If an accused cannot make bail, he is generally confined, as was Barker for 10 months, in a local jail. This contributes to the overcrowding and generally deplorable state of those institutions. [Footnote 11] Lengthy exposure to these conditions "has a destructive effect on human character, and makes the rehabilitation of the individual offender much more difficult." [Footnote 12] At times the result may even be violent rioting. [Footnote 13] Finally, lengthy pretrial detention is costly. The cost of maintaining a prisoner in jail varies from $3 to $9 per day, and this amounts to millions across Page 407 U. S. 521 the Nation. [Footnote 14] In addition, society loses wages which might have been earned, and it must often support families of incarcerated breadwinners.A second difference between the right to speedy trial and the accused's other constitutional rights is that deprivation of the right may work to the accused's advantage. Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof. Thus, unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself.Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. [Footnote 15] As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial. If, for example, the State moves for Page 407 U. S. 522 a 60-day continuance, granting that continuance is not a violation of the right to speedy trial unless the circumstances of the case are such that further delay would endanger the values the right protects. It is impossible to do more than generalize about when those circumstances exist. There is nothing comparable to the point in the process when a defendant exercises or waives his right to counsel or his right to a jury trial. Thus, as we recognized in Beavers v. Haubert, supra, any inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case:"The right of a speedy trial is necessarily relative. It is consistent with delays, and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice."198 U.S. at 198 U. S. 87.The amorphous quality of the right also leads to the unsatisfactorily severe remedy of dismissal of the indictment when the right has been deprived. This is indeed a serious consequence, because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, [Footnote 16] but it is the only possible remedy.IIIPerhaps because the speedy trial right is so slippery, two rigid approaches are urged upon us as ways of eliminating some of the uncertainty which courts experience Page 407 U. S. 523 in protecting the right. The first suggestion is that we hold that the Constitution requires a criminal defendant to be offered a trial within a specified time period. The result of such a ruling would have the virtue of clarifying when the right is infringed and of simplifying courts' application of it. Recognizing this, some legislatures have enacted laws, and some courts have adopted procedural rules which more narrowly define the right. [Footnote 17] The United States Court of Appeals for the Second Circuit has promulgated rules for the district courts in that Circuit establishing that the government must be ready for trial within six months of the date of arrest, except in unusual circumstances, or the charge will be dismissed. [Footnote 18] This type of rule is also recommended by the American Bar Association. [Footnote 19]But such a result would require this Court to engage in legislative or rulemaking activity, rather than in the adjudicative process to which we should confine our efforts. We do not establish procedural rules for the States, except when mandated by the Constitution. We find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months. The States, of course, are free to prescribe a reasonable period consistent with constitutional standards, but our approach must be less precise.The second suggested alternative would restrict consideration Page 407 U. S. 524 of the right to those case in which the accused has demanded a speedy trial. Most States have recognized what is loosely referred to as the "demand rule," [Footnote 20] although eight States reject it. [Footnote 21] It is not clear, however, precisely what is meant by that term. Although every federal court of appeals that has considered the question has endorsed some kind of demand rule, some have regarded the rule within the concept of waiver, [Footnote 22] whereas others have viewed it as a factor to be weighed Page 407 U. S. 525 in assessing whether there has been a deprivation of the speedy trial right. [Footnote 23] We shall refer to the former approach as the demand-waiver doctrine. The demand-waiver doctrine provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial. Under this rigid approach, a prior demand is a necessary condition to the consideration of the speedy trial right. This essentially was the approach the Sixth Circuit took below.Such an approach, by presuming waiver of a fundamental right [Footnote 24] from inaction, is inconsistent with this Court's pronouncements on waiver of constitutional rights. The Court has defined waiver as "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U. S. 458, 304 U. S. 464 (1938). Courts should "indulge every reasonable presumption against waiver," Aetna Ins. Co. v. Kennedy, 301 U. S. 389, 301 U. S. 393 (1937), and they should "not presume acquiescence Page 407 U. S. 526 in the loss of fundamental rights," Ohio Bell Tel. Co. v. Public Utilities Comm'n, 301 U. S. 292, 301 U. S. 307 (137). In Carnley v. Cochran, 369 U. S. 506 (1962), we held:"Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandably rejected the offer. Anything less is not waiver."Id. at 369 U. S. 516. The Court has ruled similarly with respect to waiver of other rights designed to protect the accused. See, e.g., Miranda v. Arizona, 384 U. S. 436, 384 U. S. 475-476 (1966); Boykin v. Alabama, 395 U. S. 238 (1969).In excepting the right to speedy trial from the rule of waiver we have applied to other fundamental rights, courts that have applied the demand-waiver rule have relied on the assumption that delay usually works for the benefit of the accused, and on the absence of any readily ascertainable time in the criminal process for a defendant to be given the choice of exercising or waiving his right. But it is not necessarily true that delay benefits the defendant. There are cases in which delay appreciably harms the defendant's ability to defend himself. [Footnote 25] Page 407 U. S. 527 Moreover, a defendant confined to jail prior to trial is obviously disadvantaged by delay as is a defendant released on bail but unable to lead a normal life because of community suspicion and his own anxiety.The nature of the speedy trial right does make it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants. A defendant has no duty to bring himself to trial; [Footnote 26] the State has that duty as well as the duty of insuring that the trial is consistent with due process. [Footnote 27] Moreover, for the reasons earlier expressed, society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest.It is also noteworthy that such a rigid view of the demand-waiver rule places defense counsel in an awkward position. Unless he demands a trial early and often, he is in danger of frustrating his client's right. If counsel is willing to tolerate some delay because he finds it reasonable and helpful in preparing his own case, he may be unable to obtain a speedy trial for his client at the end of that time. Since, under the demand-waiver rule, no time Page 407 U. S. 528 runs until the demand is made, the government will have whatever time is otherwise reasonable to bring the defendant to trial after a demand has bee made. Thus, if the first demand is made three months after arrest in a jurisdiction which prescribes a six-month rule, the prosecution will have a total of nine months -- which may be wholly unreasonable under the circumstances. The result in practice is likely to be either an automatic, pro forma demand made immediately after appointment of counsel or delays which, but for the demand-waiver rule, would not be tolerated. Such a result is not consistent with the interests of defendants, society, or the Constitution.We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. [Footnote 28] This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. It allows the trial court Page 407 U. S. 529 to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule. It would permit, for example, a court to attach a different weight to a situation in which the defendant knowingly fails to object from a situation in which his attorney acquiesces in long delay without adequately informing his client, or from a situation in which no counsel is appointed. It would also allow a court to weigh the frequency and force of the objections, as opposed to attaching significant weight to a purely pro forma objection.In ruling that a defendant has some responsibility to assert a speedy trial claim, we do not depart from our holdings in other cases concerning the waiver of fundamental rights, in which we have placed the entire responsibility on the prosecution to show that the claimed waiver was knowingly and voluntarily made. Such cases have involved rights which must be exercised or waived at a specific time or under clearly identifiable circumstances, such as the rights to plead not guilty, to demand a jury trial, to exercise the privilege against self-incrimination, and to have the assistance of counsel. We have shown above that the right to a speedy trial is unique in its uncertainty as to when and under what circumstances it must be asserted or may be deemed waived. But the rule we announce today, which comports with constitutional principles, places the primary burden on the courts and the prosecutors to assure that cases are brought to trial. We hardly need add that, if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside.We therefore reject both of the inflexible approaches -- the fixed-time period because it goes further than the Constitution requires; the demand-waiver rule because it is insensitive to a right which we have deemed Page 407 U. S. 530 fundamental. The approach we accept is a balancing test, in which the conduct of both the prosecution and the defendant are weighed. [Footnote 29]IVA balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. [Footnote 30]The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar Page 407 U. S. 531 circumstances of the case. [Footnote 31] To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. [Footnote 32] A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government, rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.We have already discussed the third factor, the defendant's responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining Page 407 U. S. 532 whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. [Footnote 33] Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record, because what has been forgotten can rarely be shown.We have discussed previously the societal disadvantages of lengthy pretrial incarceration, but obviously the disadvantages for the accused who cannot obtain his release are even more serious. The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. [Footnote 34] The time spent in Page 407 U. S. 533 jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. [Footnote 35] Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent. Finally, even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility. See cases cited in n 33, supra.We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors, and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. [Footnote 36] But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused's interest in a speedy trial is specifically affirmed in the Constitution.VThe difficulty of the task of balancing these factors is illustrated by this case, which we consider to be close. It is clear that the length of delay between arrest and trial -- well over five years -- was extraordinary. Only Page 407 U. S. 534 seven months of that period can be attributed to a strong excuse, the illness of the ex-sheriff who was in charge of the investigation. Perhaps some delay would have been permissible under ordinary circumstances so that Manning could be utilized as a witness in Barker's trial, but more than four years was too long a period, particularly since a good part of that period was attributable to the Commonwealth's failure or inability to try Manning under circumstances that comported with due process.Two counterbalancing factors, however, outweigh these deficiencies. The first is that prejudice was minimal. Of course, Barker was prejudiced to some extent by living for over four years under a cloud of suspicion and anxiety. Moreover, although he was released on bond for most of the period, he did spend 10 months in jail before trial. But there is no claim that any of Barker's witnesses died or otherwise became unavailable owing to the delay. The trial transcript indicates only two very minor lapses of memory -- one on the part of a prosecution witness -- which were in no way significant to the outcome.More important than the absence of serious prejudice is the fact that Barker did not want a speedy trial. Counsel was appointed for Barker immediately after his indictment, and represented him throughout the period. No question is raised as to the competency of such counsel. [Footnote 37] Despite the fact that counsel had notice of the motions for continuances, [Footnote 38] the record shows no action whatever taken between October 21, 1958, and February 12, 1962, that could be construed as the assertion of the speedy trial right. On the latter date, in response to another motion for continuance, Barker moved Page 407 U. S. 535 to dismiss the indictment. The record does not show on what ground this motion was based, although it is clear that no alternative motion was made for a immediate trial. Instead, the record strongly suggests that, while he hoped to take advantage of the delay in which he had acquiesced, and thereby obtain a dismissal of the charges, he definitely did not want to be tried. Counsel conceded as much at oral argument:"Your honor, I would concede that Willie Mae Barker probably -- I don't know this for a fact -- probably did not want to be tried. I don't think any man wants to be tried. And I don't consider this a liability on his behalf. I don't blame him."Tr. of Oral Arg. 39. The probable reason for Barker's attitude was that he was gambling on Manning's acquittal. The evidence was not very strong against Manning, as the reversals and hung juries suggest, and Barker undoubtedly thought that, if Manning were acquitted, he would never be tried. Counsel also conceded this:"Now, it's true that the reason for this delay was the Commonwealth of Kentucky's desire to secure the testimony of the accomplice, Silas Manning. And it's true that, if Silas Manning were never convicted, Willie Mae Barker would never have been convicted. We concede this."Id. at 15. [Footnote 39] Page 407 U. S. 536That Barker was gambling on Manning's acquittal is also suggested by his failure, following the pro forma motion to dismiss filed in February, 1962, to object to the Commonwealth's next two motions for continuances. Indeed, it was not until March, 1963, after Manning's convictions were final, that Barker, having lost his gamble, began to object to further continuances. At that time, the Commonwealth's excuse was the illness of the ex-sheriff, which Barker has conceded justified the further delay. [Footnote 40]We do not hold that there may never be a situation in which an indictment may be dismissed on speedy trial grounds where the defendant has failed to object to continuances. There may be a situation in which the defendant was represented by incompetent counsel, was severely prejudiced, or even cases in which the continuances were granted ex parte. But barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial. We hold, therefore, that Barker was not deprived of his due process right to a speedy trial.The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtBarker v. Wingo, 407 U.S. 514 (1972)Barker v. WingoNo. 71-5255Argued April 11, 1972Decided June 22, 1972407 U.S. 514SyllabusPetitioner was not brought to trial for murder until more than five years after he had been arrested, during which time the prosecution obtained numerous continuances, initially for the purpose of first trying petitioner's alleged accomplice so that his testimony, if conviction resulted, would be available at petitioner's trial. Before the accomplice was finally convicted, he was tried six times. Petitioner made no objection to the continuances until three and one-half years after he was arrested. After the accomplice was finally convicted, petitioner, after further delays because of a key prosecution witness' illness, was tried and convicted. In this habeas corpus proceeding, the Court of Appeals, concluding that petitioner had waived his right to a speedy trial for the period prior to his demand for trial, and, in any event, had not been prejudiced by the delay, affirmed the District Court's judgment against petitioner.Held: A defendant's constitutional right to a speedy trial cannot be established by any inflexible rule, but can be determined only on an ad hoc balancing basis in which the conduct of the prosecution and that of the defendant are weighed. The court should assess such factors as the length of and reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. In this case, the lack of any serious prejudice to petitioner and the fact, as disclosed by the record, that he did not want a speedy trial outweigh opposing considerations, and compel the conclusion that petitioner was not deprived of his due process right to a speedy trial. Pp. 407 U. S. 519-536.442 F.2d 1141, affirmed.POWELL, J., delivered the opinion for a unanimous Court. WHITE, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 407 U. S. 536. Page 407 U. S. 515

1976_75-1064

MR. JUSTICE REHNQUIST delivered the opinion of the Court.IAppellees Bartley, Gentile, Levine, Mathews, and Weand were the named plaintiffs in a complaint challenging the constitutionality of Pennsylvania statutes governing the voluntary admission and voluntary commitment to Pennsylvania mental health institutions of persons 18 years of age or younger. The named plaintiffs alleged that they were then being held at Haverford State Hospital, a Pennsylvania mental health facility, and that they had been admitted or committed pursuant to the challenged provisions of the Page 431 U. S. 122 Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann., tit. 50, § 4101 et seq. (1969). Various state and hospital officials were named as defendants. [Footnote 1]Plaintiffs sought to vindicate not only their own constitutional rights, but also sought to represent a class consisting of"all persons under eighteen years of age who have been, are, or, may be admitted or committed to Haverford State Hospital and all other state mental health facilities under the challenged provisions of the state statute."App. 10a-11a (complaint 117)A three-judge United States District Court for the Eastern District of Pennsylvania struck down the statutes as violative of the Due Process Clause of the Fourteenth Amendment. 402 F. Supp. 1039 (1975). The court also entered a broad order requiring the implementation of detailed procedural protections for those admitted under the Pennsylvania statutes. On December 15, 1975, this Court granted appellants' application for a stay of the judgment of the District Court. On March 22, 1976, we noted probable jurisdiction. 424 U.S. 964.In general, the 1966 Act, which has been superseded to a significant degree, provides for three types of admission to a mental health facility for examination, treatment, and care: voluntary admission or commitment (§§ 402 and 403), emergency commitment (§ 405), and civil court commitment (§ 406). At issue here was the constitutionality of the voluntary admission and commitment statutes, [Footnote 2] §§ 402 and 403, Page 431 U. S. 123 as those statutes reglate the admission of persons 18 years of age or younger. The statutes [Footnote 3] provide that juveniles may be admitted upon the application of a parent, guardian, Page 431 U. S. 124 or individual standing in loco parentis and that, unlike adults, the admitted person is free to withdraw only with the consent of the parent or guardian admitting him. [Footnote 4]There have been two major changes in the Pennsylvania statutory scheme that have materially affected the rights of juveniles: the promulgation of regulations under the 1966 Act, and the enactment of the Mental Health Procedures Act in 1976. At the time the complaint was filed, the 1966 Act Page 431 U. S. 125 made little or no distinction between older and younger juveniles. Each of the named plaintiffs was at that time between 15 and 18 years of age. After the commencement of his action, but before class certification or decision on the merits by the District Court, the Pennsylvania Department of Public Welfare promulgated regulations which substantially increased the procedural safeguards afforded to minors 13 years of age or older. The regulations, promulgated pursuant to statutory authority, [Footnote 5] became effective September 1, 1973. The major impact of the regulations [Footnote 6] upon this litigation stems from the fact that the regulations accord significant procedural protections to those 13 and older, but not to those less than 13. The older juveniles are given notification of their rights, the telephone number of counsel, and the right to institute a § 406 involuntary commitment proceeding in court within two business days. Under § 406, [Footnote 7] a judicial hearing is held after notice to the parties. The younger juveniles are not given the right to a hearing and, are still remitted to relying upon the admitting parent or guardian.Although the regulations sharply differentiate between juveniles of less than 13 years of age and those 13 to 18, on April 29, 1974, the District Court nonetheless certified the following class to be represented by the plaintiffs:"This action shall be maintained as a class action under Rule 23(b)(1) and (2) of the Federal Rules of Civil Procedure on behalf of the class comprised of all persons eighteen years of age or younger who have been, are or may be admitted or committed to mental health facilities in Pennsylvania pursuant to the challenged Page 431 U. S. 126 provisions of the state mental health law (i.e., 50 P.S. §§ 4402 and 4403). This definition of the class is without prejudice to the possibility that it may be amended or altered before the decision on the merits herein."App. 270a.On July 9, 1976, after the decision below and after this Court had noted probable jurisdiction, Pennsylvania enacted a new statute substantially altering its voluntary admission procedures. Mental Health Procedures Act, Pa.Act No. 143. The new Act completely repeals the provisions declared unconstitutional below except insofar as they relate to mentally retarded persons. § 502. Under the new Act, any person 14 years of age or over may voluntarily admit himself, but his parents may not do so; those 14 to 18 who were subject to commitment by their parents under the 1966 Act are treated essentially as adults under the new Act. § 201. [Footnote 8] Under the new Act, children 13 and younger may still be admitted for treatment by a parent, guardian, or person standing in loco parentis. Ibid. Those 14 and over may withdraw from voluntary treatment "at any time by giving written notice." § 206(a). [Footnote 9] Those under 14 may be released by request of the parent; in addition, "any responsible party" may petition the Juvenile Division of the Court of Common Page 431 U. S. 127 Pleas to request withdrawal of the child or modification of his treatment. § 206(b).Because we have concluded that the claims of the named appellees are mooted by the new Act, and that the claims of the unnamed members of the class are not properly presented for review, we do not dwell at any length upon the statutory scheme for voluntary commitment in Pennsylvania or upon the rationale of the District Court's holding that the 1966 Act and regulations did not satisfy due process.IIThis case presents important constitutional issues -- issues that were briefed and argued before this Court. However, for reasons hereafter discussed, we conclude that the claims of the named appellees are mooted by the new Act and Page 431 U. S. 128 decline to adjudicate the claims of the class certified by the District Court. That class has been fragmented by the enactment of the new Act and the promulgation of the regulations.Constitutional adjudication being a matter of "great gravity and delicacy," see Ashwander v. TVA, 297 U. S. 288, 297 U. S. 345 (1936) (Brandeis, J., concurring), we base our refusal to pass on the merits on"the policy rules often invoked by the Court "to avoid passing prematurely on constitutional questions. Because [such] rules operate in cases confessedly within [the Court's] jurisdiction' . . . , they find their source in policy, rather than purely constitutional, considerations."" Franks v. Bowman Transportation Co., 424 U. S. 747, 424 U. S. 76 n. 8 (1976).AAt the time the complaint was filed, each of the named plaintiffs was older than 14, and insofar as the record indicates, mentally ill. [Footnote 10] The essence of their position was that, as matters stood at that time, a juvenile 18 or younger could be "voluntarily" admitted upon application of his parent, over the objection of the juvenile himself. Thus, appellees urged in their complaint that the Due Process Clause required that they be accorded the right to a hearing, as well as other procedural protections, to ensure the validity of the commitment. App. 21a-22a (complaint � 46).The fact that the Act was passed after the decision below does not save the named appellees' claims from mootness. There must be a live case or controversy before this Court, Page 431 U. S. 129 Sosna v. Iowa, 419 U. S. 393, 419 U. S. 402 (1975), and we apply the law as it is now, not as it stood below. Fusari v. Steinberg, 419 U. S. 379 (1975); Sosna v. Iowa, supra. Thus the enactment of the new statute [Footnote 11] clearly moots the claims of the named appellees, and all others 14 or older and mentally ill.These concerns were eradicated with the passage of the new Act, which applied immediately to all persons receiving voluntary treatment. § 501. The Act, in essence, treats mentally ill juveniles 14 and older as adults. They may voluntarily commit themselves, but their parents may not do so, § 201, and one receiving voluntary treatment may withdraw at any time by giving written notice. § 206. With respect to the named appellees, the Act completely repealed and replaced the statutes challenged below, and obviated their demand for a hearing, and other procedural protections, since the named appellees had total freedom to leave the hospital, and could not be forced to return absent their consent. After the passage of the Act, in no sense were the named appellees "detained and incarcerated involuntarily in mental hospitals," as they had alleged in the complaint, App. 21a.BIf the only appellees before us were the named appellees, the mootness of the case with respect to them would require that we vacate the judgment of the District Court with instructions to dismiss their complaint. United States v. Munsingwear, 340 U. S. 36 (1950). But, as we have previously indicated, the District Court certified, pursuant to Fed.Rule Civ.Proc. 23, the class described supra at 125-126.In particular types of class actions, this Court has held that the presence of a properly certified class may provide an added dimension to our Art. III analysis, and that the mootness Page 431 U. S. 130 of the named plaintiffs' claims does not "inexorably" require dismissal of the action. Sosna, supra at 419 U. S. 399- 401. See also Franks v. Bowman Transportation, Inc., supra at 424 U. S. 752-757; Gerstein v. Pugh, 420 U. S. 103, 420 U. S. 110-111, n. 11 (1975). But we have never adopted a flat rule that the mere fact of certification of a class by a district court was sufficient to require us to decide the merits of the claims of unnamed class members when those of the named parties had become moot. Cf. Sosna, supra at 419 U. S. 402. Here, the promulgation of the regulations materially changed, prior to class certification, the controverted issues with respect to a large number of unnamed plaintiffs; prior to decision by this Court, the controverted issues pertaining to even more unnamed plaintiffs have been affected by the passage of the 1976 Act. We do not think that the fragmented residual of the class originally certified by the District Court may be treated as were the classes in Sosna and Franks.There is an obvious lack of homogeneity among those unnamed members of the class originally certified by the District Court. Analysis of the current status of the various subgroups reveals a bewildering lineup of permutations and combinations. As we parse it, the claims of those 14 and older and mentally ill are moot. They have received by statute all that they claimed under the Constitution. Those 14 and older and mentally retarded are subject to the 1966 Act, struck down by the District Court, but are afforded the protections of the regulations. Their claims are not wholly mooted, but are satisfied in many respects by the regulations. Those 13 and mentally ill are subject to the admissions procedures of the new Act, arguably supplemented by the procedural protection of the regulations. The status of their claims is unclear. Those 13 and mentally retarded are subject to the 1966 Act and the regulations promulgated thereunder. Their claims are satisfied in many respects. Those younger than 13 and mentally ill are unaided by the Page 431 U. S. 131 regulations, and are subject to the admissions procedures of the 1976 Act, the constitutional effect of which has not been reviewed by the District Court. Those younger than 13 and mentally retarded are subject to the 1966 Act, unaffected by the regulations. This latter group is thus the only group whose status has not changed materially since the outset of the litigation. These fragmented subclasses are represented by named plaintiffs whose constitutional claims are moot, and it is the attorneys for these named plaintiffs who have conducted the litigation in the District Court and in this Court. [Footnote 12]The factors which we have just described make the class aspect of this litigation a far cry indeed from that aspect of the litigation in Sosna and in Franks, where we adjudicated the merits of the class claims notwithstanding the mootness of the claims of the named parties. In Sosna, the named plaintiff had, by the time the litigation reached this Court, fulfilled the residency requirement which she was challenging, but the class described in the District Court's certification remained exactly the same. In that case, mootness was due to the inexorable passage of time, rather than to any change in the law. In Franks, a Title VII discrimination lawsuit, the named plaintiff had been subsequently discharged for a nondiscriminatory reason, and therefore before this Court that plaintiff no longer had a controversy with his employer similar to those of the unnamed members of the class. But Page 431 U. S. 132 the metes and bounds of each of those classes remained the same; the named plaintiff was simply no longer within them.Here, by contrast, the metes and bounds of the class certified by the District Court have been carved up by two changes in the law. In Sosna and Franks, the named plaintiffs had simply "left" the class, but the class remained substantially unaltered. In both of those cases, the named plaintiff's mootness was not related to any factor also affecting the unnamed members of the class. In this case, however, the class has been both truncated and compartmentalized by legislative action; this intervening legislation has rendered moot not only the claims of the named plaintiffs, but also the claims of a large number of unnamed plaintiffs. [Footnote 13] The legislation, coupled with the regulations, has, in a word, materially changed the status of those included within the class description.For all of the foregoing reasons, we have the gravest doubts whether the class, as presently constituted, comports with the requirements of Fed.Rule Civ.Proc. 23(a). [Footnote 14] And it is Page 431 U. S. 133 only a "properly certified" class that may succeed to the adversary position of a named representative whose claim becomes moot. Indianapolis School Comm'rs v. Jacobs, 420 U. S. 128 (1975).In addition to the differences to which we have already adverted, the issues presented by these appellees, unlike that presented by the appellant in Sosna, supra, are not "capable of repetition, yet evading review." In the latter case, there is a significant benefit in according the class representative the opportunity to litigate on behalf of the class, since otherwise there may well never be a definitive resolution of the constitutional claim on the merits by this Court. We stated in Franks that,"[g]iven a properly certified class action, . . . mootness turns on whether, in the specific circumstances of the given case at the time it is before this Court, an adversary relationship sufficient to fulfill this function exists."424 U.S. at 424 U. S. 755-756. We noted that the "evading review" element was one factor to be considered in evaluating the adequacy of the adversary relationship in this Court. Id. at 424 U. S. 756 n. 8. In this case, not only is the issue one that will not evade review, but the existence of a "properly certified class action" is dubious, and the initial shortcomings in the certification have multiplied. See Indianapolis School Comm'rs v. Jacobs, supra.In sum, none of the critical factors that might require us to adjudicate the claims of a class after mootness of the named plaintiff's claims are present here. We are dealing with important constitutional issues on the merits, issues which are not apt to evade review, in the context of mooted claims on the part of all of the named parties and a certified class which, whatever the merits of its original Page 431 U. S. 134 certification by the District Court, has been fragmented by the enactment of legislation since that certification. While there are "live" disputes between unnamed members of portions of the class certified by the District Court, on the one hand, and appellants, on the other, these disputes are so unfocused as to make informed resolution of them almost impossible. Cf. Fusari v. Steinberg, 419 U. S. 379 (1976). We accordingly decline to pass on the merits of appellees' constitutional claims. [Footnote 15]We conclude that, before the "live" claims of the fragmented subclasses remaining in this litigation can be decided on the merits, the case must be remanded to the District Court Page 431 U. S. 135 for reconsideration of the class definition, exclusion of those whose claims are moot, and substitution of class representatives with live claimsBecause the District Court will confront this task on remand, we think it not amiss to remind that court that it is under the same obligation as we are to "stop, look, and listen" before certifying a class in order to adjudicate constitutional claims. That court, in its original certification, ignored the effect of the regulations promulgated by appellants which made a dramatic distinction between older and younger juveniles, [Footnote 16] and, according to the District Court, 402 F. Supp. at 1042, accorded the named appellees all of the protections which they sought, save two: the right to a precommitment hearing, and the specification of the time for the postcommitment hearing.This distinction between older and younger juveniles, recognized by state administrative authorities (and later by the Pennsylvania Legislature in its enactment of the 1976 Act), emphasizes the very possible differences in the interests of the older juveniles and the younger juveniles. Separate counsel for the younger juveniles might well have concluded that it would not have been in the best interest of their clients to press for the requirement of an automatic precommitment hearing, because of the possibility that such a hearing, with its propensity to pit parent against child, might actually be antithetical to the best interest of the younger juveniles. In the event that these issues are again litigated before the District Court, careful attention must be paid to the differences between mentally ill and mentally retarded, Page 431 U. S. 136 and between the young and the very young. It may be that Pennsylvania's experience in implementing the new Act will shed light on these issues.IIIThis disposition is made with full recognition of the importance of the issues, and of our assumption that all parties earnestly seek a decision on the merits. As Mr. Justice Brandeis stated in his famous concurrence in Ashwander v. TVA, 297 U.S. at 297 U. S. 345:"The fact that it would be convenient for the parties and the public to have promptly decided whether the legislation assailed is valid, cannot justify a departure from these settled rules. . . ."And, as we have more recently observed in the context of "ripeness":"All of the parties now urge that the 'conveyance taking' issues are ripe for adjudication. However, because issues of ripeness involve, at least in part, the existence of a live 'Case or Controversy,' we cannot rely upon concessions of the parties and must determine whether the issues are ripe for decision in the 'Case or Controversy' sense. Further, to the extent that questions of ripeness involve the exercise of judicial restraint from unnecessary decision of constitutional issues, the Court must determine whether to exercise that restraint and cannot be bound by the wishes of the parties."Regional Rail Reorganization Act Cases, 419 U. S. 102, 419 U. S. 138 (1974). (Footnote omitted.)Our analysis of the questions of mootness and of our ability to adjudicate the claims of the class in this case is consistent with the long-established rule that this Court will not "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied." Liverpool, Page 431 U. S. 137 N.Y. & P. S.S. Co. v. Emigration Comm'rs, 113 U. S. 33, 113 U. S. 39 (1885). The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtKremens v. Bartley, 431 U.S. 119 (1977)Kremens v. BartleyNo. 75-1064Argued December 1, 1976�Decided May 16, 1977431 U.S. 119SyllabusAppellees, five mentally ill individuals who were between 15 and 18 years old at the time the complaint was filed, were the named plaintiffs in an action challenging the constitutionality of a 1966 Pennsylvania statute governing the voluntary admission and voluntary commitment to state mental health institutions of persons aged 18 or younger. Appellees sought to vindicate their constitutional rights and to represent a class consisting of all persons under 18 "who have been, are, or, may be admitted or committed" to state mental health facilities. The statute provided, inter alia, that a juvenile might be admitted upon a parent's application, and that, unlike an adult, the admitted person was free to withdraw only with the consent of the parent admitting him. After the commencement of the action, regulations were promulgated substantially increasing the procedural safeguards afforded minors aged 13 or older. After those regulations had become effective, and notwithstanding the differentiation therein between juveniles of less than 13 and those 13 to 18, the District Court certified the class to be represented by the plaintiffs as consisting of all persons 18 or younger who have been or may be admitted or committed to Pennsylvania mental health facilities pursuant to the challenged provisions. The District Court later issued a decision holding those provisions violative of due process. In July, 1976, after that decision, and after this Court had noted probable jurisdiction, a new statute was enacted, repealing the provisions held to be unconstitutional except insofar as they relate to the mentally retarded. Under the 1976 Act, a person 14 or over may voluntarily admit himself, but his parents may not do so; thus, those 14 to 18 who were subject to commitment by their parents under the 1966 Act are treated as adults by the 1976 Act. Children 13 and younger may still be admitted for treatment by a parent. Those f4 and over may withdraw from voluntary treatment by giving written notice. Those under 14 may be released on the parent's request, and "any responsible party" may petition for release.Held:1. The enactment of the 1976 Act, which completely repealed and replaced the challenged provisions vis-a-vis the named appellees, clearly Page 431 U. S. 120 moots the claims of the named appellees, who are treated as adults totally free to leave the hospital and who cannot be forced to return unless they consent to do so. Pp. 431 U. S. 128-129.2. The material changes in the status of those included in the class certified by the District Court that resulted from the 1976 Act and the regulations preclude an informed resolution of that class' constitutional claims. Pp. 431 U. S. 129-133.(a) Though the mootness of the claims of named plaintiffs does not "inexorably" require dismissal of the claims of the unnamed members of the class, Sosna v. Iowa, 419 U. S. 393; Franks v. Bowman Transportation Co., 424 U. S. 747, this Court has never adopted a flat rule that the mere fact of certification by a district court requires resolution of the merits of the claims of the unnamed members of the class when those of the named parties had become moot. Pp. 431 U. S. 129-130.(b) Here, the status of all members of the class, except those individuals who are younger than 13 and mentally retarded, has changed materially since this suit began; the intervening legislation has fragmented the class. The propriety of the class certification is thus a matter of gravest doubt. Cf. Indianapolis School Comm'rs v. Jacobs, 420 U. S. 128. Pp. 431 U. S. 130-133.(c) Moreover, the issue in this case with respect to a properly certified class is not one that is "capable of repetition, yet evading review." Sosna, supra, distinguished. P. 431 U. S. 133.3. Since none of the critical factors that might allow adjudication of the claims of a class after mootness of the named plaintiffs' claims are present here, the case must be remanded to the District Court for reconsideration of the class definition, exclusion of those whose claims are moot, and substitution of class representatives with live claims. Pp. 431 U. S. 133-135.402 F. Supp. 1039, vacated and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 431 U.S. 137. Page 431 U. S. 121

1988_87-1097

JUSTICE KENNEDY delivered the opinion of the Court.Under the Medicare program, health care providers are reimbursed by the Government for expenses incurred in providing medical services to Medicare beneficiaries. See Title XVIII of the Social Security Act, 79 Stat. 291, as amended, 42 U.S.C. § 1395 et seq. (the Medicare Act). Congress has Page 488 U. S. 206 authorized the Secretary of Health and Human Services to promulgate regulations setting limits on the levels of Medicare costs that will be reimbursed. The question presented here is whether the Secretary may exercise this rulemaking authority to promulgate cost limits that are retroactive.IThe Secretary's authority to adopt cost-limit rules is established by § 223(b) of the Social Security Amendments of 1972, 86 Stat. 1393, amending 42 U.S.C. § 1395x(v)(1)(A). This authority was first implemented in 1974 by promulgation of a cost-limit schedule for hospital services; new cost-limit schedules were issued on an annual basis thereafter.On June 30, 1981, the Secretary issued a cost-limit schedule that included technical changes in the methods for calculating cost limits. One of these changes affected the method for calculating the "wage index," a factor used to reflect the salary levels for hospital employees in different parts of the country. Under the prior rule, the wage index for a given geographic area was calculated by using the average salary levels for all hospitals in the area; the 1981 rule provided that wages paid by Federal Government hospitals would be excluded from that computation.Various hospitals in the District of Columbia area brought suit in United States District Court seeking to have the 1981 schedule invalidated. On April 29, 1983, the District Court struck down the 1981 wage-index rule, concluding that the Secretary had violated the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., by failing to provide notice and an opportunity for public comment before issuing the rule. See District of Columbia Hospital Assn. v. Heckler, No. 82-2520, App. to Pet. for Cert. 49a (hereinafter DCHA). The court did not enjoin enforcement of the rule, however, finding it lacked jurisdiction to do so because the hospitals Page 488 U. S. 207 had not yet exhausted their administrative reimbursement remedies. The court's order stated:"If the Secretary wishes to put in place a valid prospective wage index, she should begin proper notice and comment proceedings; any wage index currently in place that has been promulgated without notice and comment is invalid, as was the 1981 schedule."DCHA, App. to Pet. for Cert. 64a.The Secretary did not pursue an appeal. Instead, after recognizing the invalidity of the rule, see 48 Fed.Reg. 39998 (1983), the Secretary settled the hospitals' cost reimbursement reports by applying the pre-1981 wage-index method.In February, 1984, the Secretary published a notice seeking public comment on a proposal to reissue the 1981 wage-index rule, retroactive to July 1, 1981. 49 Fed.Reg. 6175 (1984). Because Congress had subsequently amended the Medicare Act to require significantly different cost reimbursement procedures, the readoption of the modified wage-index method was to apply exclusively to a 15-month period commencing July 1, 1981. After considering the comments received, the Secretary reissued the 1981 schedule in final form on November 26, 1984, and proceeded to recoup sums previously paid as a result of the District Court's ruling in DCHA. 49 Fed.Reg. 46495 (1984). In effect, the Secretary had promulgated a rule retroactively, and the net result was as if the original rule had never been set aside.Respondents, a group of seven hospitals who had benefited from the invalidation of the 1981 schedule, were required to return over $2 million in reimbursement payments. After exhausting administrative remedies, they sought judicial review under the applicable provisions of the APA, claiming that the retroactive schedule was invalid under both the APA and the Medicare Act.The United States District Court for the District of Columbia granted summary judgment for respondents. Applying the balancing test enunciated in Retail, Wholesale and Department Page 488 U. S. 208 Store Union, AFL-CIO v. NLRB, 151 U.S.App.D.C. 209, 466 F.2d 380 (1972), the court held that retroactive application was not justified under the circumstances of the case.The Secretary appealed to the United States Court of Appeals for the District of Columbia Circuit, which affirmed. 261 U.S.App.D.C. 262, 821 F.2d 750 (1987). The court based its holding on the alternative grounds that the APA, as a general matter, forbids retroactive rulemaking, and that the Medicare Act, by specific terms, bars retroactive cost-limit rules. We granted certiorari, 485 U.S. 903 (1988), and we now affirm.IIIt is axiomatic that an administrative agency's power to promulgate legislative regulations is limited to the authority delegated by Congress. In determining the validity of the Secretary's retroactive cost-limit rule, the threshold question is whether the Medicare Act authorizes retroactive rulemaking.Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result. E.g., Greene v. United States, 376 U. S. 149, 376 U. S. 160 (1964); Claridge Apartments Co. v. Commissioner, 323 U. S. 141, 323 U. S. 164 (1944); Miller v. United States, 294 U. S. 435, 294 U. S. 439 (1935); United States v. Magnolia Petroleum Co., 276 U. S. 160, 276 U. S. 162-163 (1928). By the same principle, a statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms. See Brimstone R. Co. v. United States, 276 U. S. 104, 276 U. S. 122 (1928) ("The power to require readjustments for the past is drastic. It . . . ought not to be extended so as to permit unreasonably harsh action without very plain words"). Even where some substantial justification for retroactive rulemaking is presented, courts Page 488 U. S. 209 should be reluctant to find such authority absent an express statutory grant.The Secretary contends that the Medicare Act provides the necessary authority to promulgate retroactive cost-limit rules in the unusual circumstances of this case. He rests on alternative grounds: first, the specific grant of authority to promulgate regulations to "provide for the making of suitable retroactive corrective adjustments," 42 U.S.C. § 1395x(v)(1)(A)(ii); and second, the general grant of authority to promulgate cost limit rules, §§ 1395x(v)(1)(A), 1395hh, 1395ii. We consider these alternatives in turn.AThe authority to promulgate cost reimbursement regulations is set forth in § 1395x(v)(1)(A). That subparagraph also provides that:"Such regulations shall . . . (ii) provide for the making of suitable retroactive corrective adjustments where, for a provider of services for any fiscal period, the aggregate reimbursement produced by the methods of determining costs proves to be either inadequate or excessive."Ibid.This provision, on its face, permits some form of retroactive action. We cannot accept the Secretary's argument, however, that it provides authority for the retroactive promulgation of cost-limit rules. To the contrary, we agree with the Court of Appeals that clause (ii) directs the Secretary to establish a procedure for making case-by-case adjustments to reimbursement payments where the regulations prescribing computation methods do not reach the correct result in individual cases. The structure and language of the statute require the conclusion that the retroactivity provision applies only to case-by-case adjudication, not to rulemaking. [Footnote 1] Page 488 U. S. 210Section 1395x(v)(1)(A), of which clause (ii) is a part, directs the Secretary to promulgate regulations (including cost-limit rules) establishing the methods to be used in determining reasonable costs for "institutions" and "providers" that participate in the Medicare program. Clause (i) of § 1395x(v)(1)(A) requires these cost-method regulations to take into account both direct and indirect costs incurred by "providers." Clause (ii) mandates that the cost-method regulations include a mechanism for making retroactive corrective adjustments. These adjustments are required when, for "a provider," the "aggregate reimbursement produced by the methods of determining costs" is too low or too high. By its terms, then, clause (ii) contemplates a mechanism for adjusting the reimbursement received by a provider, while the remainder of § 1395x(v)(1)(A) speaks exclusively in the plural. The distinction suggests that clause (ii), rather than permitting modifications to the cost-method rules in their general formulation, is intended to authorize case-by-case inquiry into the accuracy of reimbursement determinations for individual providers. Indeed, it is difficult to see how a corrective adjustment could be made to the aggregate reimbursement paid "a provider" without performing an individual examination of the provider's expenditures in retrospect.Our conclusion is buttressed by the statute's use of the term "adjustments." Clause (ii) states that the cost-method Page 488 U. S. 211 regulations shall "provide for the making of . . . adjustments." In order to derive from this language the authority to promulgate cost-limit rules, the "adjustments" that the cost-method regulations must "provide for the making of" would themselves be additional cost-method regulations. Had Congress intended the Secretary to promulgate regulations providing for the issuance of further amendatory regulations, we think this intent would have been made explicit.It is also significant that clause (ii) speaks in terms of adjusting the aggregate reimbursement amount computed by one of the methods of determining costs. As the Secretary concedes, the cost-limit rules are one of the methods of determining costs, and the retroactive 1984 rule was therefore an attempt to change one of those methods. Yet nothing in clause (ii) suggests that it permits changes in the methods used to compute costs; rather, it expressly contemplates corrective adjustments to the aggregate amounts of reimbursement produced pursuant to those methods. We cannot find in the language of clause (ii) an independent grant of authority to promulgate regulations establishing the methods of determining costs.Our interpretation of clause (ii) is consistent with the Secretary's past implementation of that provision. The regulations promulgated immediately after enactment of the Medicare Act established a mechanism for making retroactive corrective adjustments that remained essentially unchanged throughout the periods relevant to this case. Compare 20 CFR §§ 405.451(b)(1), 405.454(a), (f) (1967), with 42 CFR §§ 405.451(b)(1), 405.454(a), (f) (1983). [Footnote 2] These regulations Page 488 U. S. 212 provide for adjusting the amount of interim payments received by a provider, to bring the aggregate reimbursement into line with the provider's actual reasonable costs.These are the only regulations that expressly contemplate the making of retroactive corrective adjustments. The 1984 reissuance of the 1981 wage-index rule did not purport to be such a provision; indeed, it is only in the context of this litigation that the Secretary has expressed any intent to characterize the rule as a retroactive corrective adjustment under clause (ii).Despite the novelty of this interpretation, the Secretary contends that it is entitled to deference under Young v. Community Nutrition Institute, 476 U. S. 974, 476 U. S. 980-981 (1986), Chemical Mfrs. Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 470 U. S. 125 (1986), and Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 842-844 (1984). We have never applied the principle of those cases to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice. To the contrary, we have declined to give deference to an agency counsel's interpretation of a statute where the agency itself has articulated no position on the question, on the ground that"Congress has delegated to the administrative official, and not to appellate counsel, the responsibility for elaborating and enforcing statutory commands."Investment Company Institute v. Camp, 401 U. S. 617, 401 U. S. 628 (1971); cf. Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 371 U. S. 168 (1962) ("The courts may not accept appellate counsel's post hoc rationalizations for agency [orders]"). Even if we were to sanction departure from this principle in some cases, we would not do so here. Far from being a reasoned and consistent view of the scope of clause (ii), the Secretary's current interpretation of clause (ii) is contrary to the narrow Page 488 U. S. 213 view of that provision advocated in past cases, where the Secretary has argued that clause (ii)"merely contemplates a year-end balancing of the monthly installments received by a provider with the aggregate due it for the year."Regents of the University of California v. Heckler, 771 F.2d 1182, 1189 (CA9 1985); see also Whitecliff, Inc. v. United States, 210 Ct.Cl. 53, 60, n. 11, 536 F.2d 347, 352, n. 11 (1976), cert. denied, 430 U.S. 969 (1977). Deference to what appears to be nothing more than an agency's convenient litigating position would be entirely inappropriate. Accordingly, the retroactive rule cannot be upheld as an exercise of the Secretary's authority to make retroactive corrective adjustments.BThe statutory provisions establishing the Secretary's general rulemaking power contain no express authorization of retroactive rulemaking. [Footnote 3] Any light that might be shed on this matter by suggestions of legislative intent also indicates that no such authority was contemplated. In the first place, where Congress intended to grant the Secretary the authority to act retroactively, it made that intent explicit. As discussed above, § 1395x(v)(1)(A)(ii) directs the Secretary to establish procedures for making retroactive corrective adjustments; Page 488 U. S. 214 in view of this indication that Congress considered the need for retroactive agency action, the absence of any express authorization for retroactive cost-limit rules weighs heavily against the Secretary's position.The legislative history of the cost-limit provision directly addresses the issue of retroactivity. In discussing the authority granted by § 223(b) of the 1972 amendments, the House and Senate Committee Reports expressed a desire to forbid retroactive cost-limit rules:"The proposed new authority to set limits on costs . . . would be exercised on a prospective, rather than retrospective, basis, so that the provider would know in advance the limits to Government recognition of incurred costs, and have the opportunity to act to avoid having costs that are not reimbursable."H.R.Rep. No. 92-231, p. 83 (1971); see S.Rep. No. 92-1230, p. 188 (1972).The Secretary's past administrative practice is consistent with this interpretation of the statute. The first regulations promulgated under § 223(b) provided that "[t]hese limits will be imposed prospectively. . . ." 20 CFR § 405.460(a) (1975). Although the language was dropped from subsection (a) of the regulation when it was revised in 1979, the revised regulation continued to refer to "the prospective periods to which limits are being applied," and it required that notice of future cost limits be published in the Federal Register "[p]rior to the beginning of a cost period to which limits will be applied. . . ." 42 CFR §§ 405.460(b)(2), (3) (1980). Finally, when the regulations were amended again in 1982, the Secretary reinserted the requirement that the limits be applied with prospective effect, noting that the language had been "inadvertently omitted" in the previous amendment, but that the reinsertion would "have no effect on the way we develop or apply the limits." 47 Fed.Reg. 43282, 43286 (1982); see 42 CFR § 405.460(a)(2) (1983).Other examples of similar statements by the agency abound. Every cost-limit schedule promulgated by the Secretary between Page 488 U. S. 215 1974 and 1981, for example, included a statement that § 223 permits the Secretary to establish "prospective" limits on the costs that are reimbursed under Medicare. [Footnote 4] The Secretary's administrative rulings have also expressed this understanding of § 223(b). See Beth Israel Hospital v. Blue Cross Assn./Blue Cross/Blue Shield of Massachusetts, CCH Medicare and Medicaid Guide � 31,645 (Nov. 7, 1981).The Secretary nonetheless suggests that, whatever the limits on his power to promulgate retroactive regulations in the normal course of events, judicial invalidation of a prospective rule is a unique occurrence that creates a heightened need, and thus a justification, for retroactive curative rulemaking. The Secretary warns that congressional intent and important administrative goals may be frustrated unless an invalidated rule can be cured of its defect and made applicable to past time periods. The argument is further advanced that the countervailing reliance interests are less compelling than in the usual case of retroactive rulemaking, because the original, invalidated rule provided at least some notice to the individuals and entities subject to its provisions.Whatever weight the Secretary's contentions might have in other contexts, they need not be addressed here. The case before us is resolved by the particular statutory scheme in question. Our interpretation of the Medicare Act compels the conclusion that the Secretary has no authority to promulgate retroactive cost-limit rules. Page 488 U. S. 216The 1984 reinstatement of the 1981 cost-limit rule is invalid. The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtBowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988)Bowen v. Georgetown University HospitalNo. 87-1097Argued October 11, 1988Decided December 12, 1988488 U.S. 204SyllabusUnder the Medicare program, the Government reimburses health care providers for expenses incurred in providing medical services to Medicare beneficiaries. The Medicare Act, in 42 U.S.C. § 1395x(v)(1)(A), authorizes the Secretary of Health and Human Services (Secretary) to promulgate cost reimbursement regulations, and also provides that"[s]uch regulations shall . . . (ii) provide for the making of suitable retroactive corrective adjustments where, for a provider of services for any fiscal period, the aggregate reimbursement produced by the methods of determining costs proves to be either inadequate or excessive."In 1981, the Secretary issued a cost-limit schedule that changed the method for calculating the "wage index," a factor used to reflect the salary levels for hospital employees in different parts of the country. Under the prior rule, the wage index for a given geographic area was calculated by using the average salary levels for all hospitals in the area, but the 1981 rule excluded from that computation wages paid by Federal Government hospitals. After the Federal District Court invalidated the 1981 rule in a suit brought by various hospitals in the District of Columbia, and the Secretary settled the hospitals' cost reimbursement reports by applying the pre-1981 wage-index method, the Secretary in 1984 reissued the 1981 rule and proceeded to recoup the sums previously paid to the hospitals, including respondents, as a result of the District Court's ruling. After exhausting administrative remedies, respondents brought suit in Federal District Court, claiming that the retroactive schedule was invalid under, inter alia, the Medicare Act. The court granted summary judgment for respondents, and the Court of Appeals affirmed.Held:1. An administrative agency's power to promulgate regulations is limited to the authority delegated by Congress. As a general matter, statutory grants of rulemaking authority will not be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by express terms. Pp. 488 U. S. 208-209.2. The 1984 reinstatement of the 1981 cost-limit rule is invalid. Pp. 488 U. S. 209-216. Page 488 U. S. 205(a) Section 1395x(v)(1)(A) does not authorize retroactive promulgation of cost-limit rules. The structure and language of the statute require the conclusion that clause (ii) applies not to rulemaking, but only to case-by-case adjustments to reimbursement payments, where the regulations prescribing computation methods do not reach the correct result in individual cases. This interpretation of clause (ii) is consistent with the Secretary's past implementation of that provision. Pp. 488 U. S. 209-213.(b) The Medicare Act's general grant of authority to the Secretary to promulgate cost-limit rules contains no express authorization for retroactive rulemaking. This absence of express authorization weighs heavily against the Secretary's position. Moreover, the legislative history of the cost-limit provision indicates that Congress intended to forbid retroactive cost-limit rules, and the Secretary's past administrative practice is consistent with this interpretation of the statute. Pp. 488 U. S. 213-216.261 U.S.App.D.C. 262, 821 F.2d 750, affirmed.KENNEDY, J., delivered the opinion for a unanimous Court. SCALIA, J., filed a concurring opinion.

1975_74-850

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.The question presented in this case is whether the Federal Magistrates Act, 28 U.S.C. § 631 et seq., permits a United States district court to refer all Social Security benefit cases to United States magistrates for preliminary review of the administrative record, oral argument, and preparation of a recommended decision as to whether the record contains substantial evidence to support the administrative determination -- all subject to an independent decision, on the record, by the district judge who may, in his discretion, hear the whole matter anew.(1)Respondent Weber brought this action in the United States District Court for the Central District of California to challenge the final determination of the Secretary of Health, Education, and Welfare that he was not entitled to reimbursement under the Medicare provisions of the Social Security Act, as added, 79 Stat. 291, and amended, 42 U.S.C. § 1395 et seq., for medical payments he made on behalf of his wife. Such a suit for judicial review is authorized by § 205(g) of the Federal Magistrates Act, as added, 53 Stat. 1370, and amended, 42 U.S.C. § 405(g), and governed by its standards. The court may consider only the pleadings and administrative record, and must accept the Secretary's findings of fact so long as they are supported by substantial evidence.When respondent's complaint was filed, the Clerk of the court pursuant to court rule assigned the case to a named District Judge, and simultaneously referred it to a United States Magistrate with directions "to notice and conduct such factual hearings and legal argument as may be appropriate" and to"prepare a proposed written order or decision, together with proposed findings of fact and Page 423 U. S. 264 conclusions of law where necessary or appropriate"for consideration by the District Judge. The Clerk took these steps pursuant to General Order No. 104-D of the District Court, which requires initial reference to a magistrate in seven categories of review of administrative cases, [Footnote 1] including actions filed under 42 U.S.C. § 405(g). Page 423 U. S. 265 The parties may object to the magistrate's recommendations. After acting on any objections, the magistrate is to forward the entire file to the district judge to whom the case is assigned for decision; the district judge "will calendar the matter for oral argument before him if he deems it necessary or appropriate."The Secretary moved to vacate the order of reference, arguing (1) that referral under a general order of this type violated Fed.Rule Civ.Proc. 53(b) and (2) that such referral was not authorized by the Federal Magistrates Act. The Secretary also argued that the reference was of doubtful constitutionality, and in contravention of the judicial review provisions of the Social Security Act, arguments that he has expressly declined to make in this Court. The District Court refused to vacate the order of reference, but certified the reference question for appeal under 28 U.S.C. § 1292(b).The Court of Appeals affirmed. 503 F.2d 1049 (CA9 1974). That court stressed the limited and preliminary nature of the inquiry in review actions brought under 42 U.S.C. § 405(g), the limited scope of the Magistrate's role on reference, and the fact that final authority for decision remained with the District Judge."Were the broad provisions of General Order No. 104-D . . . before us, the Secretary might have grounds to complain. As applied, the rule is not vulnerable to the attack here mounted."503 F.2d at 1051. The Court of Appeals thus reached a decision squarely in conflict with the decision of the Court of Appeals for the Sixth Circuit in Ingram. v. Richardson, 471 F.2d 1268 (1972). We granted certiorari, 420 U.S. 989 (1975), [Footnote 2] and we affirm. Page 423 U. S. 266(2)After several years of study, the Congress, in 1968, enacted the Federal Magistrates Act, 28 U.S.C. § 631 et seq. The Act abolished the office of United States commissioner and sought to"reform the first echelon of the Federal judiciary into an effective component of a modern scheme of justice by establishing a system of U.S. magistrates."S.Rep. No. 371, 90th Cong., 1st Sess., 8 (1967) (hereafter Senate Report). In order to improve the former system and to attract the most competent men and women to the office, the Act in essence made the position analogous to the career service, replacing the fee system of compensation with substantial salaries; the Act also gave both full- and part-time magistrates a definite term of office, and required that, wherever possible, the district courts appoint only members of the bar to serve as magistrates. Magistrates took over most of the duties of the commissioners, and the Act gave them new authority to try a broad range of misdemeanors with the consent of the parties.Title 28 U.S.C. § 636(b) outlines a procedure by which the district courts may call upon magistrates to perform other functions, in both civil and criminal cases. It provides:"Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to -- "Page 423 U. S. 267"(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;""(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and""(3) preliminary review of applications for post-trial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.""The three examples § 636(b) sets out are, as the statute itself states, not exclusive. The Senate sponsor of the legislation, Senator Tydings, testified in the House hearings:""The Magistrate[s] Act specifics these three areas because they came up in our hearings and we thought they were areas in which the district courts might be able to benefit from the magistrate's services. We did not limit the courts to the areas mentioned. Nor did we require that they use the magistrates for additional functions at all.""We hope and think that innovative, imaginative judges who want to clean up their caseload backlog will utilize the U.S. magistrates in these areas, and perhaps even come up with new areas to increase the efficiency of their courts."Hearings on the Federal Magistrates Act before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 2d Sess., 81 (1968) (hereafter House Hearings). See also Hearings on the Federal Magistrates Act before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 89th Page 423 U. S. 268 Cong., 2d Sess., and 90th Cong., 1st Sess., 14, 27 (1966 and 1967) (hereafter Senate Hearings).Section 636(b) was included to"permit . . . the U.S. district courts to assign magistrates, as officers of the courts, a variety of functions . . . presently performable only by the judges themselves."Senate Report 12. In enacting this section and in expanding the criminal jurisdiction conferred upon magistrates, Congress hoped, by"increasing the scope of the responsibilities that can be discharged by that office, . . . to establish a system capable of increasing the overall efficiency of the Federal judiciary. . . ."Id. at 11.The Act grew from Congress' recognition that a multitude of new statutes and regulations had created an avalanche of additional work for the district courts which could be performed only by multiplying the number of judges or giving judges additional assistance. The Secretary argues that Congress intended the transfer to magistrates of simply the irksome, ministerial tasks; respondent [Footnote 3] urges that Congress intended magistrates to take on a wide range of substantive judicial duties and advisory functions. We need not accept the characterization of the federal magistrate as either a "para-judge," as respondent would have it, or a "supernotary," as the Secretary argues, in order to resolve this case; finding the best analogy to this new office is not particularly important. Congress had a number of precedents for this new officer before it: British masters, justices of peace, and magistrates; our own traditional special masters in equity; and pretrial examiners. [Footnote 4] The Page 423 U. S. 269 office Congress created drew on all prior experience. What is important is that the congressional anticipation is becoming a reality; in fiscal 1975, for example, the 500 full- or part-time United States magistrates disposed of 255,061 matters, most of which would otherwise have occupied district judges. These included 36,766 civil proceedings, 537 of which were Social Security review cases. Annual Report of the Director, Administrative Office of the United States Courts VIII-4 (1975). See also Sussman, The Fourth Tier in the Federal Judicial System: The United States Magistrate, 56 Chicago Bar Record 134 (1974); Geffen, Practice Before the United States Magistrate, 47 L.A.Bar Bull. 462 (1972); Doyle, Implementing the Federal Magistrates Act, 39 J.Kan.Bar Assn. 25 (1970).Congress manifested concern as well as enthusiasm, however, in considering the Act. Several witnesses, including the Director of the Administrative Office and representatives of the Justice Department, expressed some fear that Congress might improperly delegate to magistrates duties reserved by the Constitution to Article III judges. Senate Hearings 107-128, 241n; House Hearings 123-128. [Footnote 5] The hearings and committee Page 423 U. S. 270 reports indicate that, in § 636(b) Congress met this problem in two ways. First, Congress restricted the range of matters that may be referred to a magistrate to those where referral is "not inconsistent with the Constitution and laws of the United States. . . ." Second, Congress limited the magistrate's role in cases referred to him under § 636(b). The Act's sponsors made it quite clear that the magistrate acts "under the supervision of the district judges" when he accepts a referral, and that authority for making final decisions remains at all times with the district judge. Senate Report 12."[A] district judge would retain ultimate responsibility for decision making in every instance in which a magistrate might exercise additional duties jurisdiction."House Hearings 73 (testimony of Sen. Tydings). See also id. at 127 (testimony of Asst. Deputy Atty. Gen. Finley).(3)We need not define the full reach of a magistrate's authority under the Act, or reach the broad provisions of General Order No. 104-D, in order to decide this case. Under the part of the order at issue, the magistrates perform a limited function which falls well within the range of duties Congress empowered the district courts to assign to them. The magistrate is directed to conduct a preliminary review of a closed administrative record -- closed because, under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), neither party may put any additional evidence before the district court. The magistrate gives only a recommendation to the judge, and only on the single, narrow issue: is there in the record substantial evidence to support the Secretary's decision? [Footnote 6] The magistrate may do no more than propose Page 423 U. S. 271 a recommendation, and neither § 636(b) nor the General Order gives such recommendation presumptive weight. The district judge is free to follow it or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew. The authority -- and the responsibility -- to make an informed, final determination, we emphasize, remains with the judge.The magistrate's limited role in this type of case nonetheless substantially assists the district judge in the performance of his judicial function, and benefits both him and the parties. A magistrate's review helps focus the court's attention on the relevant portions of what may be a voluminous record, from a point of view as neutral as that of an Article III judge. Review also helps the court move directly to those legal arguments made by the parties that find some support in the record. Finally, the magistrate's report puts before the district judge a preliminary evaluation of the cumulative effect of the evidence in the record, to which the parties may address argument, and in this way narrows the dispute. Each step of the process takes place with the full participation of the parties. They know precisely what recommendations the judge is receiving and may frame their arguments accordingly.We conclude that, in the context of this case the preliminary review function assigned to the magistrate, and Page 423 U. S. 272 at issue here, is one of the "additional duties" that the statute contemplates magistrates are to perform. [Footnote 7](4)The Secretary argues that the magistrate, in taking this reference, functions as a special master. From this premise, the Secretary asks us to hold that a general rule requiring automatic reference in a category of cases does not comply with the mandate of Fed.Rule Civ.Proc. 53(b) that "reference to a master shall be the exception and not the rule," made in nonjury cases "only upon a showing that some exceptional condition requires it." He also argues that, for similar reasons, the reference here is Page 423 U. S. 273 not permissible under our decision in La Buy v. Howes Leather Co., 352 U. S. 249 (1957). [Footnote 8]Section 636(b) expressly provides that a district court may, in an appropriate case and in accordance with Fed.Rule Civ.Proc. 53, call upon a magistrate to act as a special master. But the statute also is clear that not every reference, for whatever purpose, is to be characterized as a reference to a special master. It treats references to the magistrate acting as master quite separately in subsection (1), indicating by its structure that other references are of a different sort. Moreover, Rule 53(e) provides that, in nonjury cases referred to a master, the court shall accept any finding of fact that is not clearly erroneous. Under the reference in this case, however, the judge remains free to give the magistrate's recommendation whatever weight the judge decides it merits. It cannot be said, therefore, that the magistrate acts as a special master in the sense that either Rule 53 or the Federal Magistrates Act uses that term. The order of reference at issue does not constitute the magistrate a special master.The Secretary argues that the magistrate will be a master, in fact, because the judge will accept automatically the recommendation made in every case. Nothing Page 423 U. S. 274 in the record or within the scope of permissible judicial notice supports this argument; nor does common observation of the performance of United States judges remotely lend the slightest credence to such an extravagant assertion. We express no opinion with respect to either the wisdom or the validity of automatic referral in other types of cases; only the narrow portion of General Order No. 10-D that led to reference of this particular case is before us today. In this narrow range of cases, reference promotes more focused, and so more careful, decisionmaking by the district judge. We categorically reject the suggestion that judges will accept, uncritically, recommendations of magistrates.Our decision in La Buy v. Howes Leather Co., supra, does not call for a different result. In La Buy, the District Judge, on his own motion, referred to a special master two complex, protracted antitrust cases on the eve of trial. The cases had been pending before him for several years, he had heard pretrial motions, and he was familiar with the issues involved. The master, a member of the bar, was to hear and decide the entire case, subject to review by the District Judge under the "clearly erroneous" test. The judge cited the problems attendant to docket congestion to satisfy Rule 53's requirement that a reference to a special master be justified by "exceptional circumstances." The Court held that, on these facts, reference was not permissible, and affirmed the Court of Appeals' supervisory prohibition.La Buy, although nearly two decades past, is the most recent of our cases dealing with special masters, and our decision today does not erode it. [Footnote 9] The Magistrate here acted in his capacity as magistrate, not as a special Page 423 U. S. 275 master, under a reference authorized by an Act passed 10 years after La Buy was decided. Other factors distinguish this case from La Buy as well. The issues here are as simple as they were complex in La Buy, and the District Judge had not yet invested any time in familiarizing himself with the case. The reference in this case will result in a recommendation that carries only such weight as its merit commands and the sound discretion of the judge warrants. We are persuaded that the important premises from which the La Buy decision proceeded are not threatened here.Finally, our decision in Wingo v. Wedding, 418 U. S. 461 (1974), does not bear on this case. The Secretary has abandoned any claim that the statute giving the District Court jurisdiction of the case in the first instance, 42 U.S.C. § 405(g), precludes reference to a magistrate. It was the Court's reading of the habeas corpus statute, 28 U.S.C. § 2243, that formed the basis for the holding in Wingo v. Wedding.Affirmed

U.S. Supreme CourtMathews v. Weber, 423 U.S. 261 (1976)Mathews v. WeberNo. 74-850Argued November 4, 1975Decided January 14, 1976423 U.S. 261SyllabusIn addition to authorizing United States magistrates to perform certain specified statutory functions, the Federal Magistrates Act (Act) authorizes district courts to assign to magistrates "such additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S.C. § 636(b). Pursuant to that provision, the District Court adopted General Order No. 104-D, which, inter alia, requires initial reference to a magistrate of actions to review administrative determinations regarding entitlement to Social Security benefits, including Medicare. Respondent challenged the final determination of the Secretary of Health, Education, and Welfare that respondent was not entitled to claimed Medicare benefits. Under 42 U.S.C. § 405(g) a district court can review such a determination only on the basis of the pleadings and administrative record, and the court is bound by the Secretary's factual findings if supported by substantial evidence. The case was assigned to a District Judge and, at the same time, referred to a Magistrate to"prepare a proposed written order or decision, together with proposed findings of fact and conclusions of law where necessary or appropriate"for consideration by the District Judge after the Magistrate had reviewed the record and heard the parties' arguments. Contending that the reference to the Magistrate under the District Court's general order violated Fed.Rule Civ.Proc. 53(b), and was not authorized by the Act, the Secretary moved to vacate the order of reference. The District Court refused to vacate the reference order. The Court of Appeals affirmed.Held: In the context of this case, the preliminary review function assigned to the Magistrate was one of the "additional duties" that the Act contemplates magistrates are to perform. Pp. 423 U. S. 266-275.(a) Section 636(b) was enacted to permit district courts to increase the scope of responsibilities that magistrates can undertake upon reference, as part of its plan "to establish a system Page 423 U. S. 262 capable of increasing the overall efficiency of the Federal judiciary." But Congress also intended that, in such references, the district judge retain ultimate responsibility for decisionmaking. Pp. 423 U. S. 266-270.(b) In this type of case, the magistrate helps the court focus on the relevant portions of what might be a voluminous record and move directly to any substantial legal arguments by putting before the court a preliminary evaluation of the evidence in the record. Although substantially assisting the court, the magistrate performs only a preliminary review of a closed administrative record, and any recommendation to the court is confined to whether or not substantial evidence supports the Secretary's decision. The final determination remains with the judge, who has discretion to review the record anew. Pp. 423 U. S. 270-272.(c) The order of reference here does not constitute the magistrate a special master, and there is no conflict with the requirement of Fed.Rule Civ.Proc. 53(b) that "reference to a master shall be the exception and not the rule," made in nonjury cases "only upon a showing that some exceptional condition requires it." The magistrate here acts in an advisory role as a magistrate, not as a master; the judge is free to accept or reject the magistrate's recommendation in whole or in part, whereas, under Rule 53(e), the court must accept a special master's finding of fact if it is not clearly erroneous. La Buy v. Howes Leather Co., 352 U. S. 249, distinguished. Pp. 423 U. S. 272-275.503 F.2d 1049, affirmed.BURGER, C.J., delivered the opinion of the Court, in which all Members joined, except STEVENS, J., who took no part in the consideration or decision of the case. Page 423 U. S. 263

1958_234

MR. JUSTICE DOUGLAS delivered the opinion of the Court.Petitioner issued a complaint charging respondent, a retail department store, with violations of the Fur Products Labeling Act, 65 Stat. 175, 15 U.S.C. § 69. Page 359 U. S. 386 Violations were found, and a cease and desist order was issued. One of the principal violations found was that many of respondent's retail sales were falsely "invoiced" in violation of § 3 of the Act. [Footnote 1] The term "invoice" is defined in § 2(f) as"a written account, memorandum, list, or catalog, which is issued in connection with any commercial dealing in fur products or furs, and describes the particulars of any fur products or furs, transported or delivered to a purchaser, consignee, factor, bailee, correspondent, or agent, or any other person who is engaged in dealing commercially in fur products or furs."Section 5(b) provides that a fur product or fur is falsely "invoiced" if it is not "invoiced" to show (a) the name of the animal that produced the fur; and, where applicable, that the product (b) contains used fur, (c) contains bleached, dyed, or otherwise artificially colored fur, (d) is composed in whole or substantial part of paws, tails, bellies, or waste fur; (e) the name and address of the person issuing the "invoice"; and (f) the country of origin of any imported furs. Page 359 U. S. 387The Commission found that respondent had violated the "invoice" provisions of the Act by failure to include in many of its retail sales slips of fur products, (a) its address, (b) whether the fur was bleached, dyed, or otherwise artificially colored, and (c) the correct name of the animal producing the fur.The Act in § 4 also provides [Footnote 2] that a fur product is misbranded (1) if it is "falsely or deceptively labeled . . . or . . . identified," (2) if there is not affixed a label setting forth substantially the same six items of information required Page 359 U. S. 388 for an "invoice," or (3) if the label designates the animal that produced the fur by some name other than that prescribed in the Fur Products Name Guide. [Footnote 3] The Commission found that the labels on respondent's fur products were false in numerous instances by reason of the failure to include information in three of the categories listed under the second part of § 4. It held, however, that there was no evidence that the labels were deficient in the other three categories of information. Nevertheless, it issued a cease and desist order against misbranding by failure to include in the labels the required six categories of information, all of which were listed.On appeal, the Court of Appeals first eliminated the prohibitions relating to invoicing on the ground that a retail sales slip was not an "invoice" within the meaning of the Act; and second, it struck from the order the prohibition against misbranding through omission of the three categories as to which no violations were found. 254 F.2d 18. The case is here on a petition for a writ of certiorari. 358 U.S. 812.IFirst, as to invoicing. We start with an Act whose avowed purpose, inter alia, was to protect"consumers . . . against deception . . . resulting from the misbranding, false or deceptive advertising, or false invoicing of fur products and furs."S.Rep. No. 78, 82d Cong., 1st Sess., p. 1. The House Report also emphasizes that the bill was "designed to protect consumers and others from widespread abuses" arising out of false and misleading matter in advertisements and otherwise. H.R.Rep. No. 546, 82d Cong., 1st Sess., p. 1. The Title of the Act (which, though not limiting the plain meaning of the text, is nonetheless Page 359 U. S. 389 a useful aid in resolving an ambiguity (see Maguire v. Commissioner, 313 U. S. 1, 313 U. S. 9)), states that its purpose was to "protect consumers and others against . . . false invoicing of fur products and furs." 65 Stat. 175. So we have an avowed purpose to protect retail purchasers against improper "invoicing." We therefore should read § 2(f), which contains the definition of "invoice," hospitably with that end in view. Section 2(f) is not unambiguous. Yet we do not have here the problem of a penal statute that deserves strict construction. We deal with remedial legislation of a regulatory nature, where our task is to fit, if possible, all parts into an harmonious whole. Black v. Magnolia Liquor Co., 355 U. S. 24, 355 U. S. 26.Section 2(f) uses "invoice" to include a "written account" and "memorandum." So far a retail sales slip is included. Section 2(f) requires the "invoice" to be issued "in connection with any commercial dealing" in furs. A retail sale is plainly a "commercial dealing." Section 2(f) requires the invoice to be issued to a "purchaser." There again, a customer of a retailer is a "purchaser." The case for inclusion of a retail sales slip in "invoice," as that term is used in the Act, would therefore seem to be complete. What turned the Court of Appeals the other way was the last phrase in § 2(f) -- "or any other person who is engaged in dealing commercially in fur products or furs." It held that "engaged in dealing commercially" modifies not only "any other person" but also all the other preceding terms in the subsection, including "purchaser." Cf. United States v. Standard Brewery, 251 U. S. 210, 251 U. S. 218. That is a possible construction. We conclude, however, that this limiting clause is to be applied only to the last antecedent. [Footnote 4] We think it would Page 359 U. S. 390 be a partial mutilation of this Act to construe it so that the "invoice" provisions were inapplicable to retail sales. In the first place, the language of § 2(f) specifies in sweeping language the categories of persons for whose benefit the invoicing requirements were imposed, viz., purchaser, consignee, factor, bailee, correspondent, or agent. Then, as a general catch-all, "any other person who is engaged in dealing commercially in fur products or furs" was added. In the second place, only by construing "invoice" to include retail sales slips can the full protection of the Act be accorded consumers. We do not agree with the point stressed by respondent that the consumer's protection is to be found solely in the label on the fur product, and that invoices are required only at each antecedent step of delivery or transfer to a person dealing commercially in either furs or fur products. The advertising and mislabeling prohibitions in § 3(b) of the Act [Footnote 5] are plainly applicable to retail sales. Yet the prohibition of false invoices is contained in the same clause. If we held that Congress, in spite of its desire to protect consumers, withheld from them the benefits of reliable invoices, we would have to read the clauses of § 3 distributively, making only some of them applicable to retail sales. That would be a refashioning of § 3, an undertaking more consonant with the task of a congressional committee than with judicial constructionMoreover, fur product "labels," we are advised, are not pieces of cloth sewn into garments, but tags which the purchaser is likely to throw away after the purchase. The "invoice" is the only permanent record of the transaction that the retail purchaser has. Its importance was emphasized by the Commission:"Inasmuch as the invoice may serve as a documentary link connecting the sale of specific fur Page 359 U. S. 391 products back through the retailer's records with advertisements therefor, the application of the invoicing provisions of the Act to transactions between retailers and consumers represents a key implement for effective administration of the Act."The inclusion of retail sales slips in invoices has been the consistent administrative construction of the Act. [Footnote 6] This contemporaneous construction is entitled to great weight (United States v. American Trucking Ass'ns, 310 U. S. 534, 310 U. S. 549; Black v. Magnolia Liquor Co., supra; Federal Housing Administration v. Darlington, Inc., 358 U. S. 84, 358 U. S. 90) even though it was applied in cases settled by consent, rather than in litigation.Finally, respondent urges that a retailer's sale is a local transaction not subject to the exercise by Congress of the commerce power. Misbranding a drug held for sale after shipment in interstate commerce was held to be within the commerce power in United States v. Sullivan, 332 U. S. 689. That decision and its predecessors sanction what is done here.We conclude that a retail sales slip is an "invoice" within the meaning of the Act, and, accordingly, the judgment of the Court of Appeals setting aside the part of the cease and desist order which requires this retailer to give a proper "invoice" to each purchaser is reversed.IISecond, as to false labeling. The Commission, as we have noted, found that respondent had committed numerous violations of three of the six disclosure requirements Page 359 U. S. 392 contained in § 4(2) of the Act, [Footnote 7] noting that there was no evidence that it had not complied with the other three disclosure requirements of § 4(2). The cease and desist order of the Commission was, however, directed against "misbranding fur products by: 1. Failing to affix labels to fur products showing" each of the six categories of information required by § 4(2). The Court of Appeals struck from the order the prohibition with respect to the three categories as to which there was no evidence of violation.We do not believe the Commission abused the "wide discretion" that it has in a choice of a remedy "deemed adequate to cope with the unlawful practices" disclosed by the record. Jacob Siegel Co. v. Federal Trade Comm'n, 327 U. S. 608, 327 U. S. 611. It is not limited to prohibiting "the illegal practice in the precise form" existing in the past. Federal Trade Comm'n v. Ruberoid Co., 343 U. S. 470, 343 U. S. 473. This agency, like others, may fashion its relief to restrain "other like or related unlawful acts." Labor Board v. Express Pub. Co., 312 U. S. 426, 312 U. S. 436. The practice outlawed by § 4 is "misbranding." The disclosure required for a properly branded garment is specified. These disclosure requirements are so closely interrelated that the Commission might well conclude that a retailer who, for example, failed to disclose that the fur was bleached or dyed might well default when it came to disclosure of the fact that used fur was contained in the garment. One cannot generalize as to the proper scope of these orders. It depends on the facts of each case and a judgment as to the extent to which a particular violator should be fenced in. Here, as in Sherman Act decrees (Local 167, etc. v. United States, 291 U. S. 293, 291 U. S. 299; International Salt Co. v. United States, 332 U. S. 392, 332 U. S. 400-401; International Boxing Club of New York, Inc. v. United States, 358 U. S. 242, Page 359 U. S. 393 358 U. S. 253), the question of the extent to which related activity should be enjoined is one of kind and degree. We sit only to determine if the trier of facts has exercised an allowable discretion. Where the episodes of misbranding have been so extensive and so substantial in number as they were here, [Footnote 8] we think it permissible for the Commission to conclude that like and related acts of misbranding should also be enjoined as a prophylactic and preventive measure.Respondent objects to the wording of the cease and desist order, saying it suggests that the store has sold garments contrary to the disclosure requirements not found to have been violated here. The Commission bows to the suggestion that Part A, par. 1 of the cease and desist order be rephrased to enjoin "misbranding fur products by failing to affix labels to fur products showing each element of information required by the Act." We so order.On this phase of the case, the judgment of the Court of Appeals is also reversed, the cease and desist order to be rephrased as we have indicated.It is so ordered

U.S. Supreme CourtFTC v. Mandel Brothers, Inc., 359 U.S. 385 (1959)Federal Trade Commission v. Mandel Brothers, Inc.No. 234Argued March 23, 1959Decided May 4, 1959359 U.S. 385Syllabus1. The provisions of the Fur Products Labeling Act which prohibit false and deceptive invoicing apply to retail sales, and a retail sales slip is an "invoice" as that term is defined in § 2(f) of the Act. Pp. 359 U. S. 388-391.2. In a proceeding charging a retail department store with misbranding its fur products in violation of the Fur Products Labeling Act, the Federal Trade Commission found that it had committed numerous violations of three of the six disclosure requirements of § 4(2), but that there was no evidence of violations of the other three, and the Commission issued a cease and desist order against "misbranding" fur products by failing to affix labels showing each of the six categories of information required by § 4(2).Held: the Commission did not abuse its discretion by making its order apply to all six categories. Pp. 359 U. S. 391-393.3. The Commission's order is to be rephrased so as not to suggest that the store had sold garments contrary to the disclosure requirements not found to have been violated here. P. 359 U. S. 393.254 F.2d 18 reversed.

1955_383

MR. JUSTICE REED delivered the opinion of the Court.General Box Company, an owner of trees of commercial value along the main stem of the Mississippi River in Louisiana, brought this action to recover from the United States the value of its timber destroyed by the Government through its duly authorized agent, a contractor.The trees grew upon land belonging to others and located between the low- and high-water mark of the river. Such land is known in Louisiana as "batture." [Footnote 1] Since colonial days, batture has been subject to a servitude of the State for use in the construction and maintenance of levees. It may be used for these purposes without the payment of compensation to the owner. [Footnote 2] The United States cooperates with Louisiana in the containment of the Mississippi within levees. [Footnote 3] To carry out federal plans in the area in controversy, the United States requires, [Footnote 4] and Louisiana agrees to furnish, [Footnote 5] the necessary rights-of-way "without cost" for the construction of levees. Louisiana has given general authority to its Levee Boards to donate to the United States the necessary "lands, movable Page 351 U. S. 161 or immovable property, rights of way, or servitudes" for flood control use. [Footnote 6] The Fifth Louisiana Levee District, the one here involved, agreed to meet the requirements of the Federal Flood Control Act. [Footnote 7]The location of the operation giving rise to this action was at the Brabston Levee in the Fifth Louisiana Levee District. The first step taken by the United States to obtain the permission of the State to use the State's servitude in the batture here in issue was the filing of the federal plans with the State District Engineer. The plans were approved by the Engineer, and the local Levee Board was so notified. [Footnote 8] On June 10, 1947, the Levee Board received the drawings from the United States District Engineer with the following request for authority:"It is desired that this District be furnished a formal statement by your Board that rights-of-way are available for the construction of the enlargement and granting the United States a right of entry to prosecute the work. This statement may be in the form of a letter signed by the President of the Board. "Page 351 U. S. 162Under a standing resolution, adopted September 12, 1945, the President of the Board was empowered to honor applications for such authority. [Footnote 9] On June 12, 1947, the Board President responded to the United States Engineer, quoting the words of the request and adding:"The Board of Commissioners of the Fifth Louisiana Levee District hereby is glad to comply with your request and render you any assistance possible."On July 9, that letter was spread upon the minutes of the Board. We accept that, as did the Court of Appeals, as a ratification by the Board of the act of its President. On July 10, the contractors who were to execute the levee work were authorized by the United States to proceed within 20 days, and the clearing of the batture was commenced on July 22.No notice was given to petitioner of the intention to bulldoze its trees off the batture. On September 12, the petitioner discovered that the trees were being destroyed, and an objection was promptly made. The contractor, however, refused to halt its operations, relying upon its contract with the Government.Petitioner brought two actions in the District Court under the Tucker Act, 28 U.S.C. § 1346(a)(2), to recover the value of the destroyed timber. [Footnote 10] The suits Page 351 U. S. 163 were consolidated for trial, and ultimately a single judgment was entered against the United States in the amount of $10,801 plus interest. [Footnote 11] Both the United States and petitioner took appeals to the Court of Appeals, the former on the merits and the latter from so much of the judgment as fixed the interest at 4% from date of judgment. The Court of Appeals reversed, holding the United States to be free from liability. [Footnote 12] We granted certiorari to examine the liability of the United States for proceeding to clear this land without notice to petitioner, the owner of the trees, and thus without granting petitioner a reasonable opportunity to salvage the timber. [Footnote 13]One of the defenses relied upon by the United States throughout this litigation is a claim that it is not liable to petitioner for the timber losses because it received rights-of-way on the land involved from the Levee Board, and that the Levee Board legally appropriated those rights-of-way without compensation under its riparian servitude. Petitioner concedes that, under the civil law of Louisiana, the property on which its trees were standing, being batture, is subject to a riparian servitude for use by the State of Louisiana in constructing and repairing levees, and that historically the owner of such Page 351 U. S. 164 property has been required to permit State use without compensation of such part thereof as might be needed for levee purposes. And it is not denied that the timber on this land, as well as the land itself, is subject to the exercise of the servitude for levee purposes. [Footnote 14]Petitioner in effect does claim, however, that the State did not effectively exercise the riparian servitude for the reason that the appropriation here was arbitrary, and therefore beyond the power of the State. This contention is based upon the fact that no notice of the proposed destruction was given to petitioner. It is argued that, under Louisiana law, which, of course, defines the bounds of the riparian servitude, the power possessed by the State by reason of the servitude is not an unlimited and arbitrary power; [Footnote 15] that it would be arbitrary, oppressive, and unjust to exercise the State's rights under the servitude in the circumstances of this case without prior notice to petitioner; that therefore the attempt by the State to exercise the servitude without such notice was ineffective to cause an appropriation of the timber pursuant to the Page 351 U. S. 165 servitude. If Louisiana could not exercise its rights under the servitude without first giving notice to petitioner, the timber here involved was never successfully taken by the State free of an obligation to compensate for the taking. [Footnote 16] It would follow that the United States received no rights from the Levee Board permitting destruction of the trees by it free of that obligation. The Court of Appeals held, based upon its analysis of Louisiana law, that prior notice to petitioner was not a prerequisite to an appropriation of its timber for levee purposes. We ordinarily accept the determinations of the Courts of Appeals on questions of local law, and we do so here. Ragan v. Merchants Transfer & Warehouse Co., 337 U. S. 530, 337 U. S. 534; Huddleston v. Dwyer, 322 U. S. 232, 322 U. S. 237.The Louisiana courts have made no pronouncement which directly controls this question. But see Board of Comm'rs v. Trouille, 212 La. 152, 31 So. 2d 700. The Supreme Court of Louisiana has, however, as recently as 1946, reviewed the long history of the riparian servitude. Dickson v. Board of Comm'rs, 210 La. 121, 26 So. 2d 474. In that case, it was noted that:". . . while, in all of the remaining states of the Union, lands necessary for levee purposes can only be used after expropriation and proper indemnification, in Louisiana, the State has the right to act first, i.e., the authority to appropriate such land to a use to which it is subject under its very title, and talk later.""* * * *" ". . . And however unfair it may seem to the owners of this type of land, they are without right to complain, because their acquisition of such land was subject by law to this ancient servitude, and the Page 351 U. S. 166 private mischief must be endured, rather than the public inconvenience or calamity."210 La. at 132, 136, 26 So. 2d at 478, 479. The court further stated that the rights of the State under the servitude can be exercised in the way found to be "most expeditious from an engineering, economical, and practical standpoint." 210 La. at 127, 138, 26 So. 2d at 480; Board of Comm'rs v. Franklin, 219 La. 859, 866, 54 So. 2d 125, 127-128. The levee enlargement plan here called for bulldozing standing timber for reasons of economy -- that operation admittedly being a less expensive method for clearing land than removing the stumps of cut timber. The servitude was developed so as to insure "that the shores of navigable rivers and streams in this state would always be kept free for the public for levee . . . purposes." 210 La. at 131-132, 26 So. 2d at 478. This historical background makes clear that the rights of the State in property subject to the servitude are very broad. By law, and for the good of all, lands were made available to the State for levee purposes in as convenient a manner to the State as was necessary for the public welfare, and with little regard for the severity of the obligations imposed on the individual property owner. Nothing in the development of the servitude indicates that, before the State can exercise its obviously comprehensive rights, it must provide an opportunity to remove timber from batture.Since, as we hold, petitioner's property was effectively appropriated by state authorities pursuant to the servitude, the United States cannot be liable to petitioner for the value of the property. The State, as owner of the servitude, legally could have destroyed the timber without prior notice and without any opportunity for mitigation of losses, and yet be free of liability to petitioner. The destruction, it seems to us, was consistent with the Page 351 U. S. 167 rights of the State under the servitude. Rather than undertake the levee project itself, Louisiana, through one of its agencies, donated its rights as against petitioner's timber to the United States. The United States, as donee of those rights, could exercise them to their full extent without incurring liability, just as its donor could have done.The petitioner sought compensation for the destruction of the trees based upon a claim that the "destruction of said timber was (a) taking . . . within the meaning of the Fifth Amendment to the Federal Constitution." But this property was not taken by the United States in the exercise of its power of eminent domain. In effect, the timber was "owned" by Louisiana for levee purposes, and the United States succeeded to that "ownership" by "conveyance." Louisiana furnished its batture as required by the law of both the United States and Louisiana for use in protecting the property in the State from floods. Petitioner did not assert in its complaints or in its question presented on petition for certiorari that the destruction violated the Due Process Clause of the Fifth Amendment. [Footnote 17]Affirmed

U.S. Supreme CourtGeneral Box Co. v. United States, 351 U.S. 159 (1956)General Box Co. v. United StatesNo. 383Argued March 28, 1956Decided May 7, 1956351 U.S. 159SyllabusPetitioner owned timber on "batture," land located between low- and high-water mark on the Mississippi River in Louisiana, which was subject to a servitude of the State for levee purposes. The rights of the State had been donated to the United States. Without notice to petitioner, the timber was destroyed by a government contractor in levee-building operations, and petitioner sued in the federal court under the Tucker Act to recover its value.Held:1. This Court accepts the determination of the Court of Appeals that, under Louisiana law, prior notice to petitioner was not a prerequisite to an appropriation of its timber for levee purposes. Pp. 351 U. S. 164-166.2. Petitioner's property was effectively appropriated by state authorities pursuant to the servitude, and therefore the United States is not liable to petitioner for its value. Pp. 351 U. S. 166-167.3. The State having donated to the United States its rights as against petitioner's timber, the United States could exercise those rights to the fullest extent without incurring liability, just as the State could have done. P. 351 U. S. 167.4. The destruction of petitioner's timber was not a taking by the United States in the exercise of the power of eminent domain for which the Fifth Amendment required compensation. P. 351 U. S. 167.224 F.2d 7 affirmed. Page 351 U. S. 160

1989_88-1503

Chief Justice REHNQUIST delivered the opinion of the Court.Petitioner Nancy Beth Cruzan was rendered incompetent as a result of severe injuries sustained during an automobile accident. Copetitioners Lester and Joyce Cruzan, Nancy's parents and coguardians, sought a court order directing the withdrawal of their daughter's artificial feeding and hydration equipment after it became apparent that she had virtually no chance of recovering her cognitive faculties. The Supreme Court of Missouri held that, because there was no clear and convincing evidence of Nancy's desire to have life-sustaining treatment withdrawn under such circumstances, her parents lacked authority to effectuate such a request. We granted certiorari, 492 U.S. 917 (1989), and now affirm. Page 497 U. S. 266On the night of January 11, 1983, Nancy Cruzan lost control of her car as she traveled down Elm Road in Jasper County, Missouri. The vehicle overturned, and Cruzan was discovered lying face down in a ditch without detectable respiratory or cardiac function. Paramedics were able to restore her breathing and heartbeat at the accident site, and she was transported to a hospital in an unconscious state. An attending neurosurgeon diagnosed her as having sustained probable cerebral contusions compounded by significant anoxia (lack of oxygen). The Missouri trial court in this case found that permanent brain damage generally results after 6 minutes in an anoxic state; it was estimated that Cruzan was deprived of oxygen from 12 to 14 minutes. She remained in a coma for approximately three weeks, and then progressed to an unconscious state in which she was able to orally ingest some nutrition. In order to ease feeding and further the recovery, surgeons implanted a gastrostomy feeding and hydration tube in Cruzan with the consent of her then husband. Subsequent rehabilitative efforts proved unavailing. She now lies in a Missouri state hospital in what is commonly referred to as a persistent vegetative state: generally, a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive function. [Footnote 1] The State of Missouri is bearing the cost of her care. Page 497 U. S. 267After it had become apparent that Nancy Cruzan had virtually no chance of regaining her mental faculties, her parents asked hospital employees to terminate the artificial nutrition and hydration procedures. All agree that such a Page 497 U. S. 268 removal would cause her death. The employees refused to honor the request without court approval. The parents then sought and received authorization from the state trial court for termination. The court found that a person in Nancy's condition had a fundamental right under the State and Federal Constitutions to refuse or direct the withdrawal of "death prolonging procedures." App. to Pet. for Cert. A99. The court also found that Nancy's"expressed thoughts at age twenty-five in somewhat serious conversation with a housemate friend that, if sick or injured, she would not wish to continue her life unless she could live at least halfway normally suggests that, given her present condition, she would not wish to continue on with her nutrition and hydration."Id. at A97-A98.The Supreme Court of Missouri reversed by a divided vote. The court recognized a right to refuse treatment embodied in the common law doctrine of informed consent, but expressed skepticism about the application of that doctrine in the circumstances of this case. Cruzan v. Harmon, 760 S.W.2d 408, 416-417 (Mo.1988) (en banc). The court also declined to read a broad right of privacy into the State Constitution which would "support the right of a person to refuse medical treatment in every circumstance," and expressed doubt as to whether such a right existed under the United States Constitution. Id. at 417-418. It then decided that the Missouri Living Will statute, Mo.Rev.Stat. § 459.010 et seq. (1986), embodied a state policy strongly favoring the preservation of life. 760 S.W.2d, at 419-420. The court found that Cruzan's statements to her roommate regarding her desire to live or die under certain conditions were "unreliable for the purpose of determining her intent," id. at 424, "and thus insufficient to support the coguardians claim to exercise substituted judgment on Nancy's behalf." Id. at 426. It rejected the argument that Cruzan's parents were entitled to order the termination of her medical treatment, Page 497 U. S. 269 concluding that"no person can assume that choice for an incompetent in the absence of the formalities required under Missouri's Living Will statutes or the clear and convincing, inherently reliable evidence absent here."Id. at 425. The court also expressed its view that "[b]road policy questions bearing on life and death are more properly addressed by representative assemblies" than judicial bodies. Id. at 426.We granted certiorari to consider the question of whether Cruzan has a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment from her under these circumstances.At common law, even the touching of one person by another without consent and without legal justification was a battery. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 9, pp. 39-42 (5th ed. 1984). Before the turn of the century, this Court observed that"[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."Union Pacific R. Co. v. Botsford, 141 U. S. 250, 141 U. S. 251 (1891). This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. Justice Cardozo, while on the Court of Appeals of New York, aptly described this doctrine:"Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages."Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914). The informed consent doctrine has become firmly entrenched in American tort law. See Dobbs, Keeton, & Owen, supra, § 32, pp. 189-192; F. Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed. 1990). Page 497 U. S. 270The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment. Until about 15 years ago and the seminal decision in In re Quinlan, 70 N.J. 10, 355 A.2d 647, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922 (1976), the number of right-to-refuse-treatment decisions were relatively few. [Footnote 2] Most of the earlier cases involved patients who refused medical treatment forbidden by their religious beliefs, thus implicating First Amendment rights as well as common law rights of self-determination. [Footnote 3] More recently, however, with the advance of medical technology capable of sustaining life well past the point where natural forces would have brought certain death in earlier times, cases involving the right to refuse life-sustaining treatment have burgeoned. See 760 S.W.2d at 412, n. 4 (collecting 54 reported decisions from 1976-1988).In the Quinlan case, young Karen Quinlan suffered severe brain damage as the result of anoxia, and entered a persistent vegetative state. Karen's father sought judicial approval to disconnect his daughter's respirator. The New Jersey Supreme Court granted the relief, holding that Karen had a right of privacy grounded in the Federal Constitution to terminate treatment. In re Quinlan, 70 N.J. at 38-42, 355 A.2d at 662-664. Recognizing that this right was not absolute, however, the court balanced it against asserted state interests. Noting that the State's interest "weakens and the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims," the court concluded that the state interests had to give way in that case. Id. at Page 497 U. S. 271 41, 355 A.2d at 664. The court also concluded that the "only practical way" to prevent the loss of Karen's privacy right due to her incompetence was to allow her guardian and family to decide "whether she would exercise it in these circumstances." Ibid.After Quinlan, however, most courts have based a right to refuse treatment either solely on the common law right to informed consent or on both the common law right and a constitutional privacy right. See L. Tribe, American Constitutional Law § 15-11, p. 1365 (2d ed. 1988). In Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977), the Supreme Judicial Court of Massachusetts relied on both the right of privacy and the right of informed consent to permit the withholding of chemotherapy from a profoundly-retarded 67-year-old man suffering from leukemia. Id. at 737-738, 370 N.E.2d at 424. Reasoning that an incompetent person retains the same rights as a competent individual "because the value of human dignity extends to both," the court adopted a "substituted judgment" standard whereby courts were to determine what an incompetent individual's decision would have been under the circumstances. Id. at 745, 752-753, 757-758, 370 N.E.2d at 427, 431, 434. Distilling certain state interests from prior case law -- the preservation of life, the protection of the interests of innocent third parties, the prevention of suicide, and the maintenance of the ethical integrity of the medical profession -- the court recognized the first interest as paramount and noted it was greatest when an affliction was curable,"as opposed to the State interest where, as here, the issue is not whether, but when, for how long, and at what cost to the individual [a] life may be briefly extended."Id. at 742, 370 N.E.2d at 426.In In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, cert. denied, 464 U.S. 858 (1981), the New York Court of Appeals declined to base a right to refuse treatment on a constitutional privacy right. Instead, it found such a right "adequately Page 497 U. S. 272 supported" by the informed consent doctrine. Id. at 376-377, 438 N.Y.S.2d at 272, 420 N.E.2d at 70. In In re Eichner (decided with In re Storar, supra), an 83-year-old man who had suffered brain damage from anoxia entered a vegetative state and was thus incompetent to consent to the removal of his respirator. The court, however, found it unnecessary to reach the question of whether his rights could be exercised by others, since it found the evidence clear and convincing from statements made by the patient when competent that he "did not want to be maintained in a vegetative coma by use of a respirator." Id. at 380, 438 N.Y.S.2d at 274, 420 N.E.2d at 72. In the companion Storar case, a 52-year-old man suffering from bladder cancer had been profoundly retarded during most of his life. Implicitly rejecting the approach taken in Saikewicz, supra, the court reasoned that, due to such life-long incompetency, "it is unrealistic to attempt to determine whether he would want to continue potentially life-prolonging treatment if he were competent." 52 N.Y.2d at 380, 438 N.Y.S.2d at 275, 420 N.E.2d at 72. As the evidence showed that the patient's required blood transfusions did not involve excessive pain and, without them, his mental and physical abilities would deteriorate, the court concluded that it should not"allow an incompetent patient to bleed to death because someone, even someone as close as a parent or sibling, feels that this is best for one with an incurable disease."Id. at 382, 438 N.Y.S.2d at 275, 420 N.E.2d at 73.Many of the later cases build on the principles established in Quinlan, Saikewicz and Storar/Eichner. For instance, in In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985), the same court that decided Quinlan considered whether a nasogastric feeding tube could be removed from an 84-year-old incompetent nursing-home resident suffering irreversible mental and physical ailments. While recognizing that a federal right of privacy might apply in the case, the court, contrary to its approach in Quinlan, decided to base its decision on the common law right to self-determination and informed consent. Page 497 U. S. 273 98 N.J. at 348, 486 A.2d at 1223."On balance, the right to self-determination ordinarily outweighs any countervailing state interests, and competent persons generally are permitted to refuse medical treatment, even at the risk of death. Most of the cases that have held otherwise, unless they involved the interest in protecting innocent third parties, have concerned the patient's competency to make a rational and considered choice."Id. at 353-354, 486 A.2d at 1225.Reasoning that the right of self-determination should not be lost merely because an individual is unable to sense a violation of it, the court held that incompetent individuals retain a right to refuse treatment. It also held that such a right could be exercised by a surrogate decisionmaker using a "subjective" standard when there was clear evidence that the incompetent person would have exercised it. Where such evidence was lacking, the court held that an individual's right could still be invoked in certain circumstances under objective "best interest" standards. Id. at 361-368, 486 A.2d at 1229-1233. Thus, if some trustworthy evidence existed that the individual would have wanted to terminate treatment, but not enough to clearly establish a person's wishes for purposes of the subjective standard, and the burden of a prolonged life from the experience of pain and suffering markedly outweighed its satisfactions, treatment could be terminated under a "limited-objective" standard. Where no trustworthy evidence existed, and a person's suffering would make the administration of life-sustaining treatment inhumane, a "pure-objective" standard could be used to terminate treatment. If none of these conditions obtained, the court held it was best to err in favor of preserving life. Id. at 364-368, 486 A.2d at 1231-1233.The court also rejected certain categorical distinctions that had been drawn in prior refusal-of-treatment cases as lacking substance for decision purposes: the distinction between actively hastening death by terminating treatment and passively Page 497 U. S. 274 allowing a person to die of a disease; between treating individuals as an initial matter versus withdrawing treatment afterwards; between ordinary versus extraordinary treatment; and between treatment by artificial feeding versus other forms of life-sustaining medical procedures. Id.. at 369-374, 486 A.2d at 1233-1237. As to the last item, the court acknowledged the "emotional significance" of food, but noted that feeding by implanted tubes is a"medical procedur[e] with inherent risks and possible side effects, instituted by skilled healthcare providers to compensate for impaired physical functioning"which analytically was equivalent to artificial breathing using a respirator. Id. at 373, 486 A.2d at 1236. [Footnote 4]In contrast to Conroy, the Court of Appeals of New York recently refused to accept less than the clearly expressed wishes of a patient before permitting the exercise of her right to refuse treatment by a surrogate decisionmaker. In re Westchester County Medical Center on behalf of O'Connor, 72 N.Y.2d 517, 534 N.Y.S.2d 886, 531 N.E.2d 607 (1988) (O'Connor). There, the court, over the objection of the patient's family members, granted an order to insert a feeding tube into a 77-year-old Page 497 U. S. 275 woman rendered incompetent as a result of several strokes. While continuing to recognize a common law right to refuse treatment, the court rejected the substituted judgment approach for asserting it"because it is inconsistent with our fundamental commitment to the notion that no person or court should substitute its judgment as to what would be an acceptable quality of life for another. Consequently, we adhere to the view that, despite its pitfalls and inevitable uncertainties, the inquiry must always be narrowed to the patient's expressed intent, with every effort made to minimize the opportunity for error."Id. at 530, 534 N.Y.S.2d at 892, 531 N.E.2d at 613 (citation omitted). The court held that the record lacked the requisite clear and convincing evidence of the patient's expressed intent to withhold life-sustaining treatment. Id. at 531-534, 534 N.Y.S.2d at 892-894, 531 N.E.2d at 613-615.Other courts have found state statutory law relevant to the resolution of these issues. In Conservatorship of Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840, cert. denied, 488 U.S. 958 (1988), the California Court of Appeal authorized the removal of a nasogastric feeding tube from a 44-year-old man who was in a persistent vegetative state as a result of an auto accident. Noting that the right to refuse treatment was grounded in both the common law and a constitutional right of privacy, the court held that a state probate statute authorized the patient's conservator to order the withdrawal of life-sustaining treatment when such a decision was made in good faith based on medical advice and the conservatee's best interests. While acknowledging that "to claim that [a patient's] right to choose' survives incompetence is a legal fiction at best," the court reasoned that the respect society accords to persons as individuals is not lost upon incompetence, and is best preserved by allowing others "to make a decision that reflects [a patient's] interests more closely than would a purely technological decision to do whatever is possible." [Footnote 5] Page 497 U. S. 276 Id., 200 Cal.App.3d, at 208, 246 Cal.Rptr., at 854-855. See also In re Conservatorship of Torres, 357 N.W.2d 332 (Minn.1984) (Minnesota court had constitutional and statutory authority to authorize a conservator to order the removal of an incompetent individual's respirator since in patient's best interests).In In re Estate of Longeway, 133 Ill. 2d 33, 139 Ill.Dec. 780, 549 N.E.2d 292 (1989), the Supreme Court of Illinois considered whether a 76-year-old woman rendered incompetent from a series of strokes had a right to the discontinuance of artificial nutrition and hydration. Noting that the boundaries of a federal right of privacy were uncertain, the court found a right to refuse treatment in the doctrine of informed consent. Id. at 43-45, 139 Ill.Dec. at 784-785, 549 N.E.2d at 296-297. The court further held that the State Probate Act impliedly authorized a guardian to exercise a ward's right to refuse artificial sustenance in the event that the ward was terminally ill and irreversibly comatose. Id. at 45-47, 139 Ill.Dec. at 786, 549 N.E.2d at 298. Declining to adopt a best interests standard for deciding when it would be appropriate to exercise a ward's right because it "lets another make a determination of a patient's quality of life," the court opted instead for a substituted judgment standard. Id. at 49, 139 Ill.Dec. at 787, 549 N.E.2d at 299. Finding the "expressed intent" standard utilized in O'Connor, supra, too rigid, the court noted that other clear and convincing evidence of the patient's intent could be considered. 133 Ill. 2d at 50-51, 139 Ill.Dec. at 787, 549 N.E.2d at 300. The court also adopted the "consensus opinion [that] treats artificial nutrition and hydration as medical treatment." Id. at 42, 139 Ill.Dec. at 784, 549 N.E.2d at 296. Cf. McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 705, Page 497 U. S. 277 553 A.2d 596, 603 (1989) (right to withdraw artificial nutrition and hydration found in the Connecticut Removal of Life Support Systems Act, which "provid[es] functional guidelines for the exercise of the common law and constitutional rights of self-determination"; attending physician authorized to remove treatment after finding that patient is in a terminal condition, obtaining consent of family, and considering expressed wishes of patient). [Footnote 6]As these cases demonstrate, the common law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment. Beyond that, these decisions demonstrate both similarity and diversity in their approach to decision of what all agree is a perplexing question with unusually strong moral and ethical overtones. State courts have available to them for decision a number of sources -- state constitutions, statutes, and common law -- which are not available to us. In this Court, the question is simply and starkly whether the United States Constitution prohibits Missouri from choosing the rule of decision which it did. This is the first case in which we have been squarely presented with the issue of whether the United States Constitution grants what is in common parlance referred to as a "right to die." We follow the judicious counsel of our decision in Twin City Bank v. Nebeker, 167 U. S. 196, 167 U. S. 202 (1897), where we said that, in deciding"a question Page 497 U. S. 278 of such magnitude and importance . . . it is the [better] part of wisdom not to attempt, by any general statement, to cover every possible phase of the subject."The Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. In Jacobson v. Massachusetts, 197 U. S. 11, 197 U. S. 24-30 (1905), for instance, the Court balanced an individual's liberty interest in declining an unwanted smallpox vaccine against the State's interest in preventing disease. Decisions prior to the incorporation of the Fourth Amendment into the Fourteenth Amendment analyzed searches and seizures involving the body under the Due Process Clause and were thought to implicate substantial liberty interests. See, e.g., Breithaupt v. Abram, 352 U. S. 432, 352 U. S. 439 (1957) ("As against the right of an individual that his person be held inviolable . . . must be set the interests of society. . . .")Just this Term, in the course of holding that a State's procedures for administering antipsychotic medication to prisoners were sufficient to satisfy due process concerns, we recognized that prisoners possess"a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment."Washington v. Harper, 494 U. S. 210, 494 U. S. 221-222 (1990); see also id. at 494 U. S. 229 ("The forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty"). Still other cases support the recognition of a general liberty interest in refusing medical treatment. Vitek v. Jones, 445 U. S. 480, 445 U. S. 494 (1980) (transfer to mental hospital coupled with mandatory behavior modification treatment implicated liberty interests); Parham v. J.R., 442 U. S. 584, 442 U. S. 600 (1979) ("a child, in common with adults, has a substantial liberty Page 497 U. S. 279 interest in not being confined unnecessarily for medical treatment").But determining that a person has a "liberty interest" under the Due Process Clause does not end the inquiry; [Footnote 7] "whether respondent's constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests." Youngberg v. Romeo, 457 U. S. 307, 457 U. S. 321 (1982). See also Mills v. Rogers, 457 U. S. 291, 457 U. S. 299 (1982).Petitioners insist that, under the general holdings of our cases, the forced administration of life-sustaining medical treatment, and even of artificially-delivered food and water essential to life, would implicate a competent person's liberty interest. Although we think the logic of the cases discussed above would embrace such a liberty interest, the dramatic consequences involved in refusal of such treatment would inform the inquiry as to whether the deprivation of that interest is constitutionally permissible. But for purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.Petitioners go on to assert that an incompetent person should possess the same right in this respect as is possessed by a competent person. They rely primarily on our decisions in Parham v. J.R., supra, and Youngberg v. Romeo, 457 U. S. 307 (1982). In Parham, we held that a mentally disturbed minor child had a liberty interest in "not being confined unnecessarily for medical treatment," 442 U.S. at 442 U. S. 600, but we certainly did not intimate that such a minor child, after commitment, would have a liberty interest in refusing treatment. In Youngberg, we held that a seriously retarded adult had a liberty Page 497 U. S. 280 interest in safety and freedom from bodily restraint, 457 U.S. at 457 U. S. 320. Youngberg, however, did not deal with decisions to administer or withhold medical treatment.The difficulty with petitioners' claim is that, in a sense, it begs the question: an incompetent person is not able to make an informed and voluntary choice to exercise a hypothetical right to refuse treatment or any other right. Such a "right" must be exercised for her, if at all, by some sort of surrogate. Here, Missouri has in effect recognized that, under certain circumstances, a surrogate may act for the patient in electing to have hydration and nutrition withdrawn in such a way as to cause death, but it has established a procedural safeguard to assure that the action of the surrogate conforms as best it may to the wishes expressed by the patient while competent. Missouri requires that evidence of the incompetent's wishes as to the withdrawal of treatment be proved by clear and convincing evidence. The question, then, is whether the United States Constitution forbids the establishment of this procedural requirement by the State. We hold that it does not.Whether or not Missouri's clear and convincing evidence requirement comports with the United States Constitution depends in part on what interests the State may properly seek to protect in this situation. Missouri relies on its interest in the protection and preservation of human life, and there can be no gainsaying this interest. As a general matter, the States -- indeed, all civilized nations -- demonstrate their commitment to life by treating homicide as serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide. [Footnote 8] We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death. Page 497 U. S. 281But in the context presented here, a State has more particular interests at stake. The choice between life and death is a deeply personal decision of obvious and overwhelming finality. We believe Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements. It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment. Not all incompetent patients will have loved ones available to serve as surrogate decisionmakers. And even where family members are present, "[t]here will, of course, be some unfortunate situations in which family members will not act to protect a patient." In re Jobes, 108 N.J. 394, 419, 529 A.2d 434, 477 (1987). A State is entitled to guard against potential abuses in such situations. Similarly, a State is entitled to consider that a judicial proceeding to make a determination regarding an incompetent's wishes may very well not be an adversarial one, with the added guarantee of accurate factfinding that the adversary process brings with it. [Footnote 9] See Ohio v. Akron Center for Reproductive Page 497 U. S. 282 Health, post at 497 U. S. 515-516 (1990). Finally, we think a State may properly decline to make judgments about the "quality" of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.In our view, Missouri has permissibly sought to advance these interests through the adoption of a "clear and convincing" standard of proof to govern such proceedings."The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to""instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication."Addington v. Texas, 441 U. S. 418, 441 U. S. 423 (1979) (quoting In re Winship, 397 U. S. 358, 397 U. S. 370 (1970) (Harlan, J., concurring))."This Court has mandated an intermediate standard of proof -- 'clear and convincing evidence' -- when the individual interests at stake in a state proceeding are both 'particularly important' and 'more substantial than mere loss of money.'"Santosky v. Kramer, 455 U. S. 745, 455 U. S. 756 (1982) (quoting Addington, supra, at 441 U. S. 424). Thus, such a standard has been required in deportation proceedings, Woodby v. INS, 385 U. S. 276 (1966), in denaturalization proceedings, Schneiderman v. United States, 320 U. S. 118 (1943), in civil commitment proceedings, Addington, supra, and in proceedings for the termination of parental rights. Santosky, supra. [Footnote 10] Further, Page 497 U. S. 283 this level of proof,"or an even higher one, has traditionally been imposed in cases involving allegations of civil fraud, and in a variety of other kinds of civil cases involving such issues as . . . lost wills, oral contracts to make bequests, and the like."Woodby, supra, 385 U.S. at 385 U. S. 285, n. 18.We think it self-evident that the interests at stake in the instant proceedings are more substantial, both on an individual and societal level, than those involved in a run-of-the-mine civil dispute. But not only does the standard of proof reflect the importance of a particular adjudication, it also serves as "a societal judgment about how the risk of error should be distributed between the litigants." Santosky, supra, 455 U.S. at 455 U. S. 755; Addington, supra, 441 U.S. at 441 U. S. 423. The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision. We believe that Missouri may permissibly place an increased risk of an erroneous decision on those seeking to terminate an incompetent individual's life-sustaining treatment. An erroneous decision not to terminate results in a maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction. In Santosky, one of the factors which led the Court to require proof by clear and convincing evidence in a proceeding to terminate parental rights was that a decision in such a case was final and irrevocable. Santosky, supra, 455 U.S. at 455 U. S. 759. The same must surely be said of the decision to discontinue hydration and nutrition of a patient such as Nancy Cruzan, which all agree will result in her death. Page 497 U. S. 284It is also worth noting that most, if not all, States simply forbid oral testimony entirely in determining the wishes of parties in transactions which, while important, simply do not have the consequences that a decision to terminate a person's life does. At common law and by statute in most States, the parol evidence rule prevents the variations of the terms of a written contract by oral testimony. The statute of frauds makes unenforceable oral contracts to leave property by will, and statutes regulating the making of wills universally require that those instruments be in writing. See 2 A. Corbin, Contracts § 398, pp. 360-361 (1950); 2 W. Page, Law of Wills §§ 19.3-19.5, pp. 61-71 (1960). There is no doubt that statutes requiring wills to be in writing, and statutes of frauds which require that a contract to make a will be in writing, on occasion frustrate the effectuation of the intent of a particular decedent, just as Missouri's requirement of proof in this case may have frustrated the effectuation of the not-fully-expressed desires of Nancy Cruzan. But the Constitution does not require general rules to work faultlessly; no general rule can.In sum, we conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. We note that many courts which have adopted some sort of substituted judgment procedure in situations like this, whether they limit consideration of evidence to the prior expressed wishes of the incompetent individual, or whether they allow more general proof of what the individual's decision would have been, require a clear and convincing standard of proof for such evidence. See, e.g., Longeway, 133 Ill. 2d at 50-51, 139 Ill.Dec. at 787, 549 N.E.2d at 300; McConnell, 209 Conn., at 707-710, 553 A.2d at 604-605; O'Connor, 72 N.Y.2d at 529-530, 531 N.E.2d at 613; In re Gardner, 534 A.2d 947, 952-953 (Me.1987); In re Jobes, 108 N.J. at 412-413, 529 A.2d Page 497 U. S. 285 at 443; Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 11, 426 N.E.2d 809, 815 (1980).The Supreme Court of Missouri held that, in this case, the testimony adduced at trial did not amount to clear and convincing proof of the patient's desire to have hydration and nutrition withdrawn. In so doing, it reversed a decision of the Missouri trial court, which had found that the evidence "suggest[ed]" Nancy Cruzan would not have desired to continue such measures, App. to Pet. for Cert. A98, but which had not adopted the standard of "clear and convincing evidence" enunciated by the Supreme Court. The testimony adduced at trial consisted primarily of Nancy Cruzan's statements, made to a housemate about a year before her accident, that she would not want to live should she face life as a "vegetable," and other observations to the same effect. The observations did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. We cannot say that the Supreme Court of Missouri committed constitutional error in reaching the conclusion that it did. [Footnote 11]Petitioners alternatively contend that Missouri must accept the "substituted judgment" of close family members even in the absence of substantial proof that their views reflect Page 497 U. S. 286 the views of the patient. They rely primarily upon our decisions in Michael H. v. Gerald D., 491 U. S. 110 (1989), and Parham v. J.R., 442 U. S. 584 (1979). But we do not think these cases support their claim. In Michael H., we upheld the constitutionality of California's favored treatment of traditional family relationships; such a holding may not be turned around into a constitutional requirement that a State must recognize the primacy of those relationships in a situation like this. And in Parham, where the patient was a minor, we also upheld the constitutionality of a state scheme in which parents made certain decisions for mentally ill minors. Here again, petitioners would seek to turn a decision which allowed a State to rely on family decisionmaking into a constitutional requirement that the State recognize such decisionmaking. But constitutional law does not work that way.No doubt is engendered by anything in this record but that Nancy Cruzan's mother and father are loving and caring parents. If the State were required by the United States Constitution to repose a right of "substituted judgment" with anyone, the Cruzans would surely qualify. But we do not think the Due Process Clause requires the State to repose judgment on these matters with anyone but the patient herself. Close family members may have a strong feeling -- a feeling not at all ignoble or unworthy, but not entirely disinterested, either -- that they do not wish to witness the continuation of the life of a loved one which they regard as hopeless, meaningless, and even degrading. But there is no automatic assurance that the view of close family members will necessarily be the same as the patient's would have been had she been confronted with the prospect of her situation while competent. All of the reasons previously discussed for allowing Missouri to require clear and convincing evidence of the patient's wishes lead us to conclude that the State may Page 497 U. S. 287 choose to defer only to those wishes, rather than confide the decision to close family members. [Footnote 12]The judgment of the Supreme Court of Missouri isAffirmed

U.S. Supreme CourtCruzan v. Director, MDH, 497 U.S. 261 (1990)Cruzan by Cruzan v. Director, Missouri Department of HealthNo. 88-1503Argued Dec. 6, 1989Decided June 25, 1990497 U.S. 261SyllabusPetitioner Nancy Cruzan is incompetent, having sustained severe injuries in an automobile accident, and now lies in a Missouri state hospital in what is referred to as a persistent vegetative state: generally, a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive function. The State is bearing the cost of her care. Hospital employees refused, without court approval, to honor the request of Cruzan's parents, copetitioners here, to terminate her artificial nutrition and hydration, since that would result in death. A state trial court authorized the termination, finding that a person in Cruzan's condition has a fundamental right under the State and Federal Constitutions to direct or refuse the withdrawal of death-prolonging procedures, and that Cruzan's expression to a former housemate that she would not wish to continue her life if sick or injured unless she could live at least halfway normally suggested that she would not wish to continue on with her nutrition and hydration. The State Supreme Court reversed. While recognizing a right to refuse treatment embodied in the common-law doctrine of informed consent, the court questioned its applicability in this case. It also declined to read into the State Constitution a broad right to privacy that would support an unrestricted right to refuse treatment and expressed doubt that the Federal Constitution embodied such a right. The court then decided that the State Living Will statute embodied a state policy strongly favoring the preservation of life, and that Cruzan's statements to her housemate were unreliable for the purpose of determining her intent. It rejected the argument that her parents were entitled to order the termination of her medical treatment, concluding that no person can assume that choice for an incompetent in the absence of the formalities required by the Living Will statute or clear and convincing evidence of the patient's wishes.Held:1. The United States Constitution does not forbid Missouri to require that evidence of an incompetent's wishes as to the withdrawal of life-sustaining treatment be proved by clear and convincing evidence. Pp. 497 U. S. 269-285. Page 497 U. S. 262(a) Most state courts have based a right to refuse treatment on the common law right to informed consent, see, e.g., In re Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64, or on both that right and a constitutional privacy right, see, e.g., Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417. In addition to relying on state constitutions and the common law, state courts have also turned to state statutes for guidance, see, e.g., Conservatorship of Drabick, 200 Cal. App. 3d 185, 245 Cal. Rptr. 840. However, these sources are not available to this Court, where the question is simply whether the Federal Constitution prohibits Missouri from choosing the rule of law which it did.(b) A competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment. Cf., e.g., Jacobson v. Massachusetts, 197 U. S. 11, 197 U. S. 24-30. However, the question whether that constitutional right has been violated must be determined by balancing the liberty interest against relevant state interests. For purposes of this case, it is assumed that a competent person would have a constitutionally protected right to refuse lifesaving hydration and nutrition. This does not mean that an incompetent person should possess the same right, since such a person is unable to make an informed and voluntary choice to exercise that hypothetical right or any other right. While Missouri has in effect recognized that, under certain circumstances, a surrogate may act for the patient in electing to withdraw hydration and nutrition and thus cause death, it has established a procedural safeguard to assure that the surrogate's action conforms as best it may to the wishes expressed by the patient while competent. Pp. 497 U. S. 280-285,(c) It is permissible for Missouri, in its proceedings, to apply a clear and convincing evidence standard, which is an appropriate standard when the individual interests at stake are both particularly important and more substantial than mere loss of money, Santosky v. Kramer, 455 U. S. 745, 455 U. S. 756. Here, Missouri has a general interest in the protection and preservation of human life, as well as other, more particular interests, at stake. It may legitimately seek to safeguard the personal element of an individual's choice between life and death. The State is also entitled to guard against potential abuses by surrogates who may not act to protect the patient. Similarly, it is entitled to consider that a judicial proceeding regarding an incompetent's wishes may not be adversarial, with the added guarantee of accurate factfinding that the adversary process brings with it. The State may also properly decline to make judgments about the "quality" of a particular individual's life, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual. It is self-evident that these interests are more substantial, both on Page 497 U. S. 263 an individual and societal level, than those involved in a common civil dispute. The clear and convincing evidence standard also serves as a societal judgment about how the risk of error should be distributed between the litigants. Missouri may permissibly place the increased risk of an erroneous decision on those seeking to terminate life-sustaining treatment. An erroneous decision not to terminate results in a maintenance of the status quo, with at least the potential that a wrong decision will eventually be corrected or its impact mitigated by an event such as an advancement in medical science or the patient's unexpected death. However, an erroneous decision to withdraw such treatment is not susceptible of correction. Although Missouri's proof requirement may have frustrated the effectuation of Cruzan's not-fully-expressed desires, the Constitution does not require general rules to work flawlessly. Pp. 497 U. S. 280-285.2. The State Supreme Court did not commit constitutional error in concluding that the evidence adduced at trial did not amount to clear and convincing proof of Cruzan's desire to have hydration and nutrition withdrawn. The trial court had not adopted a clear and convincing evidence standard, and Cruzan's observations that she did not want to live life as a "vegetable" did not deal in terms with withdrawal of medical treatment or of hydration and nutrition. P. 497 U. S. 285.3. The Due Process Clause does not require a State to accept the "substituted judgment" of close family members in the absence of substantial proof that their views reflect the patient's. This Court's decision upholding a State's favored treatment of traditional family relationships, Michael H. v. Gerald D., 491 U. S. 110, may not be turned into a constitutional requirement that a State must recognize the primacy of these relationships in a situation like this. Nor may a decision upholding a State's right to permit family decisionmaking, Parham v. J.R., 442 U. S. 584, be turned into a constitutional requirement that the State recognize such decisionmaking. Nancy Cruzan's parents would surely be qualified to exercise such a right of "substituted judgment" were it required by the Constitution. However, for the same reasons that Missouri may require clear and convincing evidence of a patient's wishes, it may also choose to defer only to those wishes, rather than confide the decision to close family members. Pp. 497 U. S. 285-287.760 S.W.2d 408, affirmed.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. O'CONNOR, J., post, p. 497 U. S. 287, and SCALIA, J., post, p. 497 U. S. 292, filed concurring opinions. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, Page 497 U. S. 264 JJ., joined, post, p. 497 U. S. 301. STEVENS, J., filed a dissenting opinion, post, p. 497 U. S. 330. Page 497 U. S. 265

1960_233

MR. JUSTICE STEWART delivered the opinion of the Court.Once again we are called upon to review a criminal conviction for refusal to answer questions before a subcommittee of the Committee on Un-American Activities of the House of Representatives. [Footnote 1] See Quinn v. United States, 349 U. S. 155; Emspak v. United States, 349 U. S. 190; Watkins v. United States, 354 U. S. 178; Barenblatt v. United States, 360 U. S. 109; Wilkinson v. United States, 365 U. S. 399; Braden v. United States, 365 U. S. 431. The petitioner was brought to trial in the District Court for the District of Columbia upon an indictment which charged that he had violated 2 U.S.C. § 192, by refusing to answer five questions "which were pertinent to the question then under inquiry" by the subcommittee. He waived a jury, and was convicted upon four of the five counts of the indictment. The judgment was affirmed by the Court of Appeals, 108 U.S.App.D.C. 143, 280 F.2d 691, and we brought the case here because of doubt as to the validity of the conviction in the light of our previous Page 367 U. S. 458 decisions. [Footnote 2] 364 U.S. 812. A careful review of the trial record convinces us that the District Court should have ordered an acquittal.At the trial, the Government's case consisted largely of documentary evidence. That evidence showed that a subcommittee of the House Committee on Un-American Activities conducted hearings in Albany, New York, in July of 1953, and again in early April of 1954. The petitioner was not present on either occasion. He was subpoenaed to appear before the subcommittee in Albany on April 9, 1954, but, at the request of his counsel, it was agreed that he should appear instead before the subcommittee three days later in the Old House Office Building in Washington, D.C.He appeared there on the appointed day, accompanied by counsel, and, without further ado, his interrogation began. The petitioner freely answered all preliminary questions, revealing that he was then twenty-four years old and a graduate student at the University of Pennsylvania. He stated that his early education had been in the public schools of Brooklyn, New York, from where he had gone to Cornell University in 1947 for four years as an undergraduate and two additional years as a graduate student.The subcommittee's counsel then made the following statement:"Mr. Deutch, during hearings at Albany last week, the committee heard testimony regarding the existence of a Communist Party group or cell operating among undergraduates at Cornell University, among certain graduates at Cornell and in the city of Ithaca. "Page 367 U. S. 459"In connection with that testimony, the committee was informed that you were a member of one or more of those groups. If so, I would like to ask you certain matters relating to your activity there.""Were you a member of a group of the Communist Party at Cornell?"The petitioner answered, "under protest," that he had indeed been a member of the Communist Party while at Cornell. [Footnote 3] He then testified freely and without further objection as to his own activities and associations. He stated that,"from the age of 13 or 14, I had read many books on Marxism, and, at that time, was very much impressed with trying to solve certain of the injustices we have nowadays."He said that, when he got to college, "I felt if I had ideas I shouldn't be half pregnant about them, so, when I came to college, I was approached, and joined." He stated that the approach to join the Party had been made by a student.As to the general nature of his Communist Party activities at Cornell, he said,"about all that happened were bull sessions on Marxism, and some activities like giving out a leaflet or two. The people I met didn't advocate the overthrowing of the Government by force and violence, and, if they had, I wouldn't have allowed it."He testified that he had known one faculty member at Cornell who was a Communist, but that this person had quit the Party. He stated that he had once received from "a personal friend," who was not connected with the Cornell faculty, a $100 contribution to give to the Party. He Page 367 U. S. 460 stated that he had been the only graduate student at Cornell who was a Communist, and that, as the "head" (and lone member) of the "graduate group," he had attended meetings in a private house where a "maximum of 4 or 5" people were present. Many of his answers indicated a lack of awareness of the details of Communist activities at Cornell. [Footnote 4] The petitioner testified that, as of the time of the hearings, he was no longer a member of the Communist Party, but he volunteered the information that, "[t]o a great extent, it is only fair to say I am a Marxist today -- I don't want to deny that."While the petitioner's answers to the many questions put to him about his own activities and conduct were thus Page 367 U. S. 461 fully responsive, he refused to answer five questions he was asked concerning other people. He declined to give the names of the faculty member who had been a Communist, of the friend who had made the $100 contribution, of the student who had originally approached him about joining the Communist Party, and of the owners of the house where the meetings had been held. He also declined to say whether he was acquainted with one Homer Owen. For his refusal to answer these questions, he was indicted, tried, and convicted. [Footnote 5]The reason which the petitioner gave the subcommittee for his refusal to answer these questions can best be put in his own words:"Sir, I am perfectly willing to tell about my own activities, but do you feel I should trade my moral scruples by informing on someone else? . . . I can only say that, whereas I do not want to be in Page 367 U. S. 462 contempt of the committee, I do not believe I can answer questions about other people, but only about myself. . . . I happen to have been a graduate student -- the only one there, and the organization is completely defunct, and the individual you are interested in wasn't even a professor. The magnitude of this is really beyond reason."The chairman of the subcommittee ruled that it was the petitioner's duty nevertheless to answer the questions:"That decision does not rest with you, as to whether or not the scope of this inquiry -- as to whether or not certain individuals are important now or not. That is the responsibility of we Representatives to determine. That determination cannot rest with you. It may be very true that the individual to whom you have referred is no longer a member of the Communist Party. However, that is a supposition on your part -- and a supposition which the committee cannot accept. . . . I think that it is only fair to advise the witness -- again advise the witness -- that any scruples he may have due to a desire to protect friends and acquaintances is not a legal reason for declining to answer the questions which are now being put to you, and which will be put to you by counsel."In an effort to prove the pertinence of the questions which the petitioner had refused to answer, the Government offered at the trial the transcripts of the opening statements of Subcommittee Chairman Kearney at the Albany hearings in 1953 and 1954, and of Subcommittee Chairman Velde at a hearing in Chicago in 1954, as well as an additional portion of the transcript of the 1954 Albany hearing. One witness, the counsel for the Committee on Un-American Activities, testified. A review Page 367 U. S. 463 of this evidence convinces us that the Government failed to prove the charge in the indictment that the questions which the petitioner refused to answer were "pertinent to the question then under inquiry" by the subcommittee before which he appeared.The Chairman's opening statement at the Albany hearing in 1953 consisted largely of a paraphrase of the Committee's authorizing resolution and a general summary of the Committee's past activities. [Footnote 6] The only statement of a specific purpose was as follows:"The committee, in its course of investigation, came into possession of reliable information indicating Page 367 U. S. 464 Communist Party activities within the Albany area. The committee decided that this information was of such a character as to merit an investigation to determine its nature, extent, character, and objects. "Page 367 U. S. 465At the opening of the Albany hearings in 1954, the Chairman stated that the subcommittee would "resume this morning the investigation of Communist Party activities within the capital area." He made clear that the hearings were "a continuation of the open hearings which were conducted in Albany" in 1953. He pointed out that testimony at the 1953 hearings had "related to the efforts of the Communist Party to infiltrate industry and other segments of society in the capital area." "This committee," he said, ". . . is investigating communism within the field of labor where it has substantial evidence that it exists."The opening statement of the Chairman of the subcommittee which held hearings in Chicago in 1954 is the same statement that was before this Court in Watkins v. United States, 354 U. S. 178, 354 U. S. 210. As was pointed out in the Watkins opinion, Mr. Velde "did no more than paraphrase the authorizing resolution and give a very general sketch of the past efforts of the Committee." [Footnote 7] Moreover, the statement indicated that that subcommittee hearing was directed primarily towards investigation of activities in the Chicago area:"We are here in Chicago, Ill., realizing that this is the center of the great midwestern area of the United States. It cannot be said that subversive infiltration has had a greater, nor a lesser, success in infiltrating this important area. The hearings today are the culmination of an investigation that has been conducted by the committee's competent staff, and is a part of the committee's intention for holding hearings in various parts of the country."The transcripts of part of the testimony of two witnesses at the 1954 Albany hearings, John Marqusee and Emmanuel Richardson, were also introduced at the petitioner's Page 367 U. S. 466 trial. These transcripts showed that Marqusee's testimony had related primarily to Communist infiltration of a labor union in Schenectady for which he had worked during a summer vacation in 1948. [Footnote 8] At that time, he had been a student in the New York State School of Industrial and Labor Relations, which, he had testified, was a part of Cornell University. He had told the subcommittee that he had never had any contact with the Communist Party before taking the labor union job. The transcripts showed that he had explained that he had taken the job in accordance with the school's requirement"that every student should put forth his efforts in securing a job during the summer, during the intervening summers of his 4-year program, 1 summer with a labor union, 1 with a management group, if possible, and 1 summer with a neutral agency, such as a mediation agency or arbitration service."There was no mention of the Cornell Graduate School, nor of the petitioner, in the transcript of Marqusee's testimony.The transcript of Richardson's testimony showed that he had testified that, as a student at the Cornell Law School in 1950, he had joined the Communist Party at the request of the Federal Bureau of Investigation. He had named several people he had known as Communists on the Cornell campus, including the petitioner and Homer Owen. He had stated that the petitioner had known a member of the Cornell faculty who was a Communist Party member, and that he had once received through the petitioner a contribution to the Party from someone else of "one hundred and some dollars." The transcript showed that Richardson had also testified at length concerning Communist infiltration into a labor union in a plant in Syracuse where he had worked during the summers of 1951 and 1952. Page 367 U. S. 467After these transcripts had been introduced at the petitioner's trial, the Government called its only witness, Frank S. Tavenner, Jr., who had been the "interrogating attorney" at the Albany hearings and at the petitioner's hearing before the subcommittee in Washington. [Footnote 9] Mr. Tavenner emphasized that the hearing in Washington was a continuation of the Albany hearings, which he characterized as "a general investigation of Communist Party activities in what was referred to as the Capital Area.'" Under interrogation of government counsel, the witness expressly disclaimed that the purpose of the Washington hearing had been to investigate Communist activities in educational institutions. [Footnote 10] He was asked what "connection was there between [the subject of the petitioner's testimony] and the investigations entitled `Albany, New York?'" This question was never answered.On this record, the District Court found the subject under inquiry to be "the infiltration of Communism into educational and labor fields." 147 F. Supp. at 91. The Court of Appeals never stated what it thought the subject under inquiry by the subcommittee was.As our cases make clear, two quite different issues regarding pertinency may be involved in a prosecution under 2 U.S.C. § 192. One issue reflects the requirement of the Due Process Clause of the Fifth Amendment that the pertinency of the interrogation to the topic under the Page 367 U. S. 468 congressional committee's inquiry must be brought home to the witness at the time the questions are put to him."Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto."Watkins v. United States, 354 U.S. at 354 U. S. 214-215. See Barenblatt v. United States, 360 U.S. at 360 U. S. 123-124. The other and different pertinency issue stems from the prosecution's duty at the trial to prove that the questions propounded by the congressional committee were, in fact, "pertinent to the question under inquiry" by the committee."Undeniably, a conviction for contempt under 2 U.S.C. § 192 cannot stand unless the questions asked are pertinent to the subject matter of the investigation."Barenblatt, supra, at 360 U. S. 123."[T]he statute defines the crime as refusal to answer 'any question pertinent to the question under inquiry.' Part of the standard of criminality, therefore, is the pertinency of the questions propounded to the witness."Watkins, supra, at 354 U. S. 208. See Wilkinson v. United States, 365 U.S. at 365 U. S. 407-409, 365 U. S. 413; Braden v. United States, 365 U.S. at 365 U. S. 433, 365 U. S. 435-436; Sacher v. United States, 356 U. S. 576, 356 U. S. 577; Sinclair v. United States, 279 U. S. 263, 279 U. S. 296-297. These two basically different issues must not be blurred by treating them as a single question of "pertinency."With regard to the first issue, it is evident that the petitioner was not made aware at the time he was questioned of the question then under inquiry, nor of how the questions which were asked related to such a subject. The chairman made no opening statement, and the petitioner heard no other witnesses testify. The resolution creating the subcommittee revealed nothing. It was Page 367 U. S. 469 merely a general resolution authorizing the creation of a subcommittee to act for the Committee. Committee counsel simply advised the petitioner that the committee had previously heard evidence regarding Communist activity at Cornell, and that he proposed to ask the petitioner "certain matters relating to your activity there." As to his own activity there, the petitioner freely testified. When the petitioner declined to give the names of other people, no clear explanation of the topic under inquiry was forthcoming.It is also evident, however, that the thoughts which the petitioner voiced in refusing to answer the questions about other people can hardly be considered as the equivalent of an objection upon the grounds of pertinency. Although he did indicate doubt as to the importance of the questions, the petitioner's main concern was clearly his own conscientious unwillingness to act as an informer. It can hardly be considered, therefore, that the objections which the petitioner made at the time were"adequate, within the meaning of what was said in Watkins, supra, at 354 U. S. 214-215, to trigger what would have been the Subcommittee's reciprocal obligation had it been faced with a pertinency objection."Barenblatt, supra, at 360 U. S. 124.We need not pursue the matter, however, because, in any event, it is clear that the Government at the trial failed to carry its burden of proving the pertinence of the questions. See Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447, 452. The first step in proving that component of the offense was to show the subject of the subcommittee's inquiry. Wilkinson v. United States, 365 U.S. at 365 U. S. 407. As related above, the Government offered documentary evidence of statements made by the chairman of the subcommittees at two hearings in Albany which tended to show that those subcommittees were investigating Communist infiltration in the Albany or Page 367 U. S. 470 "capital" area, particularly in the field of labor. [Footnote 11] The Government presented one witness who testified that the petitioner's hearing was a continuation of the Albany hearings, and that the subject of those hearings was Communist infiltration in the Albany area. He disavowed any implication that the topic under inquiry was Communism either at Cornell or in educational institutions generally.Yet the questions which the petitioner was convicted of refusing to answer obviously had nothing to do with the Albany area, or with Communist infiltration into labor unions. It can hardly be seriously contended that Cornell University is in the Albany area. Indeed, we may take judicial notice of the fact that Ithaca is more than one hundred and sixty-five miles from Albany, and in an entirely different economic and geographic area of New York. The petitioner was asked nothing about Albany or the Albany area. So far as the record shows, he knew nothing about that subject. He was asked nothing about labor or labor unions. So far as the record shows, he knew nothing about them. He was asked nothing about any possible connection between Cornell or its graduate school and Communist infiltration in Albany. Yet the petitioner was basically a cooperative witness, and there is nothing in the record to indicate that, except for giving the names of others, he would not have freely answered any inquiry the subcommittee wished to pursue with respect to these subjects. It is true that the transcript of the testimony of two witnesses at the Albany hearings established that, in addition to testifying about Communist infiltration into labor unions in the Albany area, they had been willingly led into some testimony about Communist activities by the petitioner and others at Cornell. Page 367 U. S. 471 But that excursion can hardly justify a disregard of the Government's careful proof at the petitioner's trial of what the subject under inquiry actually was. The pertinence of the interrogation of those two witnesses is not before us. The pertinence of the petitioner's interrogation is.In enacting 2 U.S.C. § 192, the Congress invoked the aid of the federal judicial system to protect itself from contumacious conduct. Watkins, supra, at 354 U. S. 207."In fulfillment of their obligation under this statute, the courts must accord to the defendants every right which is guaranteed to defendants in all other criminal cases."Id. at 354 U. S. 208."One of the rightful boasts of Western civilization is that the [prosecution] has the burden of establishing guilt solely on the basis of evidence produced in court, and under circumstances assuring an accused all the safeguards of a fair procedure."Irvin v. Dowd, 366 U. S. 717, 366 U. S. 729 (concurring opinion). Among these is the presumption of the defendant's innocence. Sinclair v. United States, 279 U.S. at 279 U. S. 296-297; Flaxer v. United States, 358 U.S. at 358 U. S. 151. It was incumbent upon the prosecution in this case to prove that the petitioner had committed the offense for which he was indicted. One element of that offense was the pertinence to the subject matter under inquiry of the questions the petitioner refused to answer. [Footnote 12] We hold, as a matter of law, that there was a failure of such proof in this case. Sacher v. United States, 356 U. S. 576; see Sinclair v. United States, 279 U.S. at 279 U. S. 298-299; Braden v. United States, 365 U.S. at 365 U. S. 436-437.We do not decide today any question respecting the power or legislative purpose of this subcommittee of the House Un-American Activities Committee. Nor do we reach the large issues stirred by the petitioner's First Page 367 U. S. 472 Amendment claims. Our decision is made within the conventional framework of the federal criminal law, and in accord with its traditional concepts. In a word, we hold only that the Government failed to prove its case. [Footnote 13]Reversed

U.S. Supreme CourtDeutch v. United States, 367 U.S. 456 (1961)Deutch v. United StatesNo. 233Argued March 22-23, 1961Decided June 12, 1961367 U.S. 456SyllabusSummoned to testify before a Subcommittee of the House of Representatives Committee on Un-American Activities, which was investigating Communist Party activities in the Albany, N.Y., area, petitioner, who had not attended the hearings in Albany and was questioned in Washington, D.C., freely answered questions about his own Communist activities at Cornell University and Ithaca, N.Y., but he refused to name persons with whom he had been associated in such activities there. 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 a congressional committee to refuse to answer any question pertinent to the question under inquiry. At his trial, in an effort to prove the pertinency of the questions he refused to answer, the Government offered documentary evidence of statements made by the Chairman of the Subcommittee at the hearings in Albany, which tended to show that the subject of those hearings was Communist infiltration in the Albany area, particularly in the field of labor, and one witness testified that petitioner's hearing was a continuation of the Albany hearings, that the subject of those hearings was Communist infiltration in the Albany area, and that the topic under inquiry was not Communism either at Cornell or in educational institutions generally. It also introduced transcripts of the testimony of two witnesses at the Albany hearings who, in addition to testifying about Communist infiltration into labor unions in the Albany area, had been led into some testimony about Communist activities by petitioner and others at Cornell.Held: on the record in this case, the Government failed to prove an essential element of the offense, that the questions which petitioner refused to answer were pertinent to the subject under inquiry, and his conviction must be set aside. Pp. 367 U. S. 457-472.108 U.S.App.D.C. 143, 280 F.2d 691, reversed. Page 367 U. S. 457

1977_76-1835

MR. JUSTICE BRENNAN delivered the opinion of the Court.Petitioner, an orthodontist by profession, on January 31, 1969, purchased the stock and assumed the management of three corporations engaged in the food vending business. The corporations were indebted at the time of the purchase for approximately $250,000 of taxes, including federal wage and Federal Insurance Contribution Act (FICA) taxes withheld from employees' wages prior to January 31. The sums withheld had not been paid over when due, however, but had been dissipated by the previous management before petitioner acquired the businesses. After petitioner assumed control, the corporations acquired funds sufficient to pay the taxes, but petitioner used the funds to pay employees' wages, rent, suppliers, and other creditors, and to meet other day-to-day expenses incurred in operating the businesses. The question to be decided is whether, in these circumstances, petitioner is personally liable under § 6672 of the Internal Revenue Code of 1954, 26 U.S.C. § 6672 -- which imposes personal liability for taxes on"[a]ny person required to collect, truthfully account Page 436 U. S. 241 for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof . . ."-- for the corporations' unpaid taxes withheld from wages prior to his assumption of control. The Court of Appeals for the Sixth Circuit held that petitioner was personally liable under § 6672 for the unpaid taxes. 552 F.2d 159 (1977). We granted certiorari. [Footnote 1] 434 U.S. 817 (1977). We reverse.IThe case arose from the filing by the Internal Revenue Service (IRS) of a claim for the taxes in a proceeding instituted by petitioner in July, 1969, for a real property arrangement under Chapter XII of the Bankruptcy Act. The facts determined after hearing by the bankruptcy judge, 74-2 USTC 9719 (ND Ohio 1974), are not challenged. Petitioner purchased and assumed managerial control of the Tas-Tee Catering, Tas-Tee Vending, and Charles Corporations on January 31, 1969. When he bought the stock, petitioner understood, and the purchase agreement reflected, that the corporations had an outstanding obligation for taxes in the amount of $250,000 due for payment on January 31, including withheld employee wage and FICA taxes (hereinafter trust-fund taxes). During the purchase negotiations, the sellers represented to petitioner that balances in the various corporate checking accounts were sufficient to pay these taxes as well as bills due other creditors. Relying on the representation, petitioner, on Saturday, February 1, sent four checks to the IRS in payment of the taxes. Page 436 U. S. 242 On Monday, February 3, petitioner discovered that the accounts were overdrawn, and stopped payment on the checks. Thus, at the time that petitioner assumed control, the corporations had no liquid assets, and whatever trust fund taxes had been collected prior to petitioner's assumption of control had been dissipated.Petitioner immediately advised the IRS that the corporations had no funds with which to pay the taxes, and solicited guidance concerning how the corporations should proceed. App. 36. There was evidence that IRS officials advised petitioner that they had no objection to his continuing operations so long as current tax obligations were met, and that petitioner agreed to do so and to endeavor to pay the arrearages as soon as possible. Tr. 37-38. The IRS never represented that it would hold petitioner harmless under § 6672 for the back taxes, however.To continue operations, petitioner deposited personal funds in the corporate account, and, to obtain inventory, agreed with certain suppliers to pay cash upon delivery. During petitioner's tenure, from January 31 to July 15, 1969, the corporations' gross receipts approximated $130,000 per week for the first months, but declined thereafter. The corporations"established a system of segregating funds for payment of withheld taxes and did, in fact, pay withheld taxes during the period February 1, 1969, to July 15, 1969."App. 30. The bankruptcy judge found, and the IRS concedes, that the $249,212 in taxes paid during this period was approximately sufficient to defray current tax obligations. No taxes owing for periods prior to February 1 were paid, however, and, in July, 1969, the corporations terminated operations and filed for bankruptcy.IISeveral provisions of the Internal Revenue Code require third persons to collect taxes from the taxpayer. Among the more important are 26 U.S.C. §§ 3102(a) and 3402(a) (1970 Page 436 U. S. 243 ed. and Supp V) which, respectively, require deduction from wages paid to employees of the employees' share of FICA taxes, and the withholding tax on wages applicable to individual income taxes. The withheld sums are commonly referred to as "trust fund taxes," reflecting the Code's provision that such withholdings or collections are deemed to be a "special fund in trust for the United States." 26 U.S.C. § 7501(a). There is no general requirement that the withheld sums be segregated from the employer's general funds, however, or that they be deposited in a separate bank account until required to be paid to the Treasury. Because the Code requires the employer to collect taxes as wages are paid, § 3102(a), while requiring payment of such taxes only quarterly, [Footnote 2] the funds accumulated during the quarter can be a tempting source of ready cash to a failing corporation beleaguered by creditors. [Footnote 3] Once net wages are paid to the employee, the taxes withheld are credited to the employee regardless of whether they are paid by the employer, so that the IRS has recourse only against the employer for their payment. [Footnote 4]An employer who fails to pay taxes withheld from its employees' wages is, of course, liable for the taxes which should have been paid, § 3102(b) and 3403. The IRS has several means at its disposal to effect payment of the taxes so withheld. Page 436 U. S. 244 First, once it has been determined that an employer has been inexcusably delinquent, the IRS, upon giving hand-delivered notice, may require the employer, thereafter and until further notice, to deposit withheld taxes in a special bank trust account within two banking days after collection, to be retained there until required to be paid to the Treasury at the quarter's end. § 7512. Second, with respect to trust funds past due prior to any such notification, the amount collected or withheld"shall be held to be a special fund in trust for the United States [and] [t]he amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose."26 U.S.C. § 7501. Thus, there is made applicable to employment taxes withheld but not paid the full range of collection methods available for the collection of taxes generally. After assessment, notice, and demand, [Footnote 5] the IRS may, therefore, create a lien upon the property of the employer, § 6321, and levy, distrain, and sell the employer's property in satisfaction. §§ 6331 to 6344 (1970 ed. and Supp. V).Third, penalties may be assessed against the delinquent employer. Section 6656 of the Code imposes a penalty of 5% of the underpayment of any tax required to be deposited, and 26 U.S.C. §§ 7202 and 7215 provide criminal penalties respectively for willful failure to "collect or truthfully account for and pay over" trust fund taxes, and for failure to comply with the requirements of § 7512, discussed supra, regarding special accounting requirements upon notice by the Secretary.Finally, as in this case, the officers or employees of the employer responsible for effectuating the collection and payment Page 436 U. S. 245 of trust fund taxes who willfully fail to do so are made personally liable to a "penalty" equal to the amount of the delinquent taxes. Section 6672 provides, inter alia:"Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. . . ."Section 6671(b) defines "person," for purposes of § 6672, as including"an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs."Also, § 7202 of the Code, [Footnote 6] which tracks the wording of § 6672, makes a violation punishable as a felony subject to a fine of $10,000, and imprisonment for 5 years. Thus, an employer-official or other employee responsible for collecting and paying taxes who willfully fails to do so is subject to both a civil penalty equivalent to 100% of the taxes not collected or paid, and to a felony conviction. Only the application to petitioner of the civil penalty provision, § 6672, is at issue in this case.IIIWhen the same individual or individuals who caused the delinquency in any tax quarter are also the "responsible persons" [Footnote 7] Page 436 U. S. 246 at the time the Government's efforts to collect from the employer have failed, and it seeks recourse against the "responsible employees," see IRS Policy Statement P-5-60, IRS Manual, MT 1218-56 (Feb. 25, 1976), there is no question that § 6672 is applicable to them. It is the situation that arises when there has been a change of control of the employer enterprise, here corporations, prior to the expiration of a tax quarter, or at a time when a tax delinquency for past quarters already exists that creates the question for our decision. In this case, petitioner assumed control at a time when a delinquency existed for unpaid trust fund taxes, while the specific funds withheld but not paid had been dissipated by predecessor officers, and when the corporations had no liquid assets with which to pay the overdue taxes.APetitioner concedes that he was subject to personal liability under § 6672 as a person responsible for the collection, accounting, and payment of employment taxes required to be withheld between January 31, 1969, when he assumed control of the corporations, and July 15, 1969, when he resigned. Tr. of Oral Arg. 8. His contention is that he was not, however, a responsible person within § 6672 with respect to taxes withheld prior to his assumption of control, and that § 6672 consequently imposed no duty upon him to pay the taxes collected by his predecessors. Petitioner argues that this construction of § 6672 follows necessarily from the statute's limitation of personal liability to "[a]ny person required to collect, truthfully account for and pay over any tax imposed by this title," who willfully fails to discharge those responsibilities (emphasis added). He argues that, since the obligations are phrased in Page 436 U. S. 247 the conjunctive, a person can be subject to the section only if all three duties -- (1) to collect, (2) truthfully account for, and (3) pay over -- were applicable to him with respect to the tax dollars in question. See McCullough v. United States, 462 F.2d 588 (CA5 1972). On the other hand, as the Government argues, the language could be construed as describing, in terms of their general responsibilities, the persons potentially liable under the statute, without regard to whether those persons were in a position to perform all of the duties with respect to the specific tax dollars in question. Although neither construction is inconsistent with the language of the statute, we reject petitioner's as inconsistent with its purpose.Sections 6672 and 7202 were designed to assure compliance by the employer with its obligation to withhold and pay the sums withheld, by subjecting the employer's officials responsible for the employer's decisions regarding withholding and payment to civil and criminal penalties for the employer's delinquency. If § 6672 were given petitioner's construction, the penalties easily could be evaded by changes in officials' responsibilities prior to the expiration of any quarter. Because the duty to pay over the tax arises only at the quarter's end, a "responsible person" who willfully failed to collect taxes would escape personal liability for that failure simply by resigning his position, and transferring to another the decisionmaking responsibility prior to the quarter's end. [Footnote 8] Obversely, Page 436 U. S. 248 a "responsible person" assuming control prior to the quarter's end could, without incurring personal liability under § 6672, willfully dissipate the trust funds collected and segregated by his predecessor. [Footnote 9]That this result, obviously at odds with the statute's purpose to assure payment of withheld taxes, was not intended is buttressed by the history of the provision. The predecessor of § 6672, § 1308(c), Revenue Act of 1918, 40 Stat. 1143, provided, inter alia:"Any person who willfully refuses to pay, collect, or truly account for and pay over [taxes enumerated in § 1308(a)] shall . . . be liable to a penalty of the amount of the tax evaded or not paid, collected, or accounted for and paid over. . . . [Footnote 10]"The statute remained unchanged in this respect until 1954, when the successor section to § 1308(c) [Footnote 11] Page 436 U. S. 249 was revised to its present form. Both before and after the 1954 revision, the "person" potentially liable under the statute was defined in a separate provision, § 1308(d), succeeded by present § 6671(b), as including"an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs."When, in 1954, Congress added the phrase modifying "person" -- "Any person required to collect, truthfully account for, and pay over any tax imposed by this title" -- it was not seeking further to describe the class of persons defined in § 6671(b) upon whom fell the responsibility for collecting taxes, but was attempting to clarify the type of tax to which the penalty section was applicable. Since, under the 1954 amendment, the penalty would otherwise be applicable to "any tax imposed by this title," the phrase modifying "person" was necessary to insure that the penalty provided by that section would be read as applicable only to failure to pay taxes which require collection, that is, third-party taxes, and not failure to pay "any tax imposed by this title," which, of course, would include direct taxes such as employer FICA and income taxes. As both the House and Senate Committees expressed it,"the application of this penalty is limited only to the collected or withheld taxes which are imposed on some person other than the person who is required to collect, account for and pay over, the tax. [Footnote 12]"Thus, by adding the Page 436 U. S. 250 phrase modifying "person," Congress was attempting to clarify the type of tax to which the penalty section was applicable, perhaps inartfully, by reference to the duty of the person required to collect them. This view is supported by the fact that the Commissioner of Internal Revenue issued a regulation shortly after the amendment, limiting the application of the § 6672 penalty to third-party taxes. 22 Fed Reg. 9148 (1957), now codified as Treas.Reg. § 301.6672-1, 26 CFR § 301.672-1 (1977).We conclude therefore that the phrase "[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title" was meant to limit § 6672 to persons responsible for collection of third-party taxes, and not to limit it to those persons in a position to perform all three of the enumerated duties with respect to the tax dollars in question. [Footnote 13]We turn then to the Government's contention that petitioner was subject to personal liability under § 6672 when, during the period in which he was a responsible person, the corporations generated gross receipts sufficient to pay the back taxes, but used the funds for other purposes. Page 436 U. S. 251BAlthough, at the time petitioner became a responsible person, the trust fund taxes had been dissipated and the corporations had no liquid assets, the Government contends that § 6672 imposed civil liability upon petitioner because sums received from sales in carrying on the businesses after January 31, 1969, were impressed with a trust in favor of the United States for the satisfaction of overdue employment taxes, and petitioner's willful use of those funds to pay creditors other than the United States, violated the obligation to "pay over" imposed by § 6672. The Government does not argue that the statute requires a "responsible person" to liquidate corporate assets to pay the back taxes upon assuming control, however; it argues only that a trust was impressed on all cash received by the corporations. Tr. of Oral Arg. 26, 28-29, 30-31, 32. We think that that construction of § 6672 would not advance the statute's purpose, and, moreover, is inconsistent with the context and legislative history of the provision and its relation to the Code's priority rule applicable to collection of back taxes.(1)The Government argues that its construction of the statute is necessary to effectuate the congressional purpose to assure collection and payment of taxes. Although that construction might in this case garner tax dollars otherwise uncollectible, its long-term effect arguably would more likely frustrate than aid the IRS's collection efforts.At the time petitioner assumed control, the corporations owed back taxes, were overdue on their supplier accounts, and had no cash. To the extent that the corporations had assets unencumbered by liens superior to a tax lien, the IRS could satisfy its claim by levy and sale. But, as will often be the case, the corporations here apparently did not have such assets. The Page 436 U. S. 252 Government admits that, in such circumstances, the IRS's practice is to be "flexible," Tr. of Oral Arg. 27, 28, 32, 48, and does not insist that the corporation discontinue operations, thereby substituting for certain loss at least the potential of recovering back taxes if the corporation makes a financial recovery. It argues, nevertheless, that the "responsible person" renders himself personally liable to the § 6672 penalty by using gross receipts to purchase inventory or pay wages, or even by using personal funds for those purposes, [Footnote 14] so long as any third-party employment tax bill remains unpaid. [Footnote 15]Thus, although it is in the IRS's interest to encourage the responsible person to continue operation with the hope of receiving payment of the back taxes, if the attempt fails and the taxes remain unpaid, the IRS insists that the § 6672 personal liability penalty attached upon payment of the first dollar to a supplier. The practical effect of that construction of the statute would be that a well counseled person contemplating Page 436 U. S. 253 assuming control of a financially beleaguered corporation owing back employment taxes would recognize that he could do so without incurring personal civil and criminal penalties only if there were available sufficient borrowed or personal funds fully to pay all back employment taxes before doing any business. If that course is unattractive or unavailable to the corporation, the Government will be remitted to its claim in bankruptcy. When an immediate filing for bankruptcy means a total loss, the Government understandably, as it did here, does not discourage the corporation from continuing to operate so long as current taxes are paid. As soon as the corporation embarks upon that course, however, the "responsible person" is potentially liable to heavy civil and criminal penalties not for doing anything which compromised the Government's collection efforts, but for doing what the Government regards as maximizing its chances for recovery. As construed by the Government, § 6672 would merely discourage changes of ownership and management of financially troubled corporations and the infusion of equity or debt funding which might accompany it without encouraging employer compliance with tax obligations or facilitating collection of back taxes. Thus, recovery of employer taxes would likely be limited to the situation in which the prospective purchaser or management official is ignorant of § 6672. [Footnote 16](2)As noted in the previous section, § 6672 as construed by the Government would, in effect, make the responsible person Page 436 U. S. 254 assuming control of a business a guarantor for payment of the delinquent taxes simply by undertaking to continue operation of the business. That construction is precluded by the history and context of § 6672 and cognate provisions of the Code.Section 6672 cannot be read as imposing upon the responsible person an absolute duty to "pay over" amounts which should have been collected and withheld. The fact that the provision imposes a "penalty" and is violated only by a "willful failure" is itself strong evidence that it was not intended to impose liability without personal fault. Congress, moreover, has not made corporate officers personally liable for the corporation's tax obligations generally, and § 6672 therefore should be construed in a way which respects that policy choice. The Government's concession -- that § 6672 does not impose a duty on the responsible officer to use personal funds or even to liquidate corporate assets to satisfy the tax obligations -- recognizes that the "pay over" requirement does not impose an absolute duty on the responsible person to pay back taxes.Recognizing that the statute cannot be construed to impose liability without fault, the Government characterizes petitioner's use of gross receipts for payment of operating expenses as a breach of trust, arguing that a trust was impressed on all after-acquired cash. Nothing whatever in § 6672 or its legislative history suggests that the effect of the requirement to "pay over" was to impress a trust on the corporation's after-acquired cash, however. Moreover, the history of a related section, 26 U.S.C. § 701, [Footnote 17] makes clear that it was not. Page 436 U. S. 255 Section 7501 of the Code provides, inter alia, that the"amount of tax . . . collected or withheld shall be held to be a special fund in trust for the United States [which] shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose."This section was enacted in 1934. Act of May 10, 1934, ch. 277, § 607, 48 Stat. 768, 26 U.S.C. § 3661 (1952 ed.). The provision was added to H.R. 7835, 73d Cong., 2d Sess., by the Senate Finance Committee, which explained:"Under existing law, the liability of the person collecting and withholding the taxes to pay over the amount is merely a debt, and he cannot be treated as a trustee or proceeded against by distraint. Section [607] of the bill as reported impresses the amount of taxes withheld or collected with a trust and makes applicable for the enforcement of the Government's claim the administrative provisions for assessment and collection of taxes."S.Rep. No. 558, 73d Cong., 2d Sess., 53 (1934). Since the very reason for adding § 7501 was, as the Senate Report states, that "the liability of the person collecting and withholding the taxes . . . is merely a debt" (emphasis added), § 6672, whose predecessor section was enacted in 1919 while the debt concept prevailed, hardly could have been intended to impose a trust on after-acquired cash.We further reject the argument that § 7501, whose trust concept may be viewed as having modified the duty imposed under § 6672, [Footnote 18] can be construed as establishing a fiduciary Page 436 U. S. 256 obligation to pay over after-acquired cash unrelated to the withholding taxes. The language of § 7501 limits the trust to "the amount of the taxes withheld or collected." (Emphasis added.) Comparing that language with 6672, which imposes liability for a willful failure to collect as well as failure to pay over, makes clear that under § 7501 there must be a nexus between the funds collected and the trust created. That construction is consistent with the accepted principle of trust law requiring tracing of misappropriated trust funds into the trustee's estate in order for an impressed trust to arise. See D. Dobbs, Handbook on the Law of Remedies 421 125 (1973). Finally, for the reasons discussed in the next section, a construction of § 7501 or § 6672 as imposing a trust on all after-acquired corporate funds without regard to the interests of others in those funds would conflict with the priority rules applicable to the collection of back taxes.(3)We developed in 436 U. S. supra, that the Code affords the IRS several means to collect back taxes, including levy, distraint, and sale. But the IRS is not given the power to levy on property in the hands of the taxpayer beyond the extent of the taxpayer's interest in the property, [Footnote 19] and the Code Page 436 U. S. 257 specifically subordinates tax liens to the interests of certain others in the property, generally including those with a perfected security interest in the property. [Footnote 20] For example, the Code and established decisional principles subordinate the tax lien to perfected security interests arising before the filing of the tax lien, [Footnote 21] to certain perfected security interests in certain collateral, including inventory, arising after the tax lien filing when pursuant to a security agreement entered into before the filing, [Footnote 22] and to collateral which is the subject of a purchase Page 436 U. S. 258 money mortgage regardless of whether the agreement was entered into before or after filing of the tax lien. [Footnote 23] As a consequence, secured parties often will have interests in certain proceeds superior to the tax lien, and it is unlikely, moreover, that corporations in the position of those involved here could continue in operation without making some payments to secured Page 436 U. S. 259 creditors under the terms of security agreements. Those payments may well take the form of cash or accounts receivable, which like other property may be subject to security interest, when, for example, the security agreement covers the proceeds of inventory the purchase of which is financed by the secured party, or the security agreement requires the debtor to make payments under a purchase money mortgage by assigning accounts receivable which are the proceeds of inventory financed by the mortgage. [Footnote 24] Thus, although the IRS is powerless to attach assets in which a secured party has a superior interest, it would impose a penalty under § 6672 if the responsible person fails to divert the secured party's proceeds to the Treasury without regard to whether the secured party's interests are superior to those of the Government. Surely Congress did not intend § 6672 to hammer the responsible person with the threat of heavy civil and criminal penalties to pay over proceeds in which the Code does not assert a priority interest.IVWe hold that a "responsible person" under § 6672 may violate the "pay over" requirement of that statute by willfully failing to pay over trust funds collected prior to his accession to control when, at the time he assumed control, the corporation has funds impressed with a trust under § 7501, but that § 7501 does not impress a trust on after-acquired funds, and that the responsible person consequently does not violate § 6672 by willfully using employer funds for purposes other than satisfaction of the trust fund tax claims of the United States when, at the time he assumed control, there were no Page 436 U. S. 260 funds with which to satisfy the tax obligation and the funds thereafter generated are not directly traceable to collected taxes referred to by that statute. [Footnote 25] That portion of the judgment of the Court of Appeals on the Government's cross-appeal holding petitioner liable under § 6672 for wage withholding and FICA taxes required to be collected from employees' wages prior to January 31, 1969, isReversed

U.S. Supreme CourtSlodov v. United States, 436 U.S. 238 (1978)Slodov v. United StatesNo. 76-1835Argued February 22, 1978Decided May 22, 1978436 U.S. 238SyllabusPetitioner assumed control of three corporations at a time when a delinquency existed for unpaid federal taxes withheld from employees' wages, while the specific funds withheld but not paid had been dissipated by predecessor officers and when the corporations had no liquid assets with which to pay the overdue taxes. During the six-month period of petitioner's control, the corporations acquired funds sufficient to pay the taxes, but petitioner used the funds to pay employees' wages, rent, suppliers and other creditors, and to meet current business expenses. On petitioner's withdrawal from the corporations' business, he instituted a bankruptcy proceeding, in which the Internal Revenue Service filed a claim, including the delinquent back taxes, under § 6672 of the Internal Revenue Code of 1954, which imposes personal liability for taxes on"[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof. . . ."The Court of Appeals held that petitioner was personally liable for the unpaid taxes under § 6672. While petitioner concedes liability for the collection, accounting, and payment of taxes required to be withheld during the period of his control, he disclaims responsibility with respect to taxes withheld prior thereto, arguing that its conjunctive phrasing made § 6672 inapplicable to him, since he was clearly under no duty to collect and account for taxes incurred before that period. The Government maintains that the statutory language could be construed as describing in terms of their general responsibilities the persons potentially liable under the statute without regard to the fulfillment of all the duties with respect to specific tax dollars, and that § 6672 imposed liability on petitioner as a "responsible person" because sums received during the period of his control were impressed with a trust in favor of the Government for the satisfaction of the overdue taxes and petitioner's willful use of such sums to pay other creditors violated the statute's "pay over" obligation. Though relying primarily on § 6672 for its trust theory of liability, the Government suggests as also applicable § 7501, which Page 436 U. S. 239 provides that,"[w]henever a person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of the tax . . . shall be held to be a special fund in trust for the United States [which] shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose."Held:1. The phrase "[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this title" was meant to limit § 6672 to persons responsible for paying over taxes that require collection (third-party taxes), and not to limit it to persons in a position to perform all three functions with respect to the specific taxes as to which the employer is delinquent. Petitioner's construction could lead to ready evasion of responsibility under § 6672, and is thus at odds with the statute's purpose of assuring payment by third parties of withheld taxes. Pp. 436 U. S. 246-250.2. Neither § 6672 nor § 7501 impresses a trust on the after-acquired funds of an employer for payment of overdue withholding taxes absent tracing of those funds to taxes collected, and petitioner therefore was not liable under § 6672 for using those funds for purposes other than payment of the overdue withholding taxes. Pp. 436 U. S. 253-259.(a) Section 6672 was not intended to impose an absolute liability without personal fault for failure to "pay over" amounts that should have been collected and paid over so that petitioner could not be liable unless he failed to pay funds held in trust for the United States. Pp. 436 U. S. 253-254.(b) Nothing in the language or legislative history of § 6672 suggests that the effect of the "pay over" requirement was to impress a trust on the corporations' after-acquired cash, and the history of § 7501 makes clear that it was not. Since the very reason for adding § 7501 to the Code was that, under existing law, the liability of the person collecting and withholding the taxes was merely a debt, § 6672, whose predecessor was enacted while the debt concept of liability prevailed, hardly could have been intended to impose a trust on after-acquired cash. Although the trust concept of § 7501 may inform the scope of the duty imposed by § 6672, the language of § 7501 makes clear that there must be a nexus between the funds collected and the trust created. Pp. 436 U. S. 254-256.(c) A construction of §§ 7501 and 6672 as imposing a trust on all after-acquired property without regard to the interests of others in those funds would conflict with the priority rules applicable to the collection Page 436 U. S. 240 of back taxes, which give secured parties interests in certain proceeds superior to tax liens. Pp. 436 U. S. 256-259.552 F.2d 159, reversed.BRENNAN, J., delivered the opinion of the Court, in which STEWART, MARSHALL, POWELL, REHNQUIST, and STEVENS, JJ., joined. REHNQUIST, J., filed a concurring opinion, post, p. 436 U. S. 260. WHITE, J., filed an opinion dissenting in part, in which BURGER, C.J., and BLACKMUN, J., joined, post, p. 436 U. S. 261.

1964_292

MR. JUSTICE CLARK delivered the opinion of the Court.The Federal Trade Commission has found that an agreement between the Atlantic Refining Company (Atlantic) and the Goodyear Tire & Rubber Company (Goodyear), under which the former "sponsors" the sale of the tires, batteries and accessory TBA products of the latter to its wholesale outlets and its retail service station dealers, is an unfair method of competition in violation of Page 381 U. S. 360 § 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. § 45 (1964 ed.). [Footnote 1] Under the plan, Atlantic sponsors the sale of Goodyear products to its wholesale and retail outlets on an overall commission basis. Goodyear is responsible for its sales, and sells at its own price to Atlantic wholesalers and dealers for resale; it bears all of the cost of distribution through its warehouses, stores and other supply points, and carries on a joint sales promotion program with Atlantic. The latter, Page 381 U. S. 361 however, is primarily responsible for promoting the sale of Goodyear products to its dealers and assisting them in their resale; for this, it receives a commission on all sales made to its wholesalers and dealers. The hearing examiner, with the approval of the Commission and the Court of Appeals, enjoined the use of direct methods of coercion on the part of Atlantic upon its dealers in the inauguration and promotion of the plan. Atlantic does not seek review of this phase of the case. However, the Commission considered the coercive practices to be symptomatic of a more fundamental restraint of trade, and found the sales commission plan illegal in itself as "a classic example of the use of economic power in one market . . . to destroy competition in another market. . . ." 58 F.T.C. 309, 367. It prohibited Atlantic from participating in any such commission arrangement. [Footnote 2] Similarly, it forbade Page 381 U. S. 362 Goodyear from continuing the arrangement with Atlantic or any other oil company. [Footnote 3] Goodyear and Atlantic filed separate appeals. The Court of Appeals approved the findings of the Commission and affirmed its order. "Appraising Page 381 U. S. 363 the broader aspects of the system [used by Atlantic and Goodyear] as a tying arrangement," it agreed with the Commission that it injured "competition in the distribution of TBA at the manufacturing, wholesale, and retail levels." 331 F.2d 394, 402. We granted certiorari, 379 U.S. 943, because of the importance of the questions raised and especially in light of the holding of the Court of Appeals for the District of Columbia Circuit in Texaco, Inc. v. Federal Trade Comm'n, 118 U.S.App.D.C. 366, 336 F.2d 754, which is in apparent conflict with these cases. We affirm the judgments of the Court of Appeals.ISince Atlantic has not sought review of paragraphs 5 and 6 of the Commission's order as to its use of overt acts of coercion on its wholesalers and retailers, those portions of the order are final. We therefore do not set out in detail all of the facts which are so carefully examined in the opinion of the Court of Appeals.Atlantic is a major producer, refiner and distributor of oil and its byproducts. Its market is confined to portions of 17 States along the eastern seaboard. [Footnote 4] Its distribution system consists of wholesale distributors who purchase gasoline and lubricants in large quantities and retail service station operators who do business either as lessees of Atlantic or as contract dealers selling its products. In 1955, Atlantic had 2,493 lessee dealers, who purchased 39.1% of its gasoline sales, and 3,044 contract dealers, who bought 18.1%. [Footnote 5] About half of the contract Page 381 U. S. 364 dealers were service station operators; the remainder were operators of garages, grocery stores and other outlets which sell gasoline but do not handle tires, batteries and accessories.Goodyear is the largest manufacturer of rubber products in the United States, with sales of over $1,000,000,000 in 1954. It distributes tires, tubes and accessories through 57 warehouses located throughout the country. It does not warehouse batteries; "Goodyear" batteries are tradenamed by it, but manufactured and directly distributed to Goodyear outlets by the Electric Auto-Lite Company and Gould-National Batteries, Inc. Goodyear also sells its products at wholesale and retail through about 500 company-owned stores and through numerous independent dealers. These independent franchised dealers number more than 12,000, there being among them a number of Atlantic wholesale petroleum distributors and retail petroleum jobbers. Goodyear has also had a substantial number of nonfranchised dealers which includes most service station customers, including the Atlantic stations involved here.Gasoline service stations are particularly well suited to sell tires, batteries and accessories. They constitute a large and important market for those products. Since at least 1932, Atlantic has been distributing such products to its dealers. In 1951, it inaugurated the sales commission plan. [Footnote 6] Its contract with Goodyear covered three Page 381 U. S. 365 regions: Philadelphia-New Jersey, New York State, and New England.The Goodyear-Atlantic agreement required Atlantic to assist Goodyear "to the fullest practicable extent in perfecting sales, credit, and merchandising arrangements" with all of Atlantic's outlets. This included announcement to its dealers of its sponsorship of Goodyear products, followed by a field representative's call to "suggest . . . the maintenance of adequate stocks of merchandise" and "maintenance of proper identification and advertising" of such merchandise. [Footnote 7] Atlantic was to instruct its salesmen to urge dealers to "vigorously" represent Goodyear, and to "cooperate with and assist" Goodyear in its "efforts to promote and increase the sale" by Atlantic dealers of Goodyear products. And it was to "maintain adequate dealer training programs in the sale of tires, batteries, and accessories." In addition, the companies organized joint sales organization meetings at which plans were made for perfecting the sales plan. One project was a "double teaming" solicitation of Atlantic outlets by representatives of both companies to convert them to Goodyear products. They were to call on the dealers together, take stock orders, furnish initial price lists and project future quotas of purchases of Goodyear products. Goodyear also required that each Atlantic dealer be assigned to a supply point maintained by it, such as a warehouse, Goodyear store, independent dealer, or designated Atlantic distributor or retail dealer. Atlantic would not receive any commission on purchases made outside of an assigned supply point. Its commission of 10% on sales to Atlantic dealers and 7.5% on sales to its wholesalers was paid on the basis of a master sheet prepared Page 381 U. S. 366 by Goodyear and furnished Atlantic each month. This list was broken down so as to show the individual purchases of each dealer (except those whose supply points for Goodyear products were Atlantic wholesalers). Under this reporting technique, the Commission found, "Atlantic may determine the exact amount of sponsored TBA purchased by each Atlantic outlet. . . ." 58 F.T.C. 309, 351. Goodyear also furnished, this time at the specific request of Atlantic, a list of the latter's recalcitrant dealers who refused to be identified with the "Goodyear Program." These lists Atlantic forwarded to its district offices for "appropriate action." On one occasion, a list of 46 such dealers was furnished Atlantic officials by Goodyear. The Commission found that "the entire group . . . was thereafter signed to Goodyear contracts, and Goodyear advertising signs were installed at their stations." Id. at 346-347.The effectiveness of the program is evidenced by the results. Within seven months after the agreement, Goodyear had signed up 96% and 98%, respectively, of Atlantic's dealers in two of the three areas assigned to it. In 1952, the sale of Goodyear products to Atlantic dealers was $4,175,890 -- 40% higher than Atlantic's sales during the last year of its purchase-resale plan with Lee tires and Exide batteries. By 1955, these sales of Goodyear products amounted to $5,700,121. Total sales of Goodyear and Firestone products from June, 1950, to June, 1956, were over $52,000,000. This enormous increase, the findings indicate, was the result of the effective policing of the plan. The reports of sales by Goodyear to Atlantic enabled it to know exactly the amount of Goodyear products the great majority of its dealers were buying.The Commission stressed the evidence showing that"Atlantic dealers have been orally advised by sales officials of the oil company that their continued status as Atlantic Page 381 U. S. 367 dealers and lessees will be in jeopardy if they do not purchase sufficient quantities of sponsored"tires, batteries and accessories. Id. at 342. Indeed, some dealers lost their leases after being reported for not complying with the Goodyear sales program. But we need not detail this feature of the case, since Atlantic has conceded the point by not perfecting an appeal thereon.IISection 5 of the Federal Trade Commission Act declares "[u]nfair methods of competition in commerce, and unfair . . . acts or practices in commerce . . . unlawful." In a broad delegation of power, it employers the Commission, in the first instance, to determine whether a method of competition or the act or practice complained of is unfair. The Congress intentionally left development of the term "unfair" to the Commission, rather than attempting to define "the many and variable unfair practices which prevail in commerce. . . ." S.Rep.No. 592, 63d Cong., 2d Sess., 13. As the conference report stated, unfair competition could best be prevented"through the action of an administrative body of practical men . . . who will be able to apply the rule enacted by Congress to particular business situations, so as to eradicate evils with the least risk of interfering with legitimate business operations."H.R.Conf.Rep. No. 1142, 63d Cong., 2d Sess., 19. In thus divining that there is no limit to business ingenuity and legal gymnastics, the Congress displayed much foresight. See Federal Trade Comm'n v. Cement Institute, 333 U. S. 683, 333 U. S. 693 (1948). Where the Congress has provided that an administrative agency initially apply a broad statutory term to a particular situation, our function is limited to determining whether the Commission's decision "has warrant in the record' and a reasonable basis in law." Labor Board v. Hearst Page 381 U. S. 368 Publications, Inc., 322 U. S. 111, 322 U. S. 131 (1944). While the final word is left to the courts, necessarily "we give great weight to the Commission's conclusion. . . ." Federal Trade Comm'n v. Cement Institute, supra, at 333 U. S. 720.IIICertainly there is "warrant in the record" for the findings of the Commission here. Substantial evidence supports the conclusion that, notwithstanding Atlantic's contention that it and its dealers are mutually dependent upon each other, they simply do not bargain as equals. Among the sources of leverage in Atlantic's hands are its lease and equipment loan contracts, with their cancellation and short-term provisions. Only last Term, we described the power implications of such arrangements in Simpson v. Union Oil Co., 377 U. S. 13 (1964), and we need not repeat that discussion here. It must also be remembered that Atlantic controlled the supply of gasoline and oil to its wholesalers and dealers. This was an additional source of economic leverage, United States v. Loew's, Inc., 371 U. S. 38, 371 U. S. 45 (1962), as was its extensive control of all advertising on the premises of its dealers.Furthermore, there was abundant evidence that Atlantic, in some instances with the aid of Goodyear, not only exerted the persuasion that is a natural incident of its economic power, but coupled with it direct and over threats of reprisal such as are now enjoined by paragraphs 5 and 6 of the order. Indeed, the Commission could properly have concluded that it was for this bundle of persuasion that Goodyear paid Atlantic its commission. We will not repeat the manner in which this sponsorship was carried out. It is sufficient to note that the most impressive evidence of its effectiveness was its undeniable success within a short time of its inception. In 1951, seven months after the sales commission plan had gone into effect, Goodyear had enjoyed great success in signing Page 381 U. S. 369 contracts with Atlantic dealers despite the fact that a 1946-1949 survey had shown that 67% of the dealers had preferred Lee tires and 76% Exide batteries.With this background in mind, we consider whether there was a "reasonable basis in law" for the Commission's ultimate conclusion that the sales commission plan constituted an unfair method of competition.IVAt the outset, we must stress what we do not find present here. We recognize that the Goodyear-Atlantic contract is not a tying arrangement. Atlantic is not required to tie its sale of gasoline and other petroleum products to purchases of Goodyear tires, batteries and accessories. Nor does it expressly require such purchases of its dealers. But neither do we understand that either the Commission or the Court of Appeals held that the sales commission arrangement was a tying scheme. What they did find was that the central competitive characteristic was the same in both cases -- the utilization of economic power in one market to curtail competition in another. Here, that lever was bolstered by actual threats and coercive practices. As our cases hold, all that is necessary in § 5 proceedings to find a violation is to discover conduct that "runs counter to the public policy declared in the" Act. Fashion Originators' Guild v. Federal Trade Comm'n, 312 U. S. 457, 312 U. S. 463 (1941). But this is, of necessity, and was intended to be, a standard to which the Commission would give substance. In doing so, its use as a guideline of recognized violations of the antitrust laws was, we believe, entirely appropriate. It has long been recognized that there are many unfair methods of competition that do not assume the proportions of antitrust violations. Federal Trade Comm'n v. Motion Picture Advertising Service Co., 344 U. S. 392, 344 U. S. 394 (1953). When conduct does bear the characteristics Page 381 U. S. 370 of recognized antitrust violations, it becomes suspect, and the Commission may properly look to cases applying those laws for guidance.Although the Commission relied on such cases here, it expressly rejected a mechanical application of the law of tying arrangements. Rather, it looked to the entire record as a basis for its conclusion that the activity of Goodyear and Atlantic impaired competition at three levels of the tires, batteries and accessories industry. It found that wholesalers and manufacturers of competing brands, and even Goodyear wholesalers who were not authorized supply points, were foreclosed from the Atlantic market. In addition, it recognized the obvious fact that Firestone and Goodyear were excluded from selling to Atlantic's dealers in each other's territories. Both of these effects on competition flowed from the contract itself. It also found that the plight of Atlantic wholesalers and retailers was equally clear. They had to compete with other wholesalers and retailers who were free to stock several brands, but they were effectively foreclosed from selling brands other than Goodyear. This restraint is, in this respect, broader than the one found in International Salt Co. v. United States, 332 U. S. 392 (1947), where the dealers could stock other salt if they could buy it at lower prices. Here the dealers could buy only at Goodyear's price.Thus, the Commission was warranted in finding that the effect of the plan was as though Atlantic had agreed with Goodyear to require its dealers to buy Goodyear products, and had done so. It is beyond question that the effect on commerce was not insubstantial. In International Salt Co., the market foreclosed was $500,000 annually. Firestone and Goodyear sales alone exceeded $11,000,000 in 1955 and $50,000,000 in six years, and more than 5,500 retailers and wholesalers were affected. Page 381 U. S. 371Goodyear and Atlantic contend that the Commission should have made a far more extensive economic analysis of the competitive effect of the sales commission plan, examining the entire market in tires, batteries and accessories. But just as the effect of this plan is similar to that of a tie-in, so is it unnecessary to embark upon a full scale economic analysis of competitive effect. We think it enough that the Commission found that a not insubstantial portion of commerce is affected. See United States v. Loew's, Inc., 371 U. S. 38, 371 U. S. 45, n. 4 (1962); International Salt Co. v. United States, 332 U. S. 392 (1947).Nor can we say that the Commission erred in refusing to consider evidence of economic justification for the program. While these contracts may well provide Atlantic with an economical method of assuring efficient product distribution among its dealers, they also amount to a device that permits suppliers of tires, batteries and accessories, through the use of oil company power, to effectively sew up large markets. Upon considering the destructive effect on commerce that would result from the widespread use of these contracts by major oil companies and suppliers, we conclude that the Commission was clearly justified in refusing the participants an opportunity to offset these evils by a showing of economic benefit to themselves. Northern Pacific R. Co. v. United States, 356 U. S. 1, 356 U. S. 6-7 (1958).The short of it is that Atlantic with Goodyear's encouragement and assistance, has marshaled its full economic power in a continuing campaign to force its dealers and wholesalers to buy Goodyear products. The anticompetitive effects of this program are clear on the record, and render unnecessary extensive economic analysis of market percentages or business justifications in determining whether this was a method of competition which Congress has declared unfair and therefore unlawful. Page 381 U. S. 372VWe now turn to the matter of relief. As we have said, the Commission's order forbids Atlantic's participation in any contract with any supplier of tires, batteries and accessories whereby it receives anything of value in connection with the sale of such products by any marketer. It also prohibits Goodyear from continuing or effecting any contract with Atlantic, "or with any other marketing oil company," whereby Goodyear pays anything of value to the oil company in connection with the sale of tires, batteries and accessories by Goodyear to wholesalers or retailers of the oil company.1. We first consider Atlantic, whose major argument is that the order is arbitrary, and goes too far. It disallows the sales commission plan, Atlantic says, but permits reinstitution of the old purchase resale plan even though the latter has the same anticompetitive effects and is a less effective method of distribution. This position flows from the language of the order which prohibits Atlantic's receipt of anything of value in connection with the sale of tires, batteries and accessories by any marketer "other than The Atlantic Refining Company." The merits of the purchase-resale plan, however, were not before the Commission, and we therefore have no occasion to pass upon them. Nor do we believe that the order is too broad. Section 5(b) empowers the Commission to issue a cease and desist order against anyone using an unfair method of competition in commerce. The Commission was of the opinion that to enjoin the use of overt coercive tactics was insufficient. We think it was justified in this conclusion. The long existence of the plan itself, coupled with the coercive acts practiced by Atlantic pursuant to it, warranted a decision to require more. The Commission could have decided that to uproot the practice required its complete prohibition; otherwise, dealers would Page 381 U. S. 373 not enjoy complete freedom from unfair practices which the Act condemns. These are matters well within the ambit of the Commission's authority.2. As for Goodyear, we hold that the order is entirely within the power of the Commission. Both the Commission and the Court of Appeals stressed that the sales commission plan enabled Goodyear"to integrate [into] its own nationwide distribution system the economic power possessed by Atlantic over its wholesale and retail petroleum outlets."58 F.T.C. at 348. In addition, the Commission dedicated a considerable portion of its opinion to Goodyear's role in carrying it out. Thus, although it is the oil company's power and overt acts toward its outlets that outlaw the commission plan, the Commission was not restricted solely to an examination of its activity. Rather, in deciding upon the relief to be entered against Goodyear, it could appropriately consider its propensity for harnessing and utilizing that power. Because of the relevance of that evidence to our present inquiry, we will consider it here in some detail.Goodyear was no silent or inactive partner in the implementation of the sales commission plan. It did not simply sit back and passively accept whatever benefits might accrue to it from the Atlantic contract. Indeed, the most striking aspect of the program, in the Commission's view, was the degree to which the petitioners worked together to achieve the program's success. A Goodyear representative put it very neatly when he said: "After years of courtship, Atlantic and Goodyear have wed. . . . We welcome wholeheartedly this merger."Examples of this close cooperation were numerous. Atlantic had a rather large turnover in dealerships, as well as a substantial number of new station openings each year. With the selection of persons to man these stations, Goodyear supply points were notified by Atlantic before they actually began operations, thus allowing Page 381 U. S. 374 Atlantic-Goodyear teams an opportunity to call on the prospective dealer, to get initial orders before local competitors, and to condition acceptance of the Goodyear line. Goodyear brands were used for demonstration in Atlantic training schools for these new dealers, and discussions of tires, batteries and accessories at these schools were often conducted by representatives of both Atlantic and Goodyear.Moreover, Atlantic gave Goodyear lists of its dealers so that the latter could remove advertising for other products and replace it with its own. Goodyear sent lists of dealers refusing to accept its advertising to Atlantic for "appropriate action," and it will be recalled that, on one occasion, when a list of 46 such dealers was forwarded to Atlantic, all soon fell into line. This is a particularly impressive example of Goodyear's inclination to use Atlantic's power for its own benefit. And there are more.The reporting technique used by petitioners was especially revealing. Through it, Atlantic could determine the exact amount of sponsored products purchased by each Atlantic retail outlet from its assigned supply point. Goodyear supplied this information sua sponte, insofar as the record shows. Ostensibly, it was used in determining commissions due Atlantic. What makes it suspect is the detail with which it was compiled -- wholly unnecessary for commission payment purposes. Its potential use for channeling pressures upon recalcitrant dealers is obvious. And, when considered alongside the admitted overt coercive practices of Atlantic, this list becomes a potent device in ensuring the success of the program.The Commission also found that Goodyear and Atlantic concluded that the most effective merchandising tactic was dual solicitation, or so-called "double-teaming." Goodyear relied heavily on this technique, and had urged it on the oil companies in a 1951 letter from its sales commission program manager. The Commission found Page 381 U. S. 375 that"Goodyear thus appeared confident that the presence of an Atlantic salesman, together with the Goodyear representative, would render unnecessary any higgling or haggling over price before obtaining an initial order for TBA from Atlantic dealers."58 F.T.C. at 355. (Emphasis in the original.) Goodyear's confidence was justified, for, as the Commission observed, the annual dealer evaluation by Atlantic salesmen carried substantial weight when the district managers decided upon annual lease extensions, and dealers were therefore understandably susceptible to the encouragement of Goodyear salesmen when Atlantic men were nearby looking over their shoulders. Thus, the Commission was well justified in concluding that Goodyear had, in effect, purchased a "captive market."With the preceding discussion in mind, we turn to Goodyear's relationships with other oil companies. As of December, 1964, it had sales commission agreements with 20 other oil companies. Nine of these contracts were before the Commission in the instant case, and were found to be, "in all material respects, identical with the Goodyear-Atlantic contract." Id. at 352. They similarly require the companies to assist actively in the "selling and promotion" of Goodyear products. There is specific evidence in the record of the short-term lease agreements used by Shell, Sinclair and Sherwood Bros., three of the companies with which Goodyear has such agreements. Moreover, there was some indication that only three oil companies use three-year leases. Furthermore, there was evidence of practices by at least four oil companies and Goodyear similar to those existing under the Atlantic arrangement. These included threats, as well as more subtle pressures.Goodyear complains that there is no evidence of the economic power of many of the companies with which it has sales commission plans. However, the Commission's Page 381 U. S. 376 order does not directly restrict the activities of these companies. Goodyear, on the other hand, was before the Commission, and was found to be a transgressor. There was substantial evidence of its propensity to use the power structure of Atlantic and at least four other oil companies to further its own distribution program. Nor is it any objection for Goodyear to claim that it did not exert any overt coercive pressures on the oil companies' outlets. It is of little consequence that Atlantic actually applied the pressure. For so close was the teamwork of the two companies that, even with blinders on, Goodyear could not have been ignorant of those practices. It is difficult to escape the conclusion that there would have been little point in paying substantial commissions to oil companies were it not for their ability to exert power over their wholesalers and dealers -- an ability adequately demonstrated on this record. Its allowance of these substantial overriding commissions in fact paid off handsomely. Goodyear's sales under its various sales commission contracts rose from $16,700,000 in 1951 to $36,000,000 in 1955The Commission, of course, has "wide discretion in its choice of a remedy deemed adequate to cope with . . . unlawful practices. . . ." Jacob Siegel Co. v. Federal Trade Comm'n, 327 U. S. 608, 327 U. S. 611 (1946). Furthermore, it acts within the limits of its authority when it bars repetitions of similar conduct with other parties. Federal Trade Comm'n v. Henry Broch & Co., 368 U. S. 360, 368 U. S. 364 (1962). There was ample evidence establishing on Goodyear's part a course of conduct lasting over 14 years aimed at utilizing oil company power structures to curtail competition in tires, batteries and accessories. We think that the Commission could appropriately conclude that this course of conduct required forbidding the use of sales commission plans by Goodyear completely.This order does not necessarily prohibit Goodyear from making contracts with companies not possessed of economic Page 381 U. S. 377 power over their dealers. The evidence in this particular record, however, does involve relationships such as it has enjoyed with Atlantic and its propensity to use those relationships for an unfair competitive advantage. Goodyear offered no evidence that it has arrangements differing from those mentioned in the instant case. In these circumstances, it is sufficient to point out that, in the event it has such a contract with such a company, it may seek a reopening of the order approved today. The Commission has statutory power to reopen and modify its orders at all times. But Congress has placed in the Commission in the first instance the power to shape the remedy necessary to deal with unfair methods of competition. We will interfere only where there is no reasonable relation between the remedy and the violation. Federal Trade Comm'n v. Ruberoid Co., 343 U. S. 470, 343 U. S. 473 (1952). On this record, we cannot say that the Commission's remedy is unreasonable, and the judgments are thereforeAffirmed

U.S. Supreme CourtAtlantic Refining v. FTC, 381 U.S. 357 (1965)Atlantic Refining v. Federal Trade CommissionNo. 292Argued March 30, 1965Decided June 1, 1965*381 U.S. 357SyllabusThe Atlantic Refining Co., a major producer and distributor of gasoline and oil products on the eastern seaboard, agreed with the Goodyear Tire & Rubber Co., the country's largest manufacturer of rubber products, to sponsor the sale of the latter's tires, batteries and accessories (TBA) to its many retail service station dealers and wholesale outlets. Atlantic was primarily responsible for promoting the sale of Goodyear products to its dealers and assisting in their resale, for which it received a commission on all sales made to the wholesalers and dealers. The Federal Trade Commission (FTC) enjoined the use of direct methods of coercion by Atlantic on its dealers in the inauguration and promotion of the plan, and Atlantic does not seek review of this aspect of the case. The FTC also found the sales commission plan illegal as a classic example of the use of economic power in one market to destroy competition in another, and prohibited both Atlantic and Goodyear from participating in such arrangements. The Court of Appeals affirmed.Held:1. Where Congress has empowered the FTC to determine whether the methods, acts or practices of competition are unfair, the function of the courts is to determine whether the FTC's decision is warranted by the record and has a reasonable basis in law. Pp. 381 U. S. 367-368.2. The record contains substantial evidence to support the FTC's findings. Pp. 381 U.S. 368-369.(a) Atlantic and its dealers did not bargain as equals, in the light of Atlantic's leverage of short-term leases, equipment loans to dealers, control of gasoline and oil supplies, and control of dealer advertising. P. 381 U.S. 368.(b) Atlantic not only exercised the persuasion that resulted from its economic power, but coupled it with threats of reprisal which the FTC enjoined. P. 381 U.S. 368. Page 381 U. S. 358(c) The effectiveness of Atlantic's sponsorship of Goodyear's products is measured by the increase in sales soon after the plan was put in operation. Pp. 381 U.S. 368-369.3. A violation of § 5 of the Federal Trade Commission Act consists of conduct contrary to the public policy declared in the Act, and the FTC may use as a guideline recognized violations of the antitrust laws. Pp. 381 U. S. 369-371.(a) The FTC found that the sales commission plan impaired competition at all three levels of the TBA industry: manufacturing, wholesaling and retailing. P. 381 U. S. 370.(b) The FTC was warranted in finding that the plan, which had a substantial effect on commerce, had the same effect as though Atlantic had agreed to, and did, require its dealers to buy Goodyear products. P. 381 U. S. 370.(c) Since the effect of the plan is similar to that of a tie-in, it is not necessary to embark on a full-scale economic analysis of competitive effect. P. 381 U. S. 371.(d) In view of the destructive effect on commerce of the widespread use of the sales commission plan, the FTC was justified in refusing to consider evidence of business justification for the program. P. 381 U. S. 371.4. The FTC's order prohibiting each petitioner from entering into or performing any similar agreement is not unreasonable. Pp. 381 U. S. 372-377.(a) It is within the FTC's authority to determine that the long existence of the plan, coupled with Atlantic's coercion of its dealers, warranted a complete prohibition of the practice by Atlantic. Pp. 381 U. S. 372-373.(b) Goodyear was an active participant in carrying out the sales commission plan, and the prohibition directed against it is within the FTC's power. Pp. 381 U. S. 373-375.(c) There was ample evidence, including 9 sales commission agreements with other oil companies which the FTC found to be substantially identical with the Atlantic-Goodyear contract, of Goodyear's conduct for more than 14 years aimed at using oil company power structures to curtail competition in TBA. The FTC could conclude therefrom that such conduct required proscribing the use of the sales commission plan by Goodyear. Pp. 381 U. S. 375-376. Page 381 U. S. 359(d) If Goodyear has an agreement with another company which differs from that involved herein, it may seek a reopening of the FTC's order. P. 381 U. S. 377.331 F.2d 394, judgments affirmed.

1962_40

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.This case concerns disapproval by the Interstate Commerce Commission of a proposed merger on the ground that "control and management in a common interest" over the two applicant carriers had been unlawfully effectuated prior to the merger application in violation of § 5(4) of the Interstate Commerce Act, as amended, 54 Stat. 907, 49 U.S.C. § 5(4). [Footnote 1]The applicant carriers are L. Nelson & Sons Transportation Co. and Gilbertville Trucking Co., both of whom are certificated by the Commission as common carrier motor carriers. The principal stockholders of Nelson Co. are two half brothers, Charles Chilberg and Clifford Nelson; Gilbertville Co. is wholly owned by a third brother, Kenneth Nelson.The merger application was filed October 6, 1955, by the two carriers and their stockholders pursuant to § 5(2) of Page 371 U. S. 117 the Act. Two and a half months later the Commission initiated an investigation into the possibility of a § 5(4) violation pursuant to authority granted by § 5(7) of the Act. The two proceedings were consolidated for hearing. The trial examiner determined that § 5(4) was being violated, but recommended that the merger be approved on the ground that the violation was neither intentional nor flagrant. Division 4 affirmed the finding of a violation, but disapproved the merger, and ordered the violation terminated. 75 M.C.C. 45. On reconsideration, the full Commission affirmed the Division, but further ordered that Kenneth Nelson divest himself of Gilbertville Co. 80 M.C.C. 257. A suit before a three-judge United States District Court for the District of Massachusetts to enjoin and set aside the Commission's orders was dismissed on the ground that the orders were reasonable and supported by substantial evidence. 196 F. Supp. 351. An appeal was taken to this Court contesting (1) the finding of a § 5(4) violation, (2) the denial of the merger, and (3) the order of divestiture. We noted probable jurisdiction. 368 U.S. 983.The factual issue in this case turns upon the development of family, management, and operational relationships between Nelson, Gilbertville, and a third carrier, R. A. Byrnes, Inc., which is owned by the principal stockholders of Nelson.The Nelson transportation business was first organized in 1930 as a partnership. In 1947, it was incorporated as L. Nelson & Sons Transportation Co., and stock issued to Mrs. Nelson (formerly Mrs. Chilberg) and four of her seven children (including Kenneth Nelson, Clifford Nelson, and Charles Chilberg). Upon Mrs. Nelson's death in 1950, equal numbers of shares of her stock in Nelson Co. were devised to her seven children. In 1951, Kenneth Nelson sold his original shares received in 1947 to Charles Chilberg and Clifford Nelson, and agreed to sell to them Page 371 U. S. 118 the remainder to which he was entitled on distribution of the estate. The distribution and transfer were made on January 23, 1953. Since that date, Charles and Clifford have been the principal stockholders in Nelson Co. Charles is now president and treasurer; Clifford is secretary and assistant treasurer.Upon the sale of his stock in 1951, Kenneth Nelson resigned as an officer and director of Nelson Co. However, he kept his office at Nelson Co. headquarters in Ellington, Connecticut, and was retained by the company as a "free-lance tariff consultant." In such capacity, he was paid approximately $15,000 in 1952 and $13,000 in 1953. While he claims to have been an independent contractor, his only client was Nelson Co. In the third week of January, 1953, Kenneth Nelson wrote to Nelson Co.'s accountant, Mr. Sanol Solomon, requesting advice on the acquisition of Gilbertville Trucking Co. Soon thereafter, Kenneth began negotiations with Gilbertville's owner, and on March 3, 1953, took over control. Since July, 1953, all the stock in Gilbertville has been controlled by Kenneth.In April of 1954, Charles Chilberg and Clifford Nelson obtained temporary authority from the Commission to take over the operations of R. A. Byrnes, Inc.; their acquisition of Byrnes stock was approved in August, 1956.The routes of these three carriers form a cohesive network along the eastern seaboard from Massachusetts to the District of Columbia. Gilbertville is presently certificated by the Commission as a common carrier for general commodities over regular and irregular routes between points in Massachusetts, Connecticut, Rhode Island, and New York City. Byrnes is certificated as a common carrier for general commodities over irregular routes between New York City, Philadelphia, the District of Columbia, and points adjacent to these cities. It is also certificated as a contract carrier of canned goods in Massachusetts, Page 371 U. S. 119 Connecticut, and Rhode Island. Nelson is certificated as a common carrier for textile commodities over irregular routes between points in Massachusetts, New Hampshire, Rhode Island, Connecticut, and areas adjacent to New York and Philadelphia. It is also certificated for general commodities in intrastate traffic in Connecticut and Massachusetts. Thus, the Gilbertville and Byrnes general commodity routes complement each other perfectly, and overlap to a considerable degree the textile routes of Nelson.Soon after his acquisition of Gilbertville, Kenneth Nelson instituted a number of permanent changes in the carrier's operations tending to integrate the terminal facilities of Nelson and Gilbertville; he received, where necessary, the cooperation of Nelson Co. Kenneth obtained permission from the Commission to move the business records and head offices of the acquired company from Gilbertville, Massachusetts, the place of incorporation, to Ellington, Connecticut, and took over the second floor of the Nelson Co. office building. Where possible, Gilbertville used the Nelson terminals, subletting from Nelson in Ellington, Connecticut; New York City; Newton, Massachusetts; and Woonsocket, Rhode Island. Its only other terminal was at Gilbertville, Massachusetts. In seven cities, Gilbertville and Nelson were listed under the same telephone number, and they shared inter-terminal telephone lines. Almost identical changes took place in 1954 upon Commission approval of Charles Chilberg and Clifford Nelson's acquisition of Byrnes. Byrnes' offices were moved from Mullica Hill, New Jersey, to the Nelson, Co. headquarters in Ellington, Connecticut; Byrnes shared the Nelson terminal in New York; it listed under the Nelson telephone number; it shared inter-terminal telephone lines. Since the Byrnes changes were the direct result of control and management in a common interest of Byrnes and Nelson in the hands of Charles and Clifford, it Page 371 U. S. 120 might be inferred that the Gilbertville changes were similarly indicative of control and management in a common interest of Nelson and Gilbertville.Further substantiation of this terminal integration is provided by a fourth corporation, Bergson Company, a real estate corporation formed to receive the residual properties of Mrs. Linnea Nelson's estate. Bergson owns the terminals leased to Nelson Co. at Philadelphia, Ellington, Woonsocket, and Newton, three of which are sublet to Gilbertville. Since Bergson is owned in equal shares by all seven children, all of whom are directors, it provides a direct corporate tie-in between Kenneth Nelson and his brothers.While it is not unusual for independent carriers to share terminal facilities, as indeed Gilbertville and Nelson do with unrelated carriers in New York and Woonsocket, the repetition of such practices throughout their respective systems makes their alleged independence suspect. When these practices are then supplemented by further day-to-day practices integrating business, equipment, and managerial policies, the Commission is justified in concluding the carriers are in fact being managed and controlled in a common interest. Such additional practices are readily found in the record of this case.Most significant is the equipment interdependence between Nelson and Gilbertville. When acquired for $35,000 in 1953, Gilbertville had a deficit about equal to the purchase price, assets of only $69,000, and a 1953 operating revenue of only $75,000. By 1956, Kenneth Nelson had increased the operating revenue to a seven-month figure of $444,777. This impressive growth was made in the face of a continual short-term credit squeeze and lack of working capital and equipment. Nelson Co., however, was operating in a declining textile market in the Northeast, with highly periodic demands for carriage. As a result, Nelson had a fluctuating overcapacity in Page 371 U. S. 121 equipment which was leased only to Gilbertville and occasionally Byrnes. Kenneth Nelson estimated that Gilbertville had from one to six tractor-trailer units on trip-lease from Nelson Co. every day, and up to five other pieces of equipment on permanent lease, an amount equal at times to over one half of Gilbertville's own carriage capacity. Added to this equipment interdependence between Nelson and Gilbertville were certain interlining practices. [Footnote 2] Gilbertville interlined between 25% and 30% of its business. Over one-third of this interline business was with Nelson Co. and Byrnes, the majority being in truckload quantities. Owing to its equipment shortage, Gilbertville interlined with Nelson pursuant to a practice whereby a trip-lease was made out at the start of a run to take effect at the point of transfer to Gilbertville routes so that the Nelson tractor-trailer operated throughout the trip; moreover, the same driver might stay with the unit, changing employers at the point of transfer. [Footnote 3] Page 371 U. S. 122Finally, the record includes evidence that, on four occasions, Commission employees discovered on highway spot checks that one of the carriers carried small shipments belonging to the other; that Nelson did about one-quarter of the Gilbertville repairs; and that Charles Chilberg and Kenneth Nelson each exercised managerial control over employees of both Nelson and Gilbertville. [Footnote 4]This evidence is sufficient to show that Nelson and Gilbertville were, in fact, being controlled and managed in a common interest to a considerable degree. If § 5(4) was intended by Congress to reach such de facto relationships, the Commission was warranted in concluding the section was being violated.ISection 5(4) is part of a comprehensive legislative scheme designed to place ownership, management, and operational control over common carriers within the regulatory jurisdiction of the Commission. Simply, § 5(2)(a) gives the Commission power to authorize and approve the Page 371 U. S. 123 joint operation of properties belonging to two or more common carriers or the merger of such carriers; § 5(4) then declares,"It shall be unlawful for any person, except as provided in paragraph (2), to enter into any transaction within the scope of subparagraph (a) thereof, or to accomplish or effectuate, or to participate in accomplishing or effectuating, the control or management in a common interest of any two or more carriers, however such result is attained, whether directly or indirectly, by use of common directors, officers, or stockholders, a holding or investment company or companies, a voting trust or trusts, or in any other manner whatsoever. . . . As used in this paragraph . . . , the words 'control or management' shall be construed to include the power to exercise control or management."The complementary character of these two sections was discussed at some length in United States v. Marshall Transport Co., 322 U. S. 31. As originally enacted in the Emergency Railroad Transportation Act of 1933, 48 Stat. 217, § 5(4) was applicable only to railroads; it was extended to cover motor carriers in the Transportation Act of 1940, 54 Stat. 905, 907-908. As the appellants correctly state, Congress, in passing § 5(4) and the supplementary § 5(5) and (6), [Footnote 5] was primarily concerned with Page 371 U. S. 124 reaching the elaborate corporate devices used to centralize control over the railroads "without commission supervision and in defiance of the will of Congress." [Footnote 6] Although Congress had intended the Transportation Act of 1920 to provide complete supervision, the Act proved inadequate Page 371 U. S. 125 to reach the holding company system. [Footnote 7] On the basis of this history, the appellants argue that § 5(4) is limited to proscription of corporate devices, and will not reach the informal relationships shown on this record.Such a narrow interpretation of the statute, however, confuses the particular manifestation of the problem with which Congress was faced in 1933 with the ultimate congressional intention of effectuating the Commission's jurisdiction under § 5(2). On its face, § 5(4) proscribes not just corporate and legal devices, but control effectuated "in any other manner whatsoever." Any doubt as to the scope of this phrase was removed when Congress added the definition of "control" to § 1(3)(b) of the Act in the Transportation Act of 1940, 54 Stat. 899-900. This section states that, for purposes of § 5 and other sections, "control""shall be construed to include actual, as well as legal, control, whether maintained or exercised through or by reason of the method of or circumstances surrounding organization or operation. . . ."We have construed this language to encompass every type of control in fact, and have left to the agency charged with enforcement the determination from the facts whether "control" exists, subject to normal standards of review. Marshall Transport Co., supra, p. 322 U. S. 38; Alleghany Corp. v. Breswick & Co., 353 U. S. 151, 353 U. S. 163-165; Rochester Telephone Corp. v. United States, 307 U. S. 125, 307 U. S. 145-146. In this manner, the Commission may adapt § 5(4) to the actualities and current practices of the industry involved and apply it to the extent it feels necessary to protect its jurisdiction under § 5(2) without having to return to Congress for additional authority every time industry practices change.A cursory glance at Commission experience shows the type of informal practices in the motor carrier industry which the Commission has decided are covered by § 5(4), Page 371 U. S. 126 and must first be approved under § 5(2). Typical of these practices have been attempts by active carriers to effectively lease the routes of a dormant carrier by interlining and trip-leasing their equipment continuously over the dormant carrier's routes, e.g., Nigro Freight Lines, Inc. -- Purchase -- Coady Trucking Co., 90 M.C.C. 113; attempts by carriers to acquire other carriers by supplying funds to allegedly independent third-party purchasers, e.g., Black-Investigation of Control -- Colony Motor Transportation, 75 M.C.C. 275; Coldway Food Express, Inc. -- Control and Merger -- Foodway Express, Inc., 87 M.C.C. 123; attempts by inactive owners to allow an employee of another carrier to manage and merge operations of the two carriers, e.g., Gate City Transport Co. -- Control -- Square Deal Cartage Co., 87 M.C.C. 591. In the present case, the trial examiner held that the facts in this record "require a finding" of control and management in a common interest in violation of § 5(4). Division 4, after a similar review of the facts, concurred. On reconsideration, the full Commission affirmed the finding and conclusion of the examiner and Division 4. Judicial review of this conclusion is limited to consideration of whether it has a rational basis and is supported by substantial evidence. United States v. Pierce Auto Lines, Inc., 327 U. S. 515; Mississippi Valley Barge Line Co. v. United States, 292 U. S. 282, 292 U. S. 286-287. [Footnote 8] After our review of the facts and statutory sections involved, we detect no reason to disturb this finding. [Footnote 9] Page 371 U. S. 127IIHowever, even admitting a § 5(4) violation, the appellants protest as arbitrary the denial of their application for approval of the proposed merger of Nelson and Gilbertville. Section 5(2) provides that a transaction within its scope is to be approved if found to be "consistent with the public interest." The statute entrusts the Commission with the duty to decide what considerations other than those specifically mentioned in § 5(2)(c) shall be given weight. Cf. McLean Trucking Co. v. United States, 321 U. S. 67, 321 U. S. 86-88; Schwabacher v. United States, 334 U. S. 182, 334 U. S. 193. As in the case of an original application for a certificate, the Commission has chosen to give weight to an applicant's fitness. E.g., Transamerican Freight Lines, Inc. -- Control and Merger -- The Cumberland Motor Express Corp., 75 M.C.C. 423, 428; cf. Interstate Commerce Act, § 207, 49 Stat. 551, 49 U.S.C. § 307. Integral to a determination of fitness is the applicant's willingness and ability to fulfill its obligations to Page 371 U. S. 128 the Commission, considerations which may be demonstrated in part by past or continuing violations of Commission regulations. E.g., Powell -- Purchase -- Rampy, 57 M.C.C. 597. This has not been contested by the appellants, and its relevance to a finding of consistency with the public interest is self-evident. Nor do they dispute the principle recently stated by the Commission in Central of Georgia R. Co. Control, 307 I.C.C. 39, 43, that a § 5(4) violation may alone bar approval of a merger unless, "upon consideration of all the facts, it clearly appears that the public interest will be served best by such approval." Rather, they contend that, in this case, the Commission refused to consider all the facts presented and, in effect, made a § 5(4) violation an automatic bar to approval of a subsequent merger. To support this allegation, the appellants point to the undisputed findings of the trial examiner that the violation in this case was neither willful, flagrant, nor the result of persistent disregard for regulation. They compare these findings with past Commission holdings that violations will be overlooked in the absence of willfulness, e.g., Gate City Transport Co. -- Control -- Square Deal Cartage Co., supra, and conclude that the rule applied in the present case must have been automatic.However, even an automatic rule is not necessarily arbitrary. As already noted, § 5(4) is integral to the success of the regulatory scheme. To approve a merger in the face of a § 5(4) violation may encourage others whose merger may or may not be consistent with the public interest to either present the Commission with a fait accompli or avoid its jurisdiction altogether. As the Commission pointed out in Central of Georgia, if such practices were encouraged, "our administration of the statute in the public interest would be seriously hindered, if not defeated." 307 I.C.C. at 44. This additional interest in the proper administration of the statute places Page 371 U. S. 129 upon the applicant a heavier burden than may be the case for other regulatory violations, and mere lack of willfulness or alleged innocence need not suffice.In fact, the Commission's rule is not automatic, and will give way to a clear showing of public interest in approval. However, the appellants cannot attack the Commission's order under even this less stringent rule, since they made no clear showing of a public interest in approval such as a public need for the merged service or for larger consolidated carriers. The order denying the merger is therefore affirmed.IIIThe Commission's final order requires Kenneth Nelson to divest himself of his stock in Gilbertville Co. in order to terminate the § 5(4) violation. No other reference to divestiture can be found. In view of his recommendation that the merger be approved, the trial examiner made no findings or recommendations on a remedy for the violation. Division 4, upon denial of the merger, simply ordered that each of the applicants is hereby "required to terminate the violation." On reconsideration, the full Commission reinstated Division 4's order, but added, without explanation in its report, the order to divest. The District Court attempted to provide the rationale by suggesting that divestiture was so perfectly suited to the nature of the violation, an unlawful acquisition, that no explanation was necessary.There is little question that divestiture is within the scope of the Commission's power, since, with respect to a § 5(4) violation, it may order any party to "take such action as may be necessary, in the opinion of the Commission, to prevent continuance of such violation." § 5(7). Where the unlawful control is the result of an acquisition, divestiture may be the only effective remedy. However, as § 5(7) itself implies, the Commission's power is corrective, Page 371 U. S. 130 not punitive. The justification for the remedy is the removal of the violation.The use of equitable powers to expunge a statutory violation has been fully developed in the context of the antitrust laws, and is, in many respects, applicable to § 5(7). The "most drastic, but most effective" of these remedies is divestiture. And,"[i]f the Court concludes that other measures will not be effective to redress a violation, and that complete divestiture is a necessary element of effective relief, the Government cannot be denied the latter remedy because economic hardship, however severe, may result."United States v. E. I. du Pont de Nemours & Co., 366 U. S. 316, 366 U. S. 326-327. Our duty is to give "complete and efficacious effect to the prohibitions of the statute" with as little injury as possible to the interests of private parties or the general public. United States v. American Tobacco Co., 221 U. S. 106, 221 U. S. 185. As these cases indicate, the choice of remedy is as important a decision as the initial construction of the statute and finding of a violation. The court or agency charged with this choice has a heavy responsibility to tailor the remedy to the particular facts of each case so as to best effectuate the remedial objectives just described. Cf. Hecht Co. v. Bowles, 321 U. S. 321, 321 U. S. 329-331.As § 5(7) expressly states, the Commission is charged with choosing the proper remedy in this case. Judicial review is accordingly limited. "It extends no further than to ascertain whether the Commission made an allowable judgment in its choice of the remedy." Jacob Siegel Co. v. Federal Trade Comm'n, 327 U. S. 608, 327 U. S. 612. But prerequisite to such review is evidence that a judgment was, in fact, made, that the parties were heard on the issue, that the proper standards were applied. We find no such evidence in this record. Rather, we are faced with evidence that the statutory violation occurred not just from Kenneth Nelson's act of acquiring Gilbertville, Page 371 U. S. 131 but from the acquisition plus subsequent practices integrating the management and operations of Nelson and Gilbertville, practices that could conceivable be discontinued without divestiture. In addition the trial examiner found that the violation was not willful, and that the parties' experience in this proceeding would make them more responsive to regulation in the future.By referring to these mitigating considerations, we have no intention of prejudging the Commission or implying that divestiture would be unwarranted after proper treatment of the issue. These considerations merely indicate that a doubt can be raised, and that a remand to the Commission is not purely academic for the sake of procedural regularity. When the Commission has exercised its judgment and issued its considered opinion, the propriety of the remedy chosen will be ripe for review. Jacob Siegel Co. v. Federal Trade Comm'n, supra; Administrative Procedure Act, § 8(b), 60 Stat. 242, 5 U.S.C. § 1007(b).The judgment of the District Court is reversed in part and the case remanded for further proceedings in conformity with this opinion.It is so ordered

U.S. Supreme CourtGilbertville Trucking Co., Inc. v. United States, 371 U.S. 115 (1962)Gilbertville Trucking Co., Inc. v. United StatesNo. 40Argued October 15, 1962Decided December 3, 1962371 U.S. 115SyllabusAppellants, two incorporated common carriers by motor vehicle and their stockholders, applied to the Interstate Commerce Commission under § 5(2) of the Interstate Commerce Act for approval of a merger of the two corporations. Acting under §5(7), the Commission initiated an investigation into the possibility of a violation of § 5(4), and the two proceedings were consolidated. After hearings and further proceedings, the Commission found that informal de facto management and control of the two corporations in a common interest had been unlawfully effectuated in violation of § 5(4); it denied approval of the merger; ordered the violation terminated; and ordered one of the individual appellants to divest himself of his stock in one of the corporations. A suit by appellants to enjoin and set aside the Commission's orders was dismissed by the District Court, on the ground that the orders were reasonable and supported by substantial evidence.Held: the order denying approval of the merger is affirmed; but the judgment is reversed in part, and the case is remanded for further proceedings. Pp. 371 U. S. 116-131.(a) On the record in this case, the Commission was justified in concluding that the two appellant common carriers by motor vehicle were in fact being managed and controlled in a common interest. Pp. 371 U. S. 117-122.(b) Section 5 (4) is not limited to the proscription of holding companies and other corporate devices; it applies to the accomplishment or effectuation of control or management in a common interest of two or more carriers, "however such result is attained," and the Commission's conclusion that the informal de facto relationships found to exist in this case resulted in control or management of the two corporations in a common interest which violated § 5(4) is sustained. Pp. 371 U. S. 122-126.(c) The Commission did not act arbitrarily in denying approval of the proposed merger because of the violation of § 5(4), and its order denying such approval is affirmed. Pp. 371 U. S. 127-129. Page 371 U. S. 116(d) Since the record contains no evidence that the parties were heard on the issue of divestiture or that proper standards were applied in determining that it was the appropriate remedy for the violation of § 5(4) found to exist in this case, the judgment of the District Court is reversed in part, and the case is remanded for further proceedings. Pp. 371 U. S. 129-131.196 F. Supp. 351 affirmed in part and reversed in part.

1981_80-1874

JUSTICE MARSHALL delivered the opinion of the Court.This case presents the question whether exhaustion of state administrative remedies is a prerequisite to an action under 42 U.S.C. § 1983 (1976 ed., Supp. IV). Petitioner Georgia Patsy filed this action, alleging that her employer, Florida International University (FIU), had denied her employment opportunities solely on the basis of her race and sex. By a divided vote, the United States Court of Appeals for the Fifth Circuit found that petitioner was required to exhaust "adequate and appropriate" administrative remedies, and remanded the case to the District Court to consider the adequacy of the administrative procedures. Patsy v. Florida International University, 634 F.2d 900 (1981) (en banc). We granted certiorari, 454 U.S. 813, and reverse the decision of the Court of Appeals.IPetitioner alleges that even though she is well qualified and has received uniformly excellent performance evaluations from her supervisors, she has been rejected for more than 13 positions at FIU. [Footnote 1] She further claims that FIU has unlawfully filled positions through intentional discrimination on the basis of race and sex. She seeks declaratory and injunctive relief or, in the alternative, damages. [Footnote 2] Page 457 U. S. 499The United States District Court for the Southern District of Florida granted respondent Board of Regents' motion to dismiss because petitioner had not exhausted available administrative remedies. On appeal, a panel of the Court of Appeals reversed, and remanded the case for further proceedings. Patsy v. Florida International University, 612 F.2d 946 (1980). The full court then granted respondent's petition for rehearing and vacated the panel decision.The Court of Appeals reviewed numerous opinions of this Court holding that exhaustion of administrative remedies was not required, and concluded that these cases did not preclude the application of a "flexible" exhaustion rule. 634 F.2d at 908. After canvassing the policy arguments in favor of an exhaustion requirement, the Court of Appeals decided that a § 1983 plaintiff could be required to exhaust administrative remedies if the following minimum conditions are met: (1) an orderly system of review or appeal is provided by statute or agency rule; (2) the agency can grant relief more or less commensurate with the claim; (3) relief is available within a reasonable period of time; (4) the procedures are fair, are not unduly burdensome, and are not used to harass or discourage those with legitimate claims; and (5) interim relief is available, in appropriate cases, to prevent irreparable injury and to preserve the plaintiff's rights during the administrative process. Where these minimum standards are met, a court must further consider the particular administrative scheme, the nature of the plaintiff's interest, and the values served by the exhaustion doctrine in order to determine whether exhaustion should be required. Id. at 912-913. The Court of Appeals remanded the case to the Page 457 U. S. 500 District Court to determine whether exhaustion would be appropriate in this case.IIThe question whether exhaustion of administrative remedies should ever be required in a 1983 action has prompted vigorous debate and disagreement. See, e.g., Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Cases in the Federal Courts, 92 Harv.L.Rev. 610 (1979); Note, 8 Ind.L.Rev. 565 (1975); Comment, 41 U.Chi.L.Rev. 537 (1974). Our resolution of this issue, however, is made much easier because we are not writing on a clean slate. This Court has addressed this issue, as well as related issues, on several prior occasions.Respondent suggests that our prior precedents do not control our decision today, arguing that these cases can be distinguished on their facts or that this Court did not "fully" consider the question whether exhaustion should be required. This contention need not detain us long. Beginning with McNeese v. Board of Education, 373 U. S. 668, 373 U. S. 671-673 (1963), we have on numerous occasions rejected the argument that a § 1983 action should be dismissed where the plaintiff has not exhausted state administrative remedies. See Barry v. Barchi, 443 U. S. 55, 443 U. S. 63, n. 10 (1979); Gibson v. Berryhill, 411 U. S. 564, 411 U. S. 574 (1973); Carter v. Stanton, 405 U. S. 669, 405 U. S. 671 (1972); Wilwording v. Swenson, 404 U. S. 249, 404 U. S. 251 (1971); Houghton v. Shafer, 392 U. S. 639, 392 U. S. 640 (1968); King v. Smith, 392 U. S. 309, 392 U. S. 312, n. 4 (1968); Damico v. California, 389 U. S. 416 (1967). Cf. Steffel v. Thompson, 415 U. S. 452, 415 U. S. 472-473 (1974) ("When federal claims are premised on [§ 1983] -- as they are here -- we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights"). Respondent may be correct in arguing that several of these decisions could have been based on traditional exceptions to the exhaustion doctrine. Nevertheless, this Court has stated Page 457 U. S. 501 categorically that exhaustion is not a prerequisite to an action under § 1983, and we have not deviated from that position in the 19 years since McNeese. Therefore, we do not address the question presented in this case as one of first impression.IIIRespondent argues that we should reconsider these decisions and adopt the Court of Appeals' exhaustion rule, which was based on McKart v. United States, 395 U. S. 185 (1969). This Court has never announced a definitive formula for determining whether prior decisions should be overruled or reconsidered. However, in Monell v. New York City Dept. of Social Services, 436 U. S. 658, 436 U. S. 695-701 (1978), we articulated four factors that should be considered. Two of these factors -- whether the decisions in question misconstrued the meaning of the statute as revealed in its legislative history and whether overruling these decisions would be inconsistent with more recent expressions of congressional intent -- are particularly relevant to our decision today. [Footnote 3] Both concern legislative purpose, which is of paramount importance in the exhaustion context because Congress is vested with the power to prescribe the basic procedural scheme under which claims may be heard in federal courts. Of course, courts play an important role in determining the limits of an exhaustion requirement, and may impose such a requirement even where Congress has not expressly so provided. However, the initial question whether exhaustion is required should be answered by reference to congressional intent; and a court Page 457 U. S. 502 should not defer the exercise of jurisdiction under a federal statute unless it is consistent with that intent. [Footnote 4] Therefore, in deciding whether we should reconsider our prior decisions and require exhaustion of state administrative remedies, we look to congressional intent as reflected in the legislative history of the predecessor to § 1983 and in recent congressional activity in this area.AIn determining whether our prior decisions misconstrued the meaning of § 1983, we begin with a review of the legislative history to § 1 of the Civil Rights Act of 1871, 17 Stat. 13, the precursor to § 1983. [Footnote 5] Although we recognize that the 1871 Congress did not expressly contemplate the exhaustion question, we believe that the tenor of the debates over § 1 supports our conclusion that exhaustion of administrative remedies in § 1983 actions should not be judicially imposed. Page 457 U. S. 503The Civil Rights Act of 1871, along with the Fourteenth Amendment it was enacted to enforce, were crucial ingredients in the basic alteration of our federal system accomplished during the Reconstruction Era. During that time, the Federal Government was clearly established as a guarantor of the basic federal rights of individuals against incursions by state power. As we recognized in Mitchum v. Foster, 407 U. S. 225, 407 U. S. 242 (1972) (quoting Ex parte Virginia, 100 U. S. 339, 100 U. S. 346 (1880)),"[t]he 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.'"At least three recurring themes in the debates over § 1 cast serious doubt on the suggestion that requiring exhaustion of state administrative remedies would be consistent with the intent of the 1871 Congress. First, in passing § 1, Congress assigned to the federal courts a paramount role in protecting constitutional rights. Representative Dawes expressed this view as follows:"The first remedy proposed by this bill is a resort to the courts of the United States. Is that a proper place in which to find redress for any such wrongs? If there be power to call into courts of the United States an offender against these rights, privileges, and immunities, and hold him to an account there, either civilly or criminally, for their infringement, I submit to the calm and candid judgment of every member of this House that there is no tribunal so fitted, where equal and exact justice would be more likely to be meted out in temper, in moderation, in severity, if need be, but always according to the law and the fact, as that great tribunal of the Constitution."Cong.Globe, 42d Cong., 1st Sess., 476 (1871) (hereinafter Globe). Page 457 U. S. 504 See also id. at 332 (remarks of Rep. Hoar); id. at 375 (remarks of Rep. Lowe); id. at 448-449 (remarks of Rep. Butler); id. at 459 (remarks of Rep. Coburn). [Footnote 6]The 1871 Congress intended § 1 to "throw open the doors of the United States courts" to individuals who were threatened with, or who had suffered, the deprivation of constitutional rights, id. at 376 (remarks of Rep. Lowe), and to provide these individuals immediate access to the federal courts notwithstanding any provision of state law to the contrary. For example, Senator Edmunds, who introduced the bill in the Senate, stated in his closing remarks that the bill was similar in principle to an earlier act upheld by this Court in Prigg v. Pennsylvania, 16 Pet. 539 (1842):"[T]he Supreme Court decided . . . that it was the solemn duty of Congress under the Constitution to secure to the individual, in spite of the State, or with its aid, as the case might be, precisely the rights that the Constitution gave him, and that there should be no intermediate authority to arrest or oppose the direct performance of this duty by Congress."Globe 692 (emphasis added). Similarly, Representative Elliott viewed the issue as whether"the Government of the United States [has] the right, under the Constitution, to protect a citizen in the exercise of his vested rights as an American citizen by . . . the assertion of immediate jurisdiction through its courts, without the appeal or agency of the State in which the citizen is domiciled. "Page 457 U. S. 505Id. at 389 (emphasis added). See, e.g., id. at 459 (remarks of Rep. Coburn); id. at 807 (remarks of Rep. Garfield); id. at 609 (remarks of Sen. Pool); Globe App. 141 (remarks of Rep. Shanks). [Footnote 7]A second theme in the debates further suggests that the 1871 Congress would not have wanted to impose an exhaustion requirement. A major factor motivating the expansion of federal jurisdiction through §§ 1 and 2 of the bill was the belief of the 1871 Congress that the state authorities had been unable or unwilling to protect the constitutional rights of individuals or to punish those who violated these rights. See, e.g., Globe 321 (remarks of Rep. Stoughton) ("The State authorities and local courts are unable or unwilling to check the evil or punish the criminals"); id. at 374 (remarks of Rep. Lowe) ("the local administrations have been found inadequate or unwilling to apply the proper corrective"); id. at 459 (remarks of Rep. Coburn); id. at 609 (remarks of Sen. Pool); id. at 687 (remarks of Sen. Shurz); id. at 691 (remarks of Sen. Edmunds); Globe App. 185 (remarks of Rep. Platt). [Footnote 8] Page 457 U. S. 506 Of primary importance to the exhaustion question was the mistrust that the 1871 Congress held for the factfinding processes of state institutions. See, e.g., Globe 320 (testimony of Hon. Thomas Settle, Justice of the North Carolina Supreme Court, before the House Judiciary Committee) ("The defect lies not so much with the courts as with the juries"); id. at 394 (remarks of Rep. Rainey); Globe App. 311 (remarks of Rep. Maynard). This Congress believed that federal courts would be less susceptible to local prejudice and to the existing defects in the factfinding processes of the state courts. See, e.g., Globe 322 (remarks of Rep. Stoughton); id. at 459 (remarks of Rep. Coburn). [Footnote 9] This perceived defect in the States' factfinding processes is particularly relevant to the question of exhaustion of administrative remedies: exhaustion rules are often applied in deference to the superior factfinding ability of the relevant administrative agency. See, e.g., McKart v. United States, 395 U.S. at 395 U. S. 192-196.A third feature of the debates relevant to the exhaustion question is the fact that many legislators interpreted the bill to provide dual or concurrent forums in the state and federal system, enabling the plaintiff to choose the forum in which to seek relief. Cf. Monroe v. Pape, 365 U. S. 167, 365 U. S. 183 (1961) ("The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked"). For example, Senator Thurman noted:"I object to [§ 1], first, because of the centralizing tendency of transferring all mere private suits, as well as Page 457 U. S. 507 the punishment of offenses, from the State into the Federal courts. I do not say that this section gives to the Federal courts exclusive jurisdiction. I do not suppose that it is so understood. It leaves it, I presume, in the option of the person who imagines himself to be injured to sue in the State court or in the Federal court, an option that he who has been the least injured, but who has some malice to gratify, will be the most likely to avail himself of."Globe App. 216. See also Globe 578, 694-695 (remarks of Sen. Edmunds); id. at 334 (remarks of Rep. Hoar); id. at 514 (remarks of Rep. Farnsworth); Globe App. 85 (remarks of Rep. Bingham) ("Admitting that the States have concurrent power to enforce the Constitution of the United States within their respective limits, must we wait for their action?").This legislative history supports the conclusion that our prior decisions, holding that exhaustion of state administrative remedies is not a prerequisite to an action under § 1983, did not misperceive the statutory intent: it seems fair to infer that the 1871 Congress did not intend that an individual be compelled in every case to exhaust state administrative remedies before filing an action under § 1 of the Civil Rights Act. We recognize, however, that drawing such a conclusion from this history alone is somewhat precarious: the 1871 Congress was not presented with the question of exhaustion of administrative remedies, nor was it aware of the potential role of state administrative agencies. Therefore, we do not rely exclusively on this legislative history in deciding the question presented here. Congress addressed the question of exhaustion under § 1983 when it recently enacted 42 U.S.C. § 1997e (1976 ed., Supp. IV). The legislative history of § 1997e provides strong evidence of congressional intent on this issue.BThe Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq. (1976 ed., Supp. IV), was enacted primarily Page 457 U. S. 508 to ensure that the United States Attorney General has "legal standing to enforce existing constitutional rights and Federal statutory rights of institutionalized persons." H.R.Conf.Rep. No. 96-897, p. 9 (1980) (Conf. Rep.). In § 1997e, Congress also created a specific, limited exhaustion requirement for adult prisoners bringing actions pursuant to § 1983. Section 1997e and its legislative history demonstrate that Congress understood that exhaustion is not generally required in § 1983 actions, and that it decided to carve out only a narrow exception to this rule. A judicially imposed exhaustion requirement would be inconsistent with Congress' decision to adopt § 1997e, and would usurp policy judgments that Congress has reserved for itself.In considering whether an exhaustion requirement should be incorporated into the bill, Congress clearly expressed its belief that a decision to require exhaustion for certain § 1983 actions would work a change in the law. Witnesses testifying before the Subcommittee that drafted the bill discussed the decisions of this Court holding that exhaustion was not required. See, e.g., Hearings on H.R. 2439 and H.R. 5791 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 95th Cong., 1st Sess., 20 (1977) (1977 Hearings); id. at 47, 69, 77, 323; Hearings on H.R. 10 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 96th Cong., 1st Sess., 48 (1979) (1979 Hearings). During these hearings, Representative Kastenmeier, Chairman of this Subcommittee, stated:"Another thing that I think requires some discussion within the committee, and is a point of argument, . . . is whether there ought to be an exhaustion of remedies requirement."". . . In fact, I think it has been pointed out that, if [we] were to require it, particularly in 1983, that would constitute regression from the current state of the law. It would set the law back, because presently it is clearly Page 457 U. S. 509 held, that is, the Supreme Court has held, that, in 1983 civil rights suits, the litigant need not necessarily fully exhaust State remedies."1977 Hearings 57-58. See also id. at 272 (remarks of Rep. Drinan) (Representative Railsback "grounds his bill on doing something which the Supreme Court has consistently refused to do, namely require exhaustion of remedies"); 1979 Hearings 26 (remarks of Rep. Kastenmeier) (adopting § 1997e "was resisted as a possible encroachment on civil liberties; that is to say, in the free, unimpeded resort to 1983").The debates over adopting an exhaustion requirement also reflect this understanding. See, e.g., 124 Cong.Rec. 11988 (1978) (remarks of Rep. Volkmer and Rep. Kastenmeier); id. at 15445 (remarks of Rep. Ertel); id. at 23180 (remarks of Rep. Wiggins) ("it is settled law that an exhaustion of administrative remedies is not required as a precondition of maintaining a 1983 action"); 125 Cong.Rec. 12496 (1979) (remarks of Rep. Butler) ("Under existing law, there is no requirement that a complainant first ask the State prison system to help him"). With the understanding that exhaustion generally is not required, Congress decided to adopt the limited exhaustion requirement of § 1997e in order to relieve the burden on the federal courts by diverting certain prisoner petitions back through state and local institutions, and also to encourage the States to develop appropriate grievance procedures. See, e.g., Conf.Rep. 9; 124 Cong.Rec. 11976 (1978) (remarks of Rep. Kastenmeier); id. at 11976, 11983 (remarks of Rep. Railsback); id. at 15442 (remarks of Rep. Kastenmeier); id. at 15445 (remarks of Rep. Ertel); id. at 23176 (remarks of Rep. Kastenmeier); id. at 23179-23180 (remarks of Rep. Butler); id. at 23180 (remarks of Rep. Ertel). Implicit in this decision is Congress' conclusion that the no-exhaustion rule should be left standing with respect to other § 1983 suits.A judicially imposed exhaustion requirement would also be inconsistent with the extraordinarily detailed exhaustion Page 457 U. S. 510 scheme embodied in § 1997e. Section 1997e carves out a narrow exception to the general no-exhaustion rule to govern certain prisoner claims, and establishes a procedure to ensure that the administrative remedies are adequate and effective. The exhaustion requirement is expressly limited to § 1983 actions brought by an adult convicted of a crime. 42 U.S.C. § 1997e(a)(1) (1976 ed., Supp. IV). [Footnote 10] Section 1997e(b)(1) instructs the Attorney General to "promulgate minimum standards for the development and implementation of a plain, speedy, and effective system" of administrative remedies, and § 1997e(b)(2) specifies certain minimum standards that must be included. [Footnote 11] A court may require exhaustion of administrative remedies only if"the Attorney General has certified or the court has determined that such administrative Page 457 U. S. 511 remedies are in substantial compliance with the minimum acceptable standards promulgated under subsection (b)."§ 1997e(a)(2). Before exhaustion may be required, the court must further conclude that it "would be appropriate and in the interests of justice." § 1997e(a)(1). [Footnote 12] Finally, in those § 1983 actions meeting all the statutory requirements for exhaustion, the district court may not dismiss the case, but may only "continue such case for a period of not to exceed ninety days in order to require exhaustion." Ibid. This detailed scheme is inconsistent with discretion to impose, on an ad hoc basis, a judicially developed exhaustion rule in other cases.Congress hoped that § 1997e would improve prison conditions by stimulating the development of successful grievance mechanisms. See, e.g., Conf. Rep. 9; H.R.Rep. No. 9 80, p. 4 (1979); 1979 Hearings 4 (remarks of Rep. Railsback); 124 Cong.Rec. 11976 (1978) (remarks of Rep. Railsback); 125 Cong.Rec. 12492 (1979) (remarks of Rep. Drinan); 126 Cong.Rec. 10780 (1980) (remarks of Rep. Kastenmeier). To further this purpose, Congress provided for the deferral of the exercise of federal jurisdiction over certain § 1983 claims only on the condition that the state prisons develop adequate procedures. This purpose would be frustrated by judicial discretion to impose exhaustion generally: the States would have no incentive to adopt grievance Page 457 U. S. 512 procedures capable of certification, because prisoner 1983 cases could be diverted to state administrative remedies in any event.In sum, the exhaustion provisions of the Act make sense, and are not superfluous, only if exhaustion could not be required before its enactment and if Congress intended to carve out a narrow exception to this no-exhaustion rule. The legislative history of § 1997e demonstrates that Congress has taken the approach of carving out specific exceptions to the general rule that federal courts cannot require exhaustion under § 1983. It is not our province to alter the balance struck by Congress in establishing the procedural framework for bringing actions under § 1983.CRespondent and the Court of Appeals argue that exhaustion of administrative remedies should be required because it would further various policies. They argue that an exhaustion requirement would lessen the perceived burden that § 1983 actions impose on federal courts; [Footnote 13] would further the goal of comity and improve federal-state relations by postponing federal court review until after the state administrative agency had passed on the issue; [Footnote 14] and would enable the agency, which presumably has expertise in the area at issue, to enlighten the federal court's ultimate decision. Page 457 U. S. 513As we noted earlier, policy considerations alone cannot justify judicially imposed exhaustion unless exhaustion is consistent with congressional intent. See supra at 457 U. S. 501-502, and n. 4. Furthermore, as the debates over incorporating the exhaustion requirement in § 1997e demonstrate, the relevant policy considerations do not invariably point in one direction, and there is vehement disagreement over the validity of the assumptions underlying many of them. [Footnote 15] The very difficulty of these policy considerations, and Congress' superior institutional competence to pursue this debate, suggest that legislative not judicial solutions are preferable. Cf. Diamond v. Chakrabarty, 447 U. S. 303, 447 U. S. 317 (1980); Steelworkers v. Bouligny, Inc., 382 U. S. 145, 382 U. S. 150, 153 (1965).Beyond the policy issues that must be resolved in deciding whether to require exhaustion, there are equally difficult questions concerning the design and scope of an exhaustion requirement. These questions include how to define those categories of § 1983 claims in which exhaustion might be desirable; Page 457 U. S. 514 how to unify and centralize the standards for judging the kinds of administrative procedures that should be exhausted; [Footnote 16] what tolling requirements and time limitations should be adopted; [Footnote 17] what is the res judicata and collateral estoppel effect of particular administrative determinations; what consequences should attach to the failure to comply with procedural requirements of administrative proceedings; and whether federal courts could grant necessary interim injunctive relief and hold the action pending exhaustion, or proceed to judgment without requiring exhaustion even though exhaustion might otherwise be required, where the relevant administrative agency is either powerless or not inclined to grant such interim relief. These and similar questions might be answered swiftly and surely by legislation, but would create costly, remedy-delaying, and court-burdening litigation if answered incrementally by the judiciary in the context of diverse constitutional claims relating to thousands of different state agencies. [Footnote 18] Page 457 U. S. 515The very variety of claims, claimants, and state agencies involved in § 1983 cases argues for congressional consideration of the myriad of policy considerations, and may explain why Congress, in deciding whether to require exhaustion in certain § 1983 actions brought by adult prisoners, carved out such a narrow, detailed exception to the no-exhaustion rule. After full debate and consideration of the various policy arguments, Congress adopted § 1997e, taking the largest class of § 1983 actions and constructing an exhaustion requirement that differs substantially from the McKart-type standard urged by respondent and adopted by the Court of Appeals. See n 18, supra. It is not for us to say whether Congress will or should create a similar scheme for other categories of § 1983 claims or whether Congress will or should adopt an altogether different exhaustion requirement for nonprisoner § 1983 claims. [Footnote 19] Page 457 U. S. 516IVBased on the legislative histories of both § 1983 and § 1997e, we conclude that exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983. We decline to overturn our prior decisions holding that such exhaustion is not required. The decision 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 CourtPatsy v. Board of Regents of State of Florida, 457 U.S. 496 (1982)Patsy v. Board of Regents of State of FloridaNo. 80-1874Argued March 2, 1982Decided June 21, 1982457 U.S. 496SyllabusPetitioner filed an action in Federal District Court under 42 U.S.C. § 1983 for declaratory or injunctive relief or damages, alleging that respondent employer had denied her employment opportunities solely on the basis of her race and sex. The District Court granted respondent's motion to dismiss because petitioner had not exhausted available state administrative remedies. The Court of Appeals vacated, holding that a § 1983 plaintiff could be required to exhaust administrative remedies if certain specified conditions were met, and remanded the case to the District Court to determine whether exhaustion would be appropriate in the instant case.Held: Exhaustion of state administrative remedies is not a prerequisite to an action under § 1983. Pp. 457 U. S. 500-516.(a) This conclusion is supported by the legislative histories of both § 1983 and 42 U.S.C. § 1997e (1976 ed., Supp. IV), which carves out a narrow exception to the general no-exhaustion rule established in this Court's prior decisions by creating a specific, limited exhaustion requirement for adult prisoners bringing actions pursuant to § 1983. A judicially imposed exhaustion requirement in cases other than adult prisoners' cases would be inconsistent with Congress' decision to adopt § 1997e, would usurp policy judgments that Congress has reserved for itself, and would also be inconsistent with the detailed exhaustion scheme embodied in § 1997e. Pp. 457 U. S. 502-512.(b) Even if, as respondent argues, an exhaustion requirement would lessen the burden that § 1983 actions impose on federal courts, would further the goal of comity and improve federal-state relations, and would enable the state agency to enlighten the federal court's ultimate decision, these are policy considerations that alone cannot justify judicially imposed exhaustion unless exhaustion is consistent with congressional intent. Moreover, difficult questions concerning the design and scope of an exhaustion requirement, which might be answered swiftly and surely by legislation, would create costly, remedy-delaying and court-burdening litigation if answered by the judiciary in the context of diverse constitutional claims relating to thousands of different state agencies. Pp. 457 U. S. 512-515.634 F.2d 900, reversed and remanded. Page 457 U. S. 497MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, BLACKMUN, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined, and in all but Part III-B of which WHITE, J., joined. O'CONNOR, J., filed a concurring opinion, in which REHNQUIST, J., joined, post, p. 457 U. S. 516. WHITE, J., filed an opinion concurring in part, post, p. 457 U. S. 517. POWELL, J., filed a dissenting opinion, in Part II of which BURGER, C.J., joined, post, p. 457 U. S. 519. Page 457 U. S. 498

1967_58

MR. JUSTICE BRENNAN delivered the opinion of the Court.This is a companion case to No. 57, Wirtz v. Local 57, Glass Bottle Blowers Assn., ante, p. 389 U. S. 463. Petitioner, the Secretary of Labor, filed the action in the District Court for the Northern District of Ohio, Eastern Division, under § 402(b) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 482(b). His complaint challenged the validity of a general election of union officers conducted by the respondent Local Union on June 8, 1963, and the validity of a runoff election for the single office of Business Representative made necessary by a tie vote for that office at the June 8 election. The complaint alleged, in part, violation of § 401(e), 29 U.S.C. § 481(e), in permitting members not "in good standing" to vote and to run for office on both occasions. However, the only allegation that internal union remedies had been exhausted, as is required by § 402(a), was in regard to the runoff election of July 13; the complaint stated that the loser in the runoff election, Page 389 U. S. 479 one Dial, protested and appealed to the General Executive Board of the International Union concerning the conduct of that election and, having received a final denial of his protest by the General Executive Board, filed a timely complaint with the Secretary. The District Court held that the omission in the complaint of an allegation that a member complained internally about the conduct of the June 8 general election was fatal to the Secretary's action addressed to that election, and dismissed that part of the complaint. 231 F. Supp. 590. The Secretary appealed to the Court of Appeals for the Sixth Circuit. During pendency of the appeal, respondent Local conducted its next regular triennial election of officers. The Court of Appeals thereupon vacated the judgment of dismissal and remanded to the District Court with instructions that the portion of the Secretary's complaint dealing with the June 8 election be dismissed as moot. 375 F.2d 921. [Footnote 1] We granted certiorari. 387 U.S. 904. In light of our decision today in Wirtz v. Local 153, supra, the action of the Court of Appeals must be reversed; we there held that". . . the fact that the union has already conducted another unsupervised election does not deprive the Secretary of his right to a court order declaring the challenged election void and directing that a new election be conducted under his supervision."At 389 U. S. 475-476.In the circumstances, we might remand to the Court of Appeals to decide the merits of the Secretary's appeal. Page 389 U. S. 480 The issue on the merits is whether the District Court erred in holding that the Secretary in his suit may not challenge the alleged violations affecting the general election of June 8 because Dial specifically challenged only the runoff election of July 13 with respect to the office of Business Representative. The merits of this question have been fully briefed and argued in this Court, and the underlying issue of statutory construction has already been the subject of several and conflicting rulings by various federal courts. [Footnote 2] The interests of judicial economy are therefore best served if we proceed to resolve this important question now.Respondent Local is governed by the Constitution and the Uniform Local Union Constitution of the Laborers' International Union of North America. Under the Uniform Local Union Constitution as it existed during the period relevant here, a member's good standing was lost by failure to pay membership dues within a specified grace period, and the member was automatically suspended without notice and with loss of all membership rights except the right to readmission (but as a new member) upon payment of a fee. The eligibility of voters and candidates in both elections in this case was determined by reference to a report to the International Page 389 U. S. 481 Union of the names of members for whom a per capita tax had been paid. This report included some 50 to 75 members who were delinquent in the payment of their Local dues and had therefore actually lost good standing under the provisions of the Uniform Local Union Constitution. The cause of this patent disregard of the Local's own constitution was the practice of its Secretary-Treasurer of paying from Local funds the per capita tax of delinquent members selected by him, thus making it appear on the per capita tax report that those members had met their dues obligations when, in fact, they had not. [Footnote 3] The Secretary's investigation disclosed that approximately 50 of the members voting in the June 8 general election and approximately 60 voting in the July 13 runoff election were ineligible to vote, and that 16 of the 27 candidates for office in the general election, including Dial's opponent who ultimately won the runoff, were ineligible for the same reason.The question is one of statutory construction, and must be answered by inference, since there is lacking an explicit provision regarding the permissible scope of the Secretary's complaint. On the facts of this case, we think the Secretary is entitled to maintain his action challenging the June 8 general election because respondent union had fair notice from the violation charged by Dial in his protest of the runoff election that the same unlawful conduct probably occurred at the earlier election as well. [Footnote 4] Page 389 U. S. 482 We therefore need not consider, and intimate no view on, the merits of the Secretary's argument that a member's protest triggers a § 402 enforcement action in which the Secretary would be permitted to file suit challenging any violation of § 401 discovered in his investigation of the member's complaint.We reject the narrow construction adopted by the District Court and supported by respondent limiting the Secretary's complaint solely to the allegations made in the union member's initial complaint. Such a severe restriction upon the Secretary's powers should not be read into the statute without a clear indication of congressional intent to that effect. Neither the language of the statute nor its legislative history provides such an indication; indeed, the indications are quite clearly to the contrary.First, it is most improbable that Congress deliberately settled exclusive enforcement jurisdiction on the Secretary and granted him broad investigative powers to discharge his responsibilities, [Footnote 5] yet intended the shape of the enforcement action to be immutably fixed by the artfulness of a layman's complaint, which often must be based on incomplete information. The expertise and resources of the Labor Department were surely meant to have a broader play. [Footnote 6] Second, so to constrict the Secretary Page 389 U. S. 483 would be inconsistent with his vital role, which we emphasize today in Wirtz v. Local 153, supra, in protecting the public interest bound up in Title IV. The Act was not designed merely to protect the right of a union member to run for a particular union office in a particular election. Title IV's special function in furthering the general goals of the LMRDA is to insure free and democratic union elections, the regulations of the union electoral process enacted in the Title having been regarded as necessary protections of the public interest as well as of the rights and interests of union members.We can only conclude, therefore, that it would be anomalous to limit the reach of the Secretary's cause of action by the specifies of the union member's complaint. In an analogous context, we rejected such a limiting construction of the National Labor Relations Board's authority to fashion unfair labor practice complaints. NLRB v. Fant Milling Co., 360 U. S. 301, 360 U. S. 306-309; National Licorice Co. v. NLRB, 309 U. S. 350, 309 U. S. 369. [Footnote 7]Respondent argues, however, that the spirit and letter of the statutory requirement that the member first exhaust his internal union remedies before the Secretary may intervene compels the suggested limitation. It contends that even to allow the Secretary to challenge the earlier election for the same violation established as having occurred in the runoff election would be inconsistent with Congress' intention to allow unions first opportunity to redress violations of § 401. This argument is not persuasive. Page 389 U. S. 484It is true that the exhaustion requirement was regarded by Congress as critical to the statute's objective of fostering union self-government. By channeling members through the internal appellate processes, Congress hoped to accustom members to utilizing the remedies made available within their own organization; at the same time, however, unions were expected to provide responsible and responsive procedures for investigating and redressing members' election grievances. These intertwined objectives are not disserved, but furthered, by permitting the Secretary to include in his complaint at least any § 401 violation he has discovered which the union had a fair opportunity to consider and redress in connection with a member's initial complaint.Here, the Secretary sought to challenge the June 8 general election, alleging that the same unlawful conduct occurring in the runoff affected the general election held only five weeks before. Dial's complaint had disclosed the fraudulent practice with respect to the runoff, and he was apparently able to prove at the hearing before the General Executive Board that that practice enabled nine ineligible members to vote in the runoff election; but his protest was denied because he had lost by 19 votes. The Secretary's investigation, however, discovered that a much larger number of ineligible members had been permitted to vote in that runoff election, and that the Secretary-Treasurer responsible for the falsification prepared the per capita tax reports used to determine the eligibility of voters and candidates at both elections. Yet in the face of Dial's evidence raising the almost overwhelming probability that the misconduct affecting the runoff election had also occurred at the June 8 election, the union insists that it was under no duty to expand its inquiry beyond the specific challenge to the runoff election made by Dial. Surely this is not the responsible union self-government contemplated by Congress in allowing the Page 389 U. S. 485 unions great latitude in resolving their own internal controversies. In default of respondent's action on a violation which it had a fair opportunity to consider and resolve in connection with Dial's protest, the Secretary was entitled to seek relief from the court with respect to the June 8 election. Again, Congress, having given the Secretary a broad investigative power, cannot have intended that his right to relief be defined by a complaining member's ignorance of the law or the facts or by the artlessness of the member's protest.Because the complaint as to the June 8 election was dismissed for deficiency in pleading, the factual allegation have not been tried. We therefore reverse the judgment of the Court of Appeals and remand to that court with direction to enter a judgment reversing the District Court's judgment of dismissal and directing further proceedings by that court consistent with this opinion.It is so ordered

U.S. Supreme CourtWirtz v. Laborers' Union, 389 U.S. 477 (1968)Wirtz v. Local Union No. 125, Laborers'International Union of North America, AFL-CIONo. 58Argued November 8-9, 1967Decided January 15, 1968389 U.S. 477SyllabusIn this companion case to Wirtz v. Local 153, Glass Bottle Blowers Assn., ante, p. 389 U. S. 463, the Secretary of Labor sued under § 402(b) of the Labor-Management Reporting and Disclosure Act to invalidate a general election held by respondent in 1963 and the runoff election for one office held five weeks later, alleging, in part violations of § 401(e) in permitting members not "in good standing" to vote and be candidates in both elections. The Secretary's investigation, following a complaint to him about the runoff election by a member of respondent who had exhausted his internal remedies, revealed that a large number of members ineligible under respondent's constitution were allowed to vote in both the general and runoff elections through the fraudulent practice of a union officer, and that 16 of 27 candidates in the general election were similarly ineligible. Finding that the complaint failed to allege that a member of respondent had "complained internally" about the conduct of the general election and that the member's challenge of the runoff election could not support the Secretary's challenge of the general election, the District Court dismissed the part of the complaint relating to the general election. During the pendency of the Secretary's appeal, the respondent held its next regular election of officers, whereupon the Court of Appeals vacated the judgment of dismissal and directed the District Court to dismiss as moot the portion of the Secretary's complaint dealing with the 1963 general election.Held:1. The Secretary is not deprived of his right to challenge the 1963 general election because of the subsequent unsupervised general election. Wirtz v. Local 153, Glass Bottle Blowers Assn., supra, followed. P. 389 U. S. 479.2. On the facts of this case, where respondent had fair notice from the violation charged by the member with respect to the runoff election that the same unlawful conduct probably occurred Page 389 U. S. 478 at the earlier general election, the Secretary is entitled to maintain his action challenging the general election. Pp. 389 U. S. 481-485.375 F.2d 921, reversed and remanded.

1995_94-8769

for a separate offense and must be vacated under Ball, 470 U. S., at 864. P.307.40 F.3d 879, reversed and remanded.STEVENS, J., delivered the opinion for a unanimous Court.Barry Levenstam argued the cause for petitioner. With him on the briefs were Jerold S. Solovy, Avidan J. Stern, and Jacob 1. Corn?James A. Feldman argued the cause for the United States.With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and Richard A. Friedman.JUSTICE STEVENS delivered the opinion of the Court.A jury found petitioner guilty of participating in a conspiracy to distribute controlled substances in violation of 84 Stat. 1265, as amended, 21 U. S. C. § 846, and of conducting a continuing criminal enterprise (CCE) in violation of § 848. The "in concert" element of his CCE offense was based on the same agreement as the § 846 conspiracy. The question presented is whether it was therefore improper for the District Court to sentence him to concurrent life sentences on the two counts.IPetitioner organized and supervised a criminal enterprise that distributed cocaine in Warren County, Illinois, from 1988 until December 1990, when he was arrested by federal agents. He was charged with several offenses, of which only Count One, the CCE charge, and Count Two, the conspiracy charge, are relevant to the issue before us.Count One alleged that during the period between early 1988 and late 1990, petitioner violated § 8481 by engaging in1 Section 848(c) provides:"(c) 'Continuing criminal enterprise' defined"For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if-295a CCE that consisted of a series of unlawful acts involving the distribution of cocaine.2 The count alleged that these actions were undertaken "in concert with at least five (5) other persons," that petitioner supervised those other persons, and that he obtained substantial income from the continuing series of violations. App. 2-3.Count Two separately alleged that during the same period, petitioner violated 21 U. s. C. § 846 3 by conspiring with four codefendants and others to engage in the unlawful distribution of cocaine. The count alleged that each of the conspirators had furthered the conspiracy by performing an overt act involving the delivery, purchase, or distribution of cocaine. App.3-5.After a 9-day trial, a jury found petitioner guilty on all counts. The trial court entered judgment of conviction on both Count One and Count Two and imposed a sentence of life imprisonment without possible release on each count, the sentences to be served concurrently. Id., at 8-10. Pursuant to 18 U. s. C. § 3013, petitioner was also ordered to pay a special assessment of $50 on each count."(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and"(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter-"(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and"(B) from which such person obtains substantial income or resources." 21 U. S. C. § 848(c).2 The alleged unlawful acts included a series of cocaine transactions in violation of § 841 (a) and the same conspiracy in violation of § 846 that was charged in Count Two.3 "§ 846. Attempt and conspiracy"Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 21 U. S. C. § 846.296On appeal, petitioner contended in a pro se supplemental brief that even though the life sentences were concurrent, entering both convictions and sentences impermissibly punished him twice for the same offense. The Court of Appeals for the Seventh Circuit accepted the premise of his argument, namely, that the conspiracy charge was a lesser included offense of the CCE charge. 40 F.3d 879, 886 (1994). The Court of Appeals nonetheless affirmed his convictions and sentences. Relying on its earlier decision in United States v. Bond, 847 F.2d 1233, 1238 (1988), and our decision in Jeffers v. United States, 432 U. S. 137 (1977), it held that convictions and concurrent sentences may be imposed for conspiracy and CCE, "provided the cumulative punishment does not exceed the maximum under the CCE act." 40The decision of the Seventh Circuit is at odds with the practice of other Circuits. Most federal courts that have confronted the question hold that only one judgment should be entered when a defendant is found guilty on both a CCE count and a conspiracy count based on the same agreements.4 The Second and Third Circuits have adopted an intermediate position, allowing judgment to be entered on both counts but permitting only one sentence rather than the concurrent sen-4 See, e. g., United States v. Rivera-Martinez, 931 F.2d 148, 153 (CA1), eert. denied, 502 U. S. 862 (1991); United States v. Butler, 885 F.2d 195, 202 (CA4 1989); United States v. Neal, 27 F.3d 1035, 1054 (CA5 1994), eert. denied, 513 U. S. 1179 (1995); United States v. Paulino, 935 F.2d 739, 751 (CA6 1991), eert. denied, 502 U. S. 1036 (1992); United States v. Possick, 849 F.2d 332, 341 (CA8 1988); United States v. Hernandez-Escarsega, 886 F.2d 1560, 1582 (CA9 1989), eert. denied, 497 U. S. 1003 (1990); United States v. Stallings, 810 F.2d 973, 976 (CAlO 1989); United States v. Cruz, 805 F.2d 1464, 1479 (CA111986), eert. denied, 481 U. S. 1006 (1987); United States v. Anderson, 39 F.3d 331, 357 (CADC 1994), rev'd on other grounds, 59 F.3d 1323 (CADC 1995) (en bane).297tences allowed in the Seventh Circuit.5 We granted certiorari to resolve the conflict. 515 U. S. 1157 (1995).IICourts may not "prescrib[e] greater punishment than the legislature intended." Missouri v. Hunter, 459 U. S. 359, 366 (1983); Brown v. Ohio, 432 U. S. 161, 165 (1977). In accord with principles rooted in common law and constitutional jurisprudence, see Ex parte Lange, 18 Wall. 163, 168-170 (1874), we presume that "where two statutory provisions proscribe the 'same offense,'" a legislature does not intend to impose two punishments for that offense. Whalen v. United States, 445 U. S. 684, 691-692 (1980); Ball v. United States, 470 U. S. 856, 861 (1985).For over half a century we have determined whether a defendant has been punished twice for the "same offense" by applying the rule set forth in Blockburger v. United States, 284 U. S. 299, 304 (1932). If "the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Ibid. In subsequent applications of the test, we have often concluded that two different statutes define the "same offense," typically because one is a lesser included offense of the other. 65 United States v. Aiello, 771 F.2d 621, 634 (CA2 1985); United States v. Fernandez, 916 F.2d 125, 128-129 (CA3 1990), cert. denied, 500 U. S. 948 (1991).6 See, e. g., Ball v. United States, 470 U. S. 856, 861-864 (1985) (concluding that multiple prosecutions were barred because statutes directed at "receipt" and "possession" of a firearm amounted to the "same offense," in that proof of receipt "necessarily" included proof of possession); Whalen v. United States, 445 U. S. 684, 691-695 (1980) (concluding that two punishments could not be imposed because rape and felony murder predicated on the rape were the "same offense"); Brown v. Ohio, 432 U. S. 161, 167-168 (1977) (in multiple proceedings context, applying Blockburger298In this case it is perfectly clear that the eeE offense requires proof of a number of elements that need not be established in a conspiracy case.7 The Blockburger test requires us to consider whether the converse is also true-whether the § 846 conspiracy offense requires proof of any element that is not a part of the eeE offense. That question could be answered affirmatively only by assuming that while the § 846 conspiracy requires proof of an actual agreement among the parties, the "in concert" element of the eeE offense might be satisfied by something less.The Government advanced this precise argument in Jeffers v. United States, 432 U. S. 137 (1977),8 but it managed to persuade only one Justice. Id., at 158 (White, J., concurring). The position was rejected, to varying degrees, by thev. United States, 284 U. S. 299 (1932), to confirm state-court conclusion that offense of "joyriding" was a lesser included offense of auto theft).7 The defendant must, for example, commit a series of substantive violations, be a leader of the criminal enterprise, and derive substantial income from it. The Government need not prove any of those elements to establish a conspiracy in violation of § 846. Even the "in concert" element of the CCE offense is broader than any requirement in § 846 because it requires at least five participants, while a conspiracy requires only two.S In Jeffers, we considered whether the Government could prosecute the defendant under § 848 even though he had previously been convicted of § 846 conspiracy on the basis of the same agreements. The Government argued that the multiple prosecution was permissible because the crimes were not the "same offense." "The Government's position is premised on its contention that agreement is not an essential element of the § 848 offense, despite the presence in § 848(b)(2)(A) of the phrase 'in concert with.' If five 'innocent dupes' each separately acted 'in concert with' the ringleader of the continuing criminal enterprise, the Government asserts, the statutory requirement would be satisfied. Brief for United States 23." 432 U. S., at 147. The Government relied on Iannelli v. United States, 420 U. S. 770 (1975), in which we construed 18 U. S. C. § 1955 as not requiring proof of conspiracy. As Justice Blaclrmun pointed out, however, the language of § 1955 was significantly different from § 848 in that it omitted the words "in concert" and left open "the possibility that the five persons 'involved' in the gambling operation might not be acting together." 432 U. S., at 147-148.299other eight. The four dissenters adopted, without comment, the proposition that conspiracy was a lesser included offense of eeE. See id., at 158, 159, n. 5. The remaining Justices joined Justice Blackmun's plurality opinion which, while declining to hold that conspiracy was a lesser included offense,9 nonetheless explained why the Government's argument was inconsistent with the statute's text, with the way the words "in concert" have been used in other statutes, and with the legislative history of this statute.lO Based on its understanding of the "more likely" interpretation of § 848, the plurality assumed, arguendo, "that § 848 does require proof of9 The plurality did not need to hold that conspiracy was a lesser included offense because it found that even if it was, the petitioner waived whatever right he may have had to object to the second prosecution under § 848 when he opposed the Government's motion, brought before the first trial, to consolidate the proceedings. Id., at 149-150, 153-154.10 The language of § 848 "restricts the definition of the crime to a continuing series of violations undertaken by the accused 'in concert with five or more other persons.''' Id., at 148. As a result, "a conviction [under § 848] would be impossible unless concerted activity were present .... Even if § 848 were read to require individual agreements between the leader ... and each of the other five necessary participants, enough would be shown to prove a conspiracy." Ibid.Furthermore, "[w]hen the phrase 'in concert' has been used in other statutes, it has generally connoted cooperative action and agreement .... This suggests that Congress intended the same words to have the same meaning in § 848 .... Since the word 'concert' commonly signifies agreement of two or more persons in a common plan or enterprise, a clearly articulated statement from Congress to the contrary would be necessary before that meaning should be abandoned." Id., at 149, n. 14 (citations omitted); see 3 Oxford English Dictionary 658 (2d ed. 1989) (defining "concert" as "[a]greement of two or more persons or parties in a plan, design, or enterprise; union formed by such mutual agreement"; "esp[ecially] in phrase in concert"); Webster's Third New International Dictionary 470 (1981) (defining "concert" as "agreement in a design or plan: union formed by mutual communication of opinions and views: accordance in a scheme"). Thus, "[i]n the absence of any indication from the legislative history or elsewhere to the contrary, the far more likely explanation is that Congress intended the word 'concert' to have its common meaning of agreement in a design or plan." Jeffers, 432 U. S., at 148-149.300an agreement among the persons involved in the continuing criminal enterprise. So construed, § 846 is a lesser included offense of § 848, because § 848 requires proof of every fact necessary to show a violation under § 846 as well as proof of several additional elements." Id., at 149-150.In the years since Jeffers was decided, the Courts of Appeals have also consistently rejected the Government's interpretation of the "in concert" language of § 848; they have concluded, without exception, that conspiracy is a lesser included offense of CCE.ll We think it is appropriate now to resolve the point definitively: For the reasons set forth in Jeffers, and particularly because the plain meaning of the phrase "in concert" signifies mutual agreement in a common plan or enterprise, we hold that this element of the CCE offense requires proof of a conspiracy that would also violate § 846. Because § 846 does not require proof of any fact that is not also a part of the CCE offense, a straightforward application of the Blockburger test leads to the conclusion that conspiracy as defined in § 846 does not define a different offense from the CCE offense defined in § 848. Furthermore, since the latter offense is the more serious of the two, and because only one of its elements is necessary to prove a § 846 conspiracy, it is appropriate to characterize § 846 as a lesser included offense of § 848.1211 See, e. g., Rivera-Martinez, 931 F. 2d, at 152 (CA1); Aiello, 771 F. 2d, at 633 (CA2); Neal, 27 F. 3d, at 1054 (CA5); United States v. Chambers, 944 F.2d 1253, 1268 (CA6 1991), cert. denied, 502 U. S. 1112, sub nom. Lucas v. United States, 503 U. S. 989 (1992); 40 F.3d 879, 886 (CA7 1994) (case below); Possick, 849 F. 2d, at 341 (CA8); Hernandez-Escarsega, 886 F. 2d, at 1582 (CA9); Stallings, 810 F. 2d, at 975 (CAlO); United States v. Graziano, 710 F.2d 691, 699 (CAll 1983).12 Garrett v. United States, 471 U. S. 773, 794-795 (1985), is not to the contrary. There, we affirmed the defendant's prosecution for a CCE violation even though he had previously pleaded guilty to a predicate crime of importing marijuana. Ibid. That holding, however, merely adhered to our understanding that legislatures have traditionally perceived a quali-301IIIThe Government contends that even if conspiracy is a lesser included offense of CCE, the resulting presumption against multiple punishments does not invalidate either of petitioner's convictions. The second conviction, the Government first argues, may not amount to a punishment at all.We begin by noting that 18 U. S. C. § 3013 requires a federal district court to impose a $50 special assessment for every conviction, and that such an assessment was imposed on both convictions in this case. As long as § 3013 stands, a second conviction will amount to a second punishment. Cf. Ray v. United States, 481 U. S. 736, 737 (1987) (per curiam) (presence of $50 assessment precludes application of "concurrent sentence doctrine"). The Government urges us not to rely on the assessment, however, pointing out that petitioner did not challenge it below, and noting that the question presented "presupposes" fully concurrent sentences. Brief for United States 7, n. 1.If we ignore the assessment as the Government requests, the force of its argument would nonetheless be limited by our decision in Ball v. United States, 470 U. S. 856 (1985). There, we concluded that Congress did not intend to allow punishment for both illegally "receiving" and illegally "possessing" a firearm. Id., at 861-864. In light of that conclusion, we held that "the only remedy consistent with the con-tative difference between conspiracy-like crimes and the substantive offenses upon which they are predicated. See, e. g., United States v. Felix, 503 U. S. 378, 389-390 (1992) (allowing prosecution for conspiracy after petitioner was convicted of underlying substantive offense, and citing Garrett as a similar case). No such difference is present here. In contrast to the crimes involved in Garrett, this case involves two conspiracy-like offenses directed at largely identical conduct. Jeffers v. United States, 432 U. S., at 157; Garrett, 471 U. S., at 794 ("[T]he plurality [in Jeffers] reasonably concluded that the dangers posed by a conspiracy and a CCE were similar and thus there would be little purpose in cumulating the penalties").302gressional intent is for the District Court ... to exercise its discretion to vacate one of the underlying convictions" as well as the concurrent sentence based upon it. Id., at 864. We explained further:"The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility and certainly carries the societal stigma accompanying any criminal conviction. See Benton v. Maryland, 395 U. S. 784, 790-791 (1969); Sibron v. New York, 392 U. S. 40, 54-56 (1968). Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment." Id., at 864-865.Under Ball, the collateral consequences of a second conviction make it as presumptively impermissible to impose as it would be to impose any other unauthorized cumulative sentence.The Government suggests, however, that petitioner will never be exposed to collateral consequences like those described in Ball because he is subject to multiple life sentences without possibility of release. We need not conclusively resolve the matter, for there is no doubt that the second conviction carried with it, at very least, a $50 assessment. Although petitioner did not challenge the assessment below, 18 U. S. C. § 3013 required the District Court to impose it, and the assessment was therefore as much a collateral consequence of the conspiracy conviction as the con-303sequences recognized by Ball would be. As a result, the conviction amounts to cumulative punishment not authorized by Congress.IVThe Government further argues that even if the second conviction amounts to punishment, the presumption against allowing multiple punishments for the same crime may be overcome if Congress clearly indicates that it intended to allow courts to impose them. Hunter, 459 U. S., at 366 (citing Whalen, 445 U. S., at 691-692); Garrett v. United States, 471 U. S. 773, 779 (1985) (allowing multiple punishment in light of Congress' "plainly expressed" view). The Government submits that such clear intent can be found here.The Government finds support for its position in this Court's judgment in Jeffers because that judgment allowed convictions under both §§ 846 and 848 to stand. Those convictions, however, had been entered in separate trials and our review only addressed the conviction under § 848. The Court affirmed that conviction not because anyone on the Court suggested that Congress had intended to authorize dual convictions for the same offense,13 but rather because the four-Justice plurality decided that Jeffers had waived any right to object to Jeffers' prosecution for that conviction, see Jeffers, 432 U. S., at 152-154, and because Justice White believed that the two prosecutions were for different offenses.The sole ground for Justice White's critical fifth vote to affirm the judgment was his belief, set forth in a single short paragraph, that conspiracy was not a lesser included offense13 Indeed, the parties insisted that the case did not involve multiple punishment concerns, Jeffers, 432 U. S., at 154, and n. 23, and the Government did not contend that Congress intended to authorize the imposition of dual punishments. Because neither the Court nor the parties addressed the issue, Jeffers is a singularly unlikely source for a holding that Congress clearly authorized multiple convictions. Cf. United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 38 (1952).304of CCE. Id., at 158 (opinion concurring in judgment in part and dissenting in part). In Part II of this opinion we have rejected that view. Accordingly, even if we could infer that the plurality had silently reached the rather bizarre conclusion that Congress intended to allow dual convictions but to preclude other multiple punishments, only four Justices would have supported it, with four others explicitly disagreeing. As to this issue, then, the judgment amounts at best to nothing more than an unexplained affirmance by an equally divided court-a judgment not entitled to precedential weight no matter what reasoning may have supported it. See Neil v. Biggers, 409 U. S. 188, 192 (1972). The more important message conveyed by Jeffers is found not in the bare judgment, but in the plurality's conclusion, joined by the four dissenters, that CCE and conspiracy are insufficiently distinct to justify a finding that Congress intended to allow punishments for both when they rest on the same activity.1414 The Government suggests that convictions are authorized for both §§ 846 and 848 because they are different sections of the United States Code. Brief for United States 16. This does not rise to the level of the clear statement necessary for us to conclude that despite the identity of the statutory elements, Congress intended to allow multiple punishments. After all, we concluded in Ball that the statutes at issue did not authorize separate convictions, and they were even more distant in the Code. See 470 U. S., at 863-864 (discussing 18 U. S. C. § 922(h) and 18 U. S. C. App. § 1202(a) (1984)). If anything, the proximity of §§ 846 and 848 indicates that Congress understood them to be directed to similar, rather than separate, evils. Cf. Albernaz v. United States, 450 U. S. 333, 343 (1981).The Government further discerns congressional intent to allow multiple punishment from "significant differences" between Ball and this case. Brief for United States 19-24. None of its arguments, however, demonstrates that Congress "specially authorized" convictions for both the greater and lesser included offenses we address today. Whalen, 445 U. S., at 693. The Government suggests, for example, that the statutes in Ball were directed at virtually identical activity, while CCE and conspiracy are not. As we have already concluded, however, every proof of a CCE will demonstrate a conspiracy based on the same facts. That overlap is enough to conclude, absent more, that Congress did not intend to allow punishments for both.305vFinally, the Government argues that Congress must have intended to allow multiple convictions because doing so would provide a "backup" conviction, preventing a defendant who later successfully challenges his greater offense from escaping punishment altogether-even if the basis for the reversal does not affect his conviction under the lesser. Brief for United States 20-22. We find the argument unpersuasive, for there is no reason why this pair of greater and lesser offenses should present any novel problem beyond that posed by any other greater and lesser included offenses, for which the courts have already developed rules to avoid the perceived danger.In Tinder v. United States, 345 U. S. 565, 570 (1953), the defendant had been convicted of theft from a mailbox and improperly sentenced to prison for more than one year even though the evidence only supported a misdemeanor conviction. Exercising our "power to do justice as the case requires" pursuant to 28 U. S. C. § 2106, we ordered the District Court to correct the sentence without vacating the underlying conviction. Relying on Tinder and the practice in "state courts, including courts governed by statutes virtually the same as Section 2106," the Court of Appeals for the District of Columbia Circuit later decided that its "power to modify erroneous judgments authorizes reduction to a lesser included offense where the evidence is insufficient to support an element of the [greater] offense stated in the verdict." Austin v. United States, 382 F.2d 129, 140, 141-143 (1967).1515 The Court of Appeals used this same power in Allison v. United States, 409 F.2d 445 (CADC 1969), but noted: "[T]he circumstances in which such authority may be exercised are limited. It must be clear (1) that the evidence adduced at trial fails to support one or more elements of the crime of which appellant was convicted, (2) that such evidence sufficiently sustains all the elements of another offense, (3) that the latter is a lesser included offense of the former, and (4) that no undue prejudice will result to the accused." Id., at 450-451.306Consistent with the views expressed by the District of Columbia Circuit, federal appellate courts appear to have uniformly concluded that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense. See 8A J. Moore, Federal Practice , 31.03[5], and n. 54 (2d ed. 1995); United States v. Ward, 37 F.3d 243, 251 (CA6 1994) (after finding insufficient evidence to support CCE count, Court of Appeals vacated CCE conviction and sentence and remanded for entry of conspiracy conviction, which District Court had previously vacated as lesser included offense of CCE), cert. denied, 514 U. S. 1030 (1995); United States v. Silvers, 888 F. Supp. 1289, 1306-1309 (ND Md. 1995) (reinstating conspiracy conviction previously vacated after granting motion for new trial on CCE conviction). This Court has noted the use of such a practice with approval. Morris v. Mathews, 475 U. S. 237, 246-247 (1986) (approving process of reducing erroneous greater offense to lesser included offense as long as the defendant is not able to demonstrate that "but for the improper inclusion of the [erroneous] charge, the result of the proceeding probably would have been different"). See also Jones v. Thomas, 491 U. S. 376, 384-385, n. 3 (1989) (citing Morris).There is no need for us now to consider the precise limits on the appellate courts' power to substitute a conviction on a lesser offense for an erroneous conviction of a greater offense.16 We need only note that the concern motivating the Government in asking us to endorse either the Seventh Circuit's practice of entering concurrent sentences on CCE and conspiracy counts, or the Second Circuit's practice of enter-16 Indeed, because of our holding today, problems like the one presented in this case are unlikely to arise in the future. A jury is generally instructed not to return a verdict on a lesser included offense once it has found the defendant guilty of the greater offense. See, e. g., Seventh Circuit Pattern Criminal Jury Instruction 2.03, in 1 L. Sand, J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions, p. 7-7 (1991).307ing concurrent judgments, is no different from the problem that arises whenever a defendant is tried for greater and lesser offenses in the same proceeding. In such instances, neither legislatures nor courts have found it necessary to impose multiple convictions, and we see no reason why Congress, faced with the same problem, would consider it necessary to deviate from the traditional rule.17VIA guilty verdict on a § 848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of § 846; conspiracy is therefore a lesser included offense of CCE. Because the Government's arguments have not persuaded us otherwise, we adhere to the presumption that Congress intended to authorize only one punishment. Accordingly, "[o]ne of [petitioner's] convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense" and must be vacated. Ball, 470 U. S., at 864.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, 1995SyllabusRUTLEDGE v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 94-8769. Argued November 27, 1995-Decided March 27, 1996A jury found petitioner guilty of one count of participating in a conspiracy to distribute controlled substances in violation of 21 U. S. C. § 846 and one count of conducting a continuing criminal enterprise (CCE) "in concert" with others in violation of § 848. The "in concert" element of his CCE offense was based on the same agreement as the § 846 conspiracy. The District Court entered judgment of conviction on both counts and imposed a sentence of life imprisonment without possible release on each, the sentences to be served concurrently. Pursuant to 18 U. S. C. § 3013, it also ordered petitioner to pay a special assessment of $50 on each count. The Seventh Circuit affirmed, relying on Jeffers v. United States, 432 U. S. 137, to reject petitioner's contention that his convictions and concurrent life sentences impermissibly punished him twice for the same offense.Held: The District Court erred in sentencing petitioner to concurrent life sentences on the § 846 and § 848 counts. Pp. 297-307.(a) It is presumed that a legislature does not intend to impose two punishments where two statutory provisions proscribe the "same offense." The test for determining whether there are two offenses is whether each of the statutory provisions requires proof of a fact which the other does not. Blockburger v. United States, 284 U. S. 299, 304. This Court has often concluded that two statutes define the "same offense" where one is a lesser included offense of the other. For the reasons set forth in Jeffers, 432 U. S., at 149-150 (plurality opinion); id., at 158, 159, n. 5 (dissenting opinion), and particularly because the plain meaning of § 848's "in concert" phrase signifies mutual agreement in a common plan or enterprise, the Court now resolves definitively that a guilty verdict on a § 848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of § 846. Conspiracy is therefore a lesser included offense of CCE. Pp. 297-300.(b) The Court rejects the Government's contention that the presumption against multiple punishments does not invalidate either of petitioner's convictions because the sentence on the second one was concurrent. That conviction amounts to a second punishment because a $50 special assessment was imposed on it. Cf. Ray v. United States, 481 U. S. 736 (1987) (per curiam). Even if the assessment were ignored, the force of293the Government's argument would be limited by Ball v. United States, 470 U. S. 856, 861-865, in which the Court concluded that Congress did not intend to allow punishment for both illegally "receiving" and illegally "possessing" a firearm; held that the only remedy consistent with the congressional intent was to vacate one of the underlying convictions as well as the concurrent sentence based upon it; and explained that the second conviction does not evaporate simply because of its sentence's concurrence, since it has potential adverse collateral consequencese. g., delay of parole eligibility or an increased sentence under a recidivist statute for a future offense-that make it presumptively impermissible to impose. Although petitioner did not challenge the $50 assessment below, the fact that § 3013 required its imposition renders it as much a collateral consequence of the conspiracy conviction as the consequences recognized by Ball. Pp.301-303.(c) Also rejected is the Government's argument that the presumption against multiple punishments is overcome here because Congress has clearly indicated its intent to allow courts to impose them. Support for that view cannot be inferred from the fact that this Court's Jeffers judgment allowed convictions under both §§ 846 and 848 to stand, since those convictions were entered in separate trials, the Court's review addressed only the § 848 conviction, and that conviction was affirmed because the four-Justice plurality decided that Jeffers had waived any right to object, see 432 U. S., at 152-154, and because Justice White took the hereinbefore-rejected position that conspiracy was not a lesser included offense of CCE, see id., at 158 (opinion concurring in judgment in part and dissenting in part). As to this issue, then, the judgment is not entitled to precedential weight because it amounts at best to an unexplained affirmance by an equally divided court. Pp. 303-304.(d) The Government's argument that Congress intended to allow multiple convictions here to provide a "backup" conviction, preventing a defendant who later successfully challenges his greater offense from escaping punishment altogether, is unpersuasive. There is no reason why this particular pair of greater and lesser offenses should present any novel problem not already addressed by the federal appellate courts, which have uniformly concluded-with this Court's approval, see, e. g., Morris v. Mathews, 475 U. S. 237, 246-247-that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds affecting only the greater offense. Pp.305-307.(e) Because the Court here adheres to the presumption that Congress intended to authorize only one punishment, one of petitioner's convictions, as well as its concurrent sentence, is unauthorized punishment294Full Text of Opinion

1975_74-891

MR. JUSTICE REHNQUIST delivered the opinion of the Court.We granted certiorari, 421 U.S. 909 (1975), in this case to consider whether respondent's charge that petitioners' defamation of him, standing alone and apart from any other governmental action with respect to him, stated a claim for relief under 42 U.S.C. § 1983 and the Fourteenth Amendment. For the reasons hereinafter stated, we conclude that it does not.Petitioner Paul is the Chief of Police of the Louisville, Ky., Division of Police, while petitioner McDaniel occupies the same position in the Jefferson County, Ky., Division of Police. In late 1972, they agreed to combine their efforts for the purpose of alerting local area merchants to possible shoplifters who might be operating during Page 424 U. S. 695 the Christmas season. In early December, petitioners distributed to approximately 800 merchants in the Louisville metropolitan area a "flyer," which began as follows:"TO: BUSINESS MEN IN THE METROPOLITAN AREA""The Chiefs of The Jefferson County and City of Louisville Police Departments, in an effort to keep their officers advised on shoplifting activity, have approved the attached alphabetically arranged flyer of subjects known to be active in this criminal field.""This flyer is being distributed to you, the business man, so that you may inform your security personnel to watch for these subjects. These persons have been arrested during 1971 and 1972 or have been active in various criminal fields in high density shopping areas.""Only the photograph and name of the subject is shown on this flyer; if additional information is desired, please forward a request in writing. . . ."The flyer consisted of five pages of "mug shot" photos, arranged alphabetically. Each page was headed:NOVEMBER 1972CITY OF LOUISVILLEJEFFERSON COUNTYPOLICE DEPARTMENTSACTIVE SHOPLIFTERSIn approximately the center of page 2 there appeared photos and the name of the respondent, Edward Charles Davis III.Respondent appeared on the flyer because, on June 14, 1971, he had been arrested in Louisville on a charge of shoplifting. He had been arraigned on this charge in September, 1971, and, upon his plea of not guilty, the Page 424 U. S. 696 charge had been "filed away with leave [to reinstate]," a disposition which left the charge outstanding. Thus, at the time petitioners caused the flyer to be prepared and circulated, respondent had been charged with shoplifting but his guilt or innocence of that offense had never been resolved. Shortly after circulation of the flyer, the charge against respondent was finally dismissed by a judge of the Louisville Police Court.At the time the flyer was circulated, respondent was employed as a photographer by the Louisville Courier-Journal and Times. The flyer, and respondent's inclusion therein, soon came to the attention of respondent's supervisor, the executive director of photography for the two newspapers. This individual called respondent in to hear his version of the events leading to his appearing in the flyer. Following this discussion, the supervisor informed respondent that, although he would not be fired, he "had best not find himself in a similar situation" in the future.Respondent thereupon brought this § 1983 action in the District Court for the Western District of Kentucky, seeking redress for the alleged violation of rights guaranteed to him by the Constitution of the United States. Claiming jurisdiction under 28 U.S.C. § 1343(3), respondent sought damages as well as declaratory and injunctive relief. Petitioners moved to dismiss this complaint. The District Court granted this motion, ruling that "[t]he facts alleged in this case do not establish that plaintiff has been deprived of any right secured to him by the Constitution of the United States."Respondent appealed to the Court of Appeals for the Sixth Circuit, which recognized that, under our decisions, for respondent to establish a claim cognizable under § 1983, he had to show that petitioners had deprived Page 424 U. S. 697 him of a right secured by the Constitution [Footnote 1] of the United States, and that any such deprivation was achieved under color of law. [Footnote 2] Adickes v. Kress & Co., 398 U. S. 144, 398 U. S. 150 (1970). The Court of Appeals concluded that respondent had set forth a § 1983 claim "in that he has alleged facts that constitute a denial of due process of law." 505 F.2d 1180, 1182 (1974). In its view, our decision in Wisconsin v. Constantineau, 400 U. S. 433 (1971), mandated reversal of the District Court.IRespondent's due process claim is grounded upon his assertion that the flyer, and in particular the phrase "Active Shoplifters" appearing at the head of the page upon which his name and photograph appear, impermissibly deprived him of some "liberty" protected by the Fourteenth Amendment. His complaint asserted that the "active shoplifter" designation would inhibit him from entering business establishments for fear of being suspected of shoplifting and possibly apprehended, and would seriously impair his future employment opportunities. Accepting that such consequences may flow from the flyer in question, respondent's complaint would appear to state a classical claim for defamation actionable in the courts of virtually every State. Imputing criminal behavior to an individual is generally considered defamatory per se, and actionable without proof of special damages.Respondent brought his action, however, not in the state courts of Kentucky, but in a United States District Page 424 U. S. 698 Court for that State. He asserted not a claim for defamation under the laws of Kentucky, but a claim that he had been deprived of rights secured to him by the Fourteenth Amendment of the United States Constitution. Concededly, if the same allegations had been made about respondent by a private individual, he would have nothing more than a claim for defamation under state law. But, he contends, since petitioners are, respectively, an official of city and of county government, his action is thereby transmuted into one for deprivation by the State of rights secured under the Fourteenth Amendment.In Greenwood v. Peacock, 384 U. S. 808 (196), in the course of considering an important and not wholly dissimilar question of the relationship between the National and the State Governments, the Court said that"[i]t is worth contemplating what the result would be if the strained interpretation of § 1443(1) urged by the individual petitioners were to prevail."Id. at 384 U. S. 832. We, too, pause to consider the result should respondent's interpretation of § 1983 and of the Fourteenth Amendment be accepted.If respondent's view is to prevail, a person arrested by law enforcement officers who announce that they believe such person to be responsible for a particular crime in order to calm the fears of an aroused populace presumably obtains a claim against such officers under § 1983. And since it is surely far more clear from the language of the Fourteenth Amendment that "life" is protected against state deprivation than it is that reputation is protected against state injury, it would be difficult to see why the survivors of an innocent bystander mistakenly shot by a policeman or negligently killed by a sheriff driving a government vehicle would not have claims equally cognizable under § 1983.It is hard to perceive any logical stopping place to such Page 424 U. S. 699 a line of reasoning. Respondent's construction would seem almost necessarily to result in every legally cognizable injury which may have been inflicted by a state official acting under "color of law" establishing a violation of the Fourteenth Amendment. We think it would come as a great surprise to those who drafted and shepherded the adoption of that Amendment to learn that it worked such a result, and a study of our decisions convinces us they do not support the construction urged by respondent.IIThe result reached by the Court of Appeals, which respondent seeks to sustain here, must be bottomed on one of two premises. The first is that the Due Process Clause of the Fourteenth Amendment and § 1983 make actionable many wrongs inflicted by government employees which had heretofore been thought to give rise only to state law tort claims. The second premise is that the infliction by state officials of a "stigma" to one's reputation is somehow different in kind from the infliction by the same official of harm or injury to other interests protected by state law, so that an injury to reputation is actionable under § 1983 and the Fourteenth Amendment even if other such harms are not. We examine each of these premises in turn.AThe first premise would be contrary to pronouncements in our cases on more than one occasion with respect to the scope of § 1983 and of the Fourteenth Amendment. In the leading case of Screws v. United States, 325 U. S. 91 (1945), the Court considered the proper application of the criminal counterpart of § 1983, likewise intended by Congress to enforce the guarantees of the Fourteenth Page 424 U. S. 700 Amendment. In his opinion for the Court plurality in that case, Mr. Justice Douglas observed:"Violation of local law does not necessarily mean that federal rights have been invaded. The fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States."325 U.S. at 325 U. S. 108-109.After recognizing that Congress' power to make criminal the conduct of state officials under the aegis of the Fourteenth Amendment was not unlimited because that Amendment "did not alter the basic relations between the States and the national government," the plurality opinion observed that Congress should not be understood to have attempted"to make all torts of state officials federal crimes. It brought within [the criminal provision] only specified acts done 'under color' of law, and then only those acts which deprived a person of some right secured by the Constitution or laws of the United States."Id. at 325 U. S. 109.This understanding of the limited effect of the Fourteenth Amendment was not lost in the Court's decision in Monroe v. Pape, 365 U. S. 167 (1961). There, the Court was careful to point out that the complaint stated a cause of action under the Fourteenth Amendment because it alleged an unreasonable search and seizure violative of the guarantee "contained in the Fourth Amendment [and] made applicable to the States by reason of the Due Process Clause of the Fourteenth Amendment." Id. at 365 U. S. 171. Respondent, however, has pointed to no specific constitutional guarantee safeguarding the interest he asserts has been invaded. Page 424 U. S. 701 Rather, he apparently believes that the Fourteenth Amendment's Due Process Clause should ex proprio vigore extend to him a right to be free of injury wherever the State may be characterized as the tortfeasor. But such a reading would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States. We have noted the "constitutional shoals" that confront any attempt to derive from congressional civil rights statutes a body of general federal tort law, Griffin v. Breckenridge, 403 U. S. 88, 403 U. S. 101-102 (1971); a fortiori, the procedural guarantees of the Due Process Clause cannot be the source for such law.BThe second premise upon which the result reached by the Court of Appeals could be rested -- that the infliction by state officials of a "stigma" to one's reputation is somehow different in kind from infliction by a state official of harm to other interests protected by state law -- is equally untenable. The words "liberty" and "property," as used in the Fourteenth Amendment, do not, in terms, single out reputation as a candidate for special protection over and above other interests that may be protected by state law. While we have in a number of our prior cases pointed out the frequently drastic effect of the "stigma" which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either "liberty" or "property" by itself sufficient to invoke the procedural protection of the Due Process Clause. As we have said, the Court of Appeals, in reaching a contrary conclusion, relied primarily upon Wisconsin v. Constantineau, 400 U. S. 433 (1971). We think the correct import of that Page 424 U. S. 702 decision, however, must be derived from an examination of the precedents upon which it relied, as well as consideration of the other decisions by this Court, before and after Constantineau, which bear upon the relationship between governmental defamation and the guarantees of the Constitution. While not uniform in their treatment of the subject, we think that the weight of our decisions establishes no constitutional doctrine converting every defamation by a public official into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth [Footnote 3] or Fourteenth Amendment.In United States v. Lovett, 328 U. S. 303 (1946), the Court held that an Act of Congress which specifically forbade payment of any salary or compensation to three named Government agency employees was an unconstitutional bill of attainder. The three employees had been proscribed because a House of Representatives subcommittee found them guilty of "subversive activity," and therefore unfit for Government service. The Court, while recognizing that the underlying charges upon which Congress' action was premised "stigmatized [the employees'] reputation and seriously impaired their chance to earn a living," id. at 328 U. S. 314, also made it clear that "[w]hat is involved here is a congressional proscription of [these employees], prohibiting their ever holding a government job." Ibid.Subsequently, in Joint Anti-Fascist Refugee Comm. Page 424 U. S. 703 v. McGrath, 341 U. S. 123 (1951), the Court examined the validity of the Attorney General's designation of certain organizations as "Communist" on a list which he furnished to the Civil Service Commission. There was no majority opinion in the case; Mr. Justice Burton, who announced the judgment of the Court, wrote an opinion which did not reach the petitioners' constitutional claim. Mr. Justice Frankfurter, who agreed with Mr. Justice Burton that the petitioners had stated a claim upon which relief could be granted, noted that"publicly designating an organization as within the proscribed categories of the Loyalty Order does not directly deprive anyone of liberty or property."Id. at 341 U. S. 164. Mr. Justice Douglas, who likewise concluded that petitioners had stated a claim, observed in his separate opinion:"This is not an instance of name calling by public officials. This is a determination of status -- a proceeding to ascertain whether the organization is or is not 'subversive.' This determination has consequences that are serious to the condemned organizations. Those consequences flow in part, of course, from public opinion. But they also flow from actions of regulatory agencies that are moving in the wake of the Attorney General's determination to penalize or police these organizations."Id. at 341 U. S. 175.Mr. Justice Jackson, who likewise agreed that petitioners had stated a claim, commented:"I agree that mere designation as subversive deprives the organizations themselves of no legal right or immunity. By it, they are not dissolved, subjected to any legal prosecution, punished, penalized, or prohibited from carrying on any of their activities. Their claim of injury is that they cannot attract audiences, enlist members, or obtain contributions Page 424 U. S. 704 as readily as before. These, however, are sanctions applied by public disapproval, not by law."Id. at 341 U. S. 183-184.He went on to say:"[T]he real target of all this procedure is the government employee who is a member of, or sympathetic to, one or more accused organizations. He not only may be discharged, but disqualified from employment, upon no other ground than such membership or sympathetic affiliation. . . . To be deprived not only of present government employment but of future opportunity for it certainly is no small injury when government employment so dominates the field of opportunity."Id. at 341 U. S. 184-185.Mr. Justice Reed, writing for himself, The Chief Justice, and Mr. Justice Minton, would have held that petitioners failed to state a claim for relief. In his dissenting opinion, after having stated petitioners' claim that their listing resulted in a deprivation of liberty or property contrary to the procedure required by the Fifth Amendment, he said:"The contention can be answered summarily by saying that there is no deprivation of any property or liberty of any listed organization by the Attorney General's designation. It may be assumed that the listing is hurtful to their prestige, reputation and earning power. It may be such an injury as would entitle organizations to damages in a tort action against persons not protected by privilege. . . . This designation, however, does not prohibit any business of the organizations, subject them to any punishment or deprive them of liberty of speech or other freedom."Id. at 341 U. S. 202.Thus, at least six of the eight Justices who participated Page 424 U. S. 705 in that case viewed any "stigma" imposed by official action of the Attorney General of the United States, divorced from its effect on the legal status of an organization or a person, such as loss of tax exemption or loss of government employment, as an insufficient basis for invoking the Due Process Clause of the Fifth Amendment.In Wieman v. Updegraff, 344 U. S. 183 (1952), the Court again recognized the potential "badge of infamy" which might arise from being branded disloyal by the government. Id. at 344 U. S. 191. But it did not hold this sufficient by itself to invoke the procedural due process guarantees of the Fourteenth Amendment; indeed, the Court expressly refused to pass upon the procedural due process claims of petitioners in that case. Id. at 344 U. S. 192. The Court noted that petitioners would, as a result of their failure to execute the state loyalty oath, lose their teaching positions at a state university. It held such state action to be arbitrary because of its failure to distinguish between innocent and knowing membership in the associations named in the list prepared by the Attorney General of the United States. Id. at 344 U. S. 191. See also Peters v. Hobby, 349 U. S. 331, 349 U. S. 347 (1955).A decade after Joint Anti-Fascist Refugee Comm. v. McGrath, supra, the Court returned to consider further the requirements of procedural due process in this area in the case of Cafeteria Workers v. McElroy, 367 U. S. 886 (1961). Holding that the discharge of an employee of a Government contractor in the circumstances there presented comported with the due process required by the Fifth Amendment, the Court observed:"Finally, it is to be noted that this is not a case where government action has operated to bestow a badge of disloyalty or infamy, with an attendant foreclosure from other employment opportunity. See Page 424 U. S. 706 Wieman v. Updegraff, 344 U. S. 183, 344 U. S. 190-191; Joint Anti-Fascist Comm. v. McGrath, 341 U. S. 123, 341 U. S. 140-141. . . ."Id. at 367 U. S. 898. (Emphasis supplied.)Two things appear from the line of cases beginning with Lovett. The Court has recognized the serious damage that could be inflicted by branding a government employee as "disloyal," and thereby stigmatizing his good name. But the Court has never held that the mere defamation of an individual, whether by branding him disloyal or otherwise, was sufficient to invoke the guarantees of procedural due process absent an accompanying loss of government employment. [Footnote 4] Page 424 U. S. 707It is noteworthy that, in Barr v. Matteo, 360 U. S. 564 (1959), and Howard v. Lyons, 360 U. S. 593 (1959), this Court had before it two actions for defamation brought against federal officers. But in neither opinion is there any intimation that any of the parties to those cases, or any of the Members of this Court, had the remotest idea that the Due Process Clause of the Fifth Amendment might itself form the basis for a claim for defamation against federal officials.It was against this backdrop that the Court, in 1971, decided Constantineau. There, the Court held that a Wisconsin statute authorizing the practice of "posting" was unconstitutional because it failed to provide procedural safeguards of notice and an opportunity to be heard, prior to an individual's being "posted." Under the statute, "posting" consisted of forbidding in writing the sale or delivery of alcoholic beverages to certain persons who were determined to have become hazards to themselves, to their family, or to the community by reason of their "excessive drinking." The statute also made it a misdemeanor to sell or give liquor to any person so posted. See 400 U.S. at 400 U. S. 434 n. 2.There is undoubtedly language in Constantineau which is sufficiently ambiguous to justify the reliance upon it by the Court of Appeals:"Yet certainly where the state attaches 'a badge of infamy' to the citizen, due process comes into play. Page 424 U. S. 708 Wieman v. Updegraff, 344 U. S. 183, 344 U. S. 191.""[T]he right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society."Anti=Fascist Committee v. McGrath, 341 U. S. 123, 341 U. S. 168 (Frankfurter, J., concurring)."Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential."Id. at 341 U. S. 437 (emphasis supplied).The last paragraph of the quotation could be taken to mean that, if a government official defames a person, without more, the procedural requirements of the Due Process Clause of the Fourteenth Amendment are brought into play. If read that way, it would represent a significant broadening of the holdings of Wieman v. Updegraff, 344 U. S. 183 (1952), and Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123 (1951), relied upon by the Constantineau Court in its analysis in the immediately preceding paragraph. We should not read this language as significantly broadening those holdings without in any way adverting to the fact if there is any other possible interpretation of Constantineau's language. We believe there is.We think that the italicized language in the last sentence quoted, "because of what the government is doing to him," referred to the fact that the governmental action taken in that case deprived the individual of a right previously held under state law -- the right to purchase or obtain liquor in common with the rest of the citizenry. "Posting," therefore, significantly altered her status as a matter of state law, and it was that alteration of legal status which, combined with the injury resulting Page 424 U. S. 709 from the defamation, justified the invocation of procedural safeguards. The "stigma" resulting from the defamatory character of the posting was doubtless an important factor in evaluating the extent of harm worked by that act, but we do not think that such defamation, standing alone, deprived Constantineau of any "liberty" protected by the procedural guarantees of the Fourteenth Amendment.This conclusion is reinforced by our discussion of the subject a little over a year later in Board of Regents v. Roth, 408 U. S. 564 (1972). There, we noted that "the range of interests protected by procedural due process is not infinite," id. at 408 U. S. 570, and that, with respect to property interests, they are,"of course, . . . not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."Id. at 408 U. S. 577. While Roth recognized that governmental action defaming an individual in the course of declining to rehire him could entitle the person to notice and an opportunity to be heard as to the defamation, its language is quite inconsistent with any notion that a defamation perpetrated by a government official but unconnected with any refusal to rehire would be actionable under the Fourteenth Amendment:"The state, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. . . .""Similarly, there is no suggestion that the State, in declining to reemploy the respondent, imposed o Page 424 U. S. 710 him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities."Id. at 408 U. S. 573 (emphasis supplied). Thus, it was not thought sufficient to establish a claim under § 1983 and the Fourteenth Amendment that there simply be defamation by a state official; the defamation had to occur in the course of the termination of employment. Certainly there is no suggestion in Roth to indicate that a hearing would be required each time the State, in its capacity as employer, might be considered responsible for a statement defaming an employee who continues to be an employee.This conclusion is quite consistent with our most recent holding in this area, Goss v. Lopez, 419 U. S. 565 (1975), that suspension from school based upon charges of misconduct could trigger the procedural guarantees of the Fourteenth Amendment. While the Court noted that charges of misconduct could seriously damage the student's reputation, id. at 419 U. S. 574-575, it also took care to point out that Ohio law conferred a right upon all children to attend school, and that the act of the school officials suspending the student there involved resulted in a denial or deprivation of that right.IIIIt is apparent from our decisions that there exists a variety of interests which are difficult of definition, but are nevertheless comprehended within the meaning of either "liberty" or "property" as meant in the Due Process Clause. These interests attain this constitutional status by virtue of the fact that they have been initially recognized and protected by state law. [Footnote 5] and we Page 424 U. S. 711 have repeatedly ruled that the procedural guarantees of the Fourteenth Amendment apply whenever the State seeks to remove or significantly alter that protected status. In Bell v. Burson, 402 U. S. 535 (1971), for example, the State, by issuing drivers' licenses, recognized in its citizens a right to operate a vehicle on the highways of the State. The Court held that the State could not withdraw this right without giving petitioner due process. In Morrissey v. Brewer, 408 U. S. 471 (1972), the State afforded parolees the right to remain at liberty as long as the conditions of their parole were not violated. Before the State could alter the status of a parolee because of alleged violations of these conditions, we held that the Fourteenth Amendment's guarantee of due process of law required certain procedural safeguards.In each of these cases, as a result of the state action complained of, a right or status previously recognized by state law was distinctly altered or extinguished. It was this alteration, officially removing the interest from the recognition and protection previously afforded by the State, which we found sufficient to invoke the procedural guarantees contained in the Due Process Clause of the Fourteenth Amendment. But the interest in reputation alone which respondent seeks to vindicate in this action in federal court is quite different from the "liberty" or "property" recognized in those decisions. Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a Page 424 U. S. 712 result of petitioners' actions. Rather, his interest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interests by means of damages actions. And any harm or injury to that interest, even where, as here, inflicted by an officer of the State, does not result in a deprivation of any "liberty" or "property" recognized by state or federal law, nor has it worked any change of respondent's status as theretofore recognized under the State's laws. For these reasons, we hold that the interest in reputation asserted in this case is neither "liberty" nor "property" guaranteed against state deprivation without due process of law.Respondent in this case cannot assert denial of any right vouchsafed to him by the State, and thereby protected under the Fourteenth Amendment. That being the case, petitioners' defamatory publications, however seriously they may have harmed respondent's reputation, did not deprive him of any "liberty" or "property" interests protected by the Due Process Clause.IVRespondent's complaint also alleged a violation of a "right to privacy guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments." The Court of Appeals did not pass upon this claim since it found the allegations of a due process violation sufficient to require reversal of the District Court's order. As we have agreed with the District Court on the due process issue, we find it necessary to pass upon respondent's other theory in order to determine whether there is any support for the litigation he seeks to pursue.While there is no "right of privacy" found in any specific guarantee of the Constitution, the Court has recognized that "zones of privacy" may be created by Page 424 U. S. 713 more specific constitutional guarantees, and thereby impose limits upon government power. See Roe v. Wade, 410 U. S. 113, 410 U. S. 152-153 (1973). Respondent's case, however, comes within none of these areas. He does not seek to suppress evidence seized in the course of an unreasonable search. See Katz v. United States, 389 U. S. 347, 389 U. S. 351 (1967); Terry v. Ohio, 392 U. S. 1, 392 U. S. 8-9 (1968). And our other "right of privacy" cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe, the Court pointed out that the personal rights found in this guarantee of personal privacy must be limited to those which are "fundamental" or "implicit in the concept of ordered liberty" as described in Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325 (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection -- matters relating to marriage, procreation, contraception, family relationships, and childrearing and education. In these areas, it has been held that there are limitations on the States' power to substantively regulate conduct.Respondent's claim is far afield from this line of decisions. He claims constitutional protection against the disclosure of the fact of his arrest on a shoplifting charge. His claim is based, not upon any challenge to the State's ability to restrict his freedom of action in a sphere contended to be "private," but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner.None of respondent's theories of recovery were based upon rights secured to him by the Fourteenth Amendment. Page 424 U. S. 714 Petitioners therefore were not liable to him under § 1983. The judgment of the Court of Appeals holding otherwise isReversed

U.S. Supreme CourtPaul v. Davis, 424 U.S. 693 (1976)Paul v. DavisNo. 74-891Argued November 4, 1975Decided March 23, 1976424 U.S. 693SyllabusA photograph of respondent bearing his name was included in a "flyer" of "active shoplifters," after he had been arrested on a shoplifting charge in Louisville, Ky. After that charge had been dismissed, respondent brought this action under 42 U.S.C. § 1983 against petitioner police chiefs, who had distributed the flyer to area merchants, alleging that petitioners' action under color of law deprived him of his constitutional rights. The District Court granted petitioners' motion to dismiss. The Court of Appeals reversed, relying on Wisconsin v. Constantineau, 400 U. S. 433. Held:1. Petitioners' action in distributing the flyer did not deprive respondent of any "liberty" or "property" rights secured against state deprivation by the Due Process Clause of the Fourteenth Amendment. Pp. 424 U. S. 699-710.(a) The Due Process Clause does not ex proprio vigore extend to a person a right to be free of injury wherever the State may be characterized as the tortfeasor. Pp. 424 U. S. 699-701.(b) Reputation alone, apart from some more tangible interests such as employment, does not implicate any "liberty" or "property" interests sufficient to invoke the procedural protection of the Due Process Clause; hence, to establish a claim under § 1983 and the Fourteenth Amendment, more must be involved than simply defamation by a state official. Wisconsin v. Constantineau, supra, distinguished. Pp. 424 U. S. 701-710.(c) Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation that has been altered by petitioners' actions, and the interest in reputation alone is thus quite different from the "liberty" or "property" recognized in such decisions as Bell v. Burson, 402 U. S. 535, and Morrissey v. Brewer, 408 U. S. 471, where the guarantee of due process required certain procedural safeguards before the State could alter the status of the complainants. Pp. 424 U. S. 710-712.2. Respondent's contention that petitioners' defamatory flyer deprived him of his constitutional right to privacy is without Page 424 U. S. 694 merit, being based not upon any challenge to the State's ability to restrict his freedom of action in a sphere contended to be "private," but on a claim that the State may not publicize a record of an official act like an arrest. Pp. 424 U. S. 712-713.505 F.2d 1180, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and POWELL, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, and in which WHITE, J., joined in part, post, p. 424 U. S. 714. STEVENS, J., took no part in the consideration or decision of the case.

1976_75-1019

MR. JUSTICE WHITE delivered the opinion of the Court.In this case, we are asked to decide the constitutionality of a recent amendment to New York State's longstanding tax on securities transactions. Since 1905, New York has imposed a tax (transfer tax) on securities transactions, if part of the transaction occurs within the State. In 1968, the state legislature amended the transfer tax statute so that transactions involving an out-of-state sale are now taxed more heavily than most transactions involving a sale within the State. In 1972, appellants, six "regional" stock exchanges located outside New York, [Footnote 1] filed an action in state court Page 429 U. S. 320 against the State Tax Commission of New York and its members. The Exchanges' complaint alleged that the 1968 amendment unconstitutionally discriminates against interstate commerce by imposing a greater tax burden on securities transactions involving out-of-state sales than on transactions of the same magnitude involving in-state sales. [Footnote 2] The State Supreme Court denied the Commission's motion to dismiss the action, and the Commission appealed. The Appellate Division reversed and ordered that the Commission's motion be granted to the extent of entering a judgment declaring the 1968 amendment to be constitutional. [Footnote 3] 45 App.Div.2d Page 429 U. S. 321 365, 357 N. .Y. S.2d 116 (1974). The New York Court of Appeals affirmed the order, 37 N.Y.2d 535, 337 N.E.2d 758 (1975), and we noted probable jurisdiction of the Exchanges' appeal, 424 U.S. 964 (1976).INew York Tax Law § 270.1 (McKinney 1966) provides that "all sales, or agreements to sell, or memoranda of sales and all deliveries or transfers of shares or certificates of stock" in any foreign or domestic corporation are subject to the transfer tax. [Footnote 4] Administrative regulations promulgated with respect to Page 429 U. S. 322 the transfer tax provide that the tax applies if any one of the five taxable events occurs within New York, regardless of where the rest of the transaction takes place, and that, if more than one taxable event occurs in the State, only one tax is payable on the entire transaction. 20 N.Y.C.R.R. 940.2 (1976). For transactions involving sales, the rate of tax depends on the selling price per share and the total tax liability is determined by the number of shares sold. [Footnote 5] N.Y.Tax Law § 270.2 (McKinney 1966). Thus, under the unamended version of § 270, a transaction involving a sale and a transfer of shares in New York was taxed the same as a transaction involving an in-state transfer but an out-of-state sale. In both instances, the occasion for the tax was the occurrence of at least one taxable event in the State, the rate of tax was Page 429 U. S. 323 based solely the. price of the securities, and the total tax was determined by the number of shares sold. The Exchanges do not challenge the constitutionality of § 270. [Footnote 6]None of the States in which the appellant Exchanges are located taxes the sale or transfer of securities. During the 1960's, the New York Stock Exchange became concerned that the New York transfer tax created a competitive disadvantage for New York trading, and was thus responsible for the growth of out-of-state exchanges. [Footnote 7] In response to Page 429 U. S. 324 this concern and fearful that the New York Stock Exchange would relocate outside New York, the legislature, in 1968, enacted § 270-a to amend the transfer tax by providing for two deviations from the uniform application of § 270 when one of the taxable events, a sale, takes place in New York. First, transactions by nonresidents of New York are afforded a 50% reduction ("nonresident reduction") in the rate of tax when the transaction involves an in-state sale. Taxable transactions by residents (regardless of where the sale is made) [Footnote 8] and by nonresidents selling outside the State do not benefit from the rate decrease. Second, § 270-a limits the total tax liability of any taxpayer (resident or nonresident) to $350 (maximum tax) for a single transaction when it involves a New York sale. If a sale is made out-of-State, Page 429 U. S. 325 the § 270 tax rate applies to an in-state transfer (or other taxable event) without limitation. [Footnote 9]The reason for the enactment of § 270-a and the intended Page 429 U. S. 326 effect of the amendment are clear from the legislative history. With respect to the amendment, the legislature found:"The securities industry, and particularly the stock exchanges located within the state, have contributed importantly to the economy of the state and its recognition as the financial center of the world. The growth of exchanges in other regions of the country, and the diversion of business to those exchanges of individuals who are nonresidents of the state of New York, require recognition that the tax on transfers of stock imposed by article twelve of the tax law is an important contributing element to the diversion of sales to other areas to the detriment of the economy of the state. Furthermore, in the case of transactions involving large blocks of stock, recognition must be given to the ease of completion Page 429 U. S. 327 of such sales outside the state of New York without the payment of any tax. In order to encourage the effecting by nonresidents of the state of New York of their sales within the state of New York and the retention within the state of New York of sales involving large blocks of stock, a separate classification of the tax on sales by nonresidents of the state of New York and a maximum tax for certain large block sales are desirable."1968 N.Y.Laws, c. 827, § 1. In granting executive approval to § 27a, then Governor Nelson Rockefeller confirmed that the purpose of the new law was to "provide long-term relief from some of the competitive pressures from outside the State." [Footnote 10] The Governor Page 429 U. S. 328 announced that, as a result of the transfer tax amendment, the New York Stock Exchange intended to remain in New York.Appellant Exchanges contend that the legislative history states explicitly what is implicit in the operation of § 270-a: the amendment imposes an unequal tax burden on out-of-state sales in order to protect an in-state business. They argue that this discrimination is impermissible under the Commerce Clause. Appellees do not dispute the statements of the legislature and the Governor that § 270-a is a measure to reduce out-of-state competition with an in-state business. They agree, however, with the holding of the Court of Appeals that the legislature has chosen a nondiscriminatory, and therefore constitutionally permissible, means of "encouraging" sales on the New York Stock Exchange. We hold that § 270-a discriminates against interstate commerce in violation of the Commerce Clause.IIAs in Great A&P Tea Co. v. Cottrell, 424 U. S. 366 (1976), we begin with the principle that "[t]he very purpose of the Commerce Clause was to create an area of free trade among the several States." McLeod v. J. E. Dilworth Co., 322 U. S. 327, 322 U. S. 330 (1944). It is now established beyond dispute that"the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but, by its own force, created an area of trade free from interference by the States. . . . [T]he Commerce Clause, even without implementing legislation by Congress, is a limitation upon the power of the States."Freeman v. Hewit, 329 U. S. 249, 329 U. S. 252 (1946). The Commerce Clause does not, however, eclipse the reserved "power of the States to tax for the support of their own governments," Gibbons Page 429 U. S. 329 v. Ogden, 9 Wheat. 1, 22 U. S. 199 (1824), or for other purposes, cf. United States v. Sanchez, 340 U. S. 42, 340 U. S. 44-45 (1950); rather, the Clause is a limit on state power. Defining that limit has been the continuing task of this Court.On various occasions when called upon to make the delicate adjustment between the national interest in free and open trade and the legitimate interest of the individual States in exercising their taxing powers, the Court has counseled that the result turns on the unique characteristics of the statute at issue and the particular circumstances in each case. E.g., Freeman v. Hewit, supra at 329 U. S. 252. This case-by-case approach has left"much room for controversy and confusion and little in the way of precise guides to the States in the exercise of their indispensable power of taxation."Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450, 358 U. S. 457 (1959). Nevertheless, as observed by Mr. Justice Clark in the case just cited: "[F]rom the quagmire there emerge . . . some firm peaks of decision which remain unquestioned." Id. at 358 U. S. 458. Among these is the fundamental principle that we find dispositive of the case now before us: no State, consistent with the Commerce Clause, may "impose a tax which discriminates against interstate commerce . . . by providing a direct commercial advantage to local business." Ibid. See also Halliburton Oil Well Co. v. Reily, 373 U. S. 64 (1963); Nippert v. Richmond, 327 U. S. 416 (1946); I. M. Darnell & Son v. Memphis, 208 U. S. 113 (1908); Guy v. Baltimore, 100 U. S. 434, 100 U. S. 443 (1880); Welton v. Missouri, 91 U. S. 275 (1876). The prohibition against discriminatory treatment of interstate commerce follows inexorably from the basic purpose of the Clause. Permitting the individual States to enact laws that favor local enterprises at the expense of out-of-state businesses "would invite a multiplication of preferential trade areas destructive" of the free trade which the Clause protects. Dean Milk Co. v. Madison, 340 U. S. 349, 340 U. S. 356 (1951).Although apparently accepting the teaching of the prior Page 429 U. S. 330 cases, the Court Appeals seemed to view § 270-a as "compensatory legislation" enacted to "neutralize" the competitive advantage § 270 conferred on stock exchanges outside New York. Thus, it analogized the New York statute to state use taxes which have survived Commerce Clause challenges. 37 N.Y.2d at 542, 337 N.E.2d at 762. The statute will not support this characterization.Prior to the 1968 amendment, the New York transfer tax was neutral as to in-state and out-of-state sales. An in-state transfer or delivery of securities triggered the tax, and the burden fell equally on all transactions, regardless of the situs of sale. Thus, the choice of an exchange for the sale of securities that would be transferred or delivered in New York was not influenced by the transfer tax; wherever the sale was made, tax liability would arise. The flow of interstate commerce in securities was channeled neither into nor out of New York by the state tax. [Footnote 11]Section 270-a upset this equilibrium. After the amendment took effect, a nonresident contemplating the sale of securities that would be delivered or transferred in New York faced two possible tax burdens. If he elected to sell on an out-of-state exchange, the higher rates of § 270 applied without limitation on the total tax liability; if he sold the securities on a New York exchange, the one-half rate of § 270-a Page 429 U. S. 331 applied and then only up to a $350 tax liability. Similarly, residents engaging in large block transactions on the New York exchanges were subject to a maximum tax levy of $350; but if they sold out-of-State, their tax bill would be limited only by the number of shares sold. Thus, under § 270-a, the choice of exchange by all nonresidents and by residents engaging in large transactions is not made solely on the basis of nontax criteria. Because of the delivery or transfer in New York, the seller cannot escape tax liability by selling out of State, but he can substantially reduce his liability by selling in State. The obvious effect of the tax is to extend a financial advantage to sales on the New York exchanges at the expense of the regional exchanges. Rather than "compensating" New York for a supposed competitive disadvantage resulting from § 270, the amendment forecloses tax-neutral decisions and creates both an advantage for the exchanges in New York and a discriminatory burden on commerce to its sister States.Equal treatment of interstate commerce, lacking in § 270-a, has been the common theme running through the cases in which this Court has sustained "compensating," state use taxes. In Henneford v. Silas Mason Co., 300 U. S. 577 (1937), Washington imposed a 2% sales tax on all goods sold at retail in the State. Since the sales tax would have the effect of encouraging residents to purchase at out-of-state stores, Washington also imposed a 2% "compensating tax" on the use of goods within the State. The use tax did not apply, however, when the article had already been subjected to a tax equal to or greater than 2%. The effect of this constitutional tax system was nondiscriminatory treatment of in-state and out-of-state purchases:"Equality exists when the chattel subjected to the use tax is bought in another state and then carried into Washington. It exists when the imported chattel is shipped from the state of origin under an order received Page 429 U. S. 332 directly from the state of destination. In each situation, the burden borne by the owner is balanced by an equal burden where the sale is strictly local."Id. at 300 U. S. 584. A similar use-sales-tax structure was sustained in General Trading Co. v. Tax Comm'n, 322 U. S. 335 (1944), because the "tax [was] what it professes to be -- a nondiscriminatory excise laid on all personal property" regardless of where the sale was made. Id. at 322 U. S. 338. See also International Harvester Co. v. Department of Treasury, 322 U. S. 340 (1944); Alaska v. Arctic Maid, 366 U. S. 199, 366 U. S. 204 (1961). In all the use tax cases, an individual faced with the choice of an in-state or out-of-state purchase could make that choice without regard to the tax consequences. If he purchased in State, he paid a sales tax; if he purchased out of State but carried the article back for use in State, he paid a use tax of the same amount. The taxes treated both transactions in the same manner.Because it imposes a greater tax liability on out-of-state sales than on in-state sales, the New York transfer tax, as amended by § 270-a, falls short of the substantially evenhanded treatment demanded by the Commerce Clause. The extra tax burden on out-of-state sales created by § 270-a is not what the New York Court of Appeals holds it out to be; it neither compensates for a like burden on in-state sales nor neutralizes an economic advantage previously enjoyed by the appellant Exchanges because of § 270. [Footnote 12] Page 429 U. S. 333IIIThe court below further attempted to save § 27a from invalidation under the Commerce Clause by finding that the effect the amendment might have on sales by residents and nonresidents did not amount to unconstitutional discrimination. As to New York residents, the court found that the higher tax on large out-of-state sales would have no "practical" effect, since "it is more than likely . . . that the sale would be made on a New York exchange in any event." 37 N.Y.2d at 543, 337 N.E.2d at 762. As to the discriminatory tax burden on all out-of-state sales by nonresidents, the court observed that, because New York sales by nonresidents also involve interstate commerce, § 27a does not discriminate against interstate commerce in favor of intrastate commerce; rather, it discriminates between two kinds of interstate transactions. Ibid. Although it did not so state, the Court of Appeals apparently believed that such discrimination was permissible under the Commerce Clause. We disagree with the Court of Appeals with respect to both residents and nonresidents.The maximum tax discrimination against out-of-state sales by residents is not triggered until the taxed transaction involves a substantial number of shares. Investors, institutional and individual, engaging in such large-block transactions can be expected to choose an exchange on the basis of services, prices, and other market conditions, rather than geographical proximity. Even a small difference in price (of either the securities or the sales services) can, in a large sale, provide a substantial enough additional profit to outweigh whatever additional transaction costs might be incurred from trading on an out-of-state exchange. The New York Legislature, Page 429 U. S. 334 in its legislative findings in connection with § 270-a, recognized that securities transactions by residents were not being conducted only on the New York exchanges; it therefore considered the amendment necessary to "[retain] within the state of New York . . . sales involving large blocks of stock." If, as the Court of Appeals assumed, it were "more than likely" that residents would sell in New York, there would have been no reason for the legislature to reduce the tax burden on in-state sales by residents in order to retain their sales in New York. Nor is the discriminatory burden of the maximum tax insubstantial. On a transaction of 30,000 shares selling at $20 or more, for example, the tax on an in-state sale is the maximum $350, while an out-of-state sale is taxed $1,500. The disparity between the two taxes increases with the number of shares sold. Such a large tax penalty for trading on out-of-state markets cannot be deemed to have no practical effect on interstate commerce. [Footnote 13]Both the maximum tax and the rate reduction provisions of § 27a discriminate against out-of-state sales by nonresidents. The fact that this discrimination is in favor of nonresident, in-state sales which may also be considered as interstate commerce, see Freeman v. Hewit, 329 U.S. at 329 U. S. 258-259, does not save § 27a from the restrictions of the Commerce Clause. A State may no more use discriminatory taxes to assure that nonresidents direct their commerce to businesses Page 429 U. S. 335 within the State than to assure that residents trade only in intrastate commerce. As we stated at the outset, the fundamental purpose of the Clause is to assure that there be free trade among the several States. This free trade purpose is not confined to the freedom to trade with only one State; it is a freedom to trade with any State, to engage in commerce across all state boundaries.There has been no prior occasion expressly to address the question whether a State may tax in a manner that discriminates between two types of interstate transactions in order to favor local commercial interests over out-of-state businesses, but the clear import of our Commerce Clause cases is that such discrimination is constitutionally impermissible. Guy v. Baltimore, 100 U.S. at 100 U. S. 443, held that no State, consistent with the Commerce Clause, may "build up its domestic commerce by means of unequal and oppressive burdens upon the industry and business of other States"; and in Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511 (1935), New York was prohibited from regulating the price of out-of-state milk purchases because the effect of that regulation would be "to suppress or mitigate the consequences of competition between the states." Id. at 294 U. S. 522. [Footnote 14] More recently, we noted that Page 429 U. S. 336 this"Court has viewed with particular suspicion state statutes requiring business operations to be performed in the home State that could more efficiently be performed elsewhere. Even where the State is pursuing a clearly legitimate local interest, this particular burden on commerce has been declared to be virtually per se illegal."Pike v. Bruce Church, Inc., 397 U. S. 137, 397 U. S. 145 (1970). Cf. Halliburton Oil Well Co. v. Reily, 373 U.S. at 373 U. S. 72-73.Although the statutes at issue in those cases had the primary effect of prohibiting or discriminatorily burdening a resident's purchase of out-of-state goods and services, the constitutional policy of free trade and competition that led to their demise is equally fatal to the New York transfer tax. New York's discriminatory treatment of out-of-state sales is made possible only because some other taxable event (transfer, delivery, or agreement to sell) takes place in the State. Thus, the State is using its power to tax an in-state operation as a means of "requiring [other] business operations to be performed in the home State." As a consequence, the flow of securities sales is diverted from the most economically efficient channels and directed to New York. This diversion of interstate commerce and diminution of free competition in securities sales are wholly inconsistent with the free trade purpose of the Commerce Clause.IVOur decision today does not prevent the States from structuring their tax systems to encourage the growth and development of intrastate commerce and industry. Nor do we hold that a State may not compete with other States for a share Page 429 U. S. 337 of interstate commerce; such competition lies at the heart of a free trade policy. We hold only that in the process of competition no State may discriminatorily tax the products manufactured or the business operations performed in any other State.The judgment of the New York Court of Appeals is reversed, and the case remanded for further proceedings not inconsistent with this opinion. [Footnote 15]It is so ordered

U.S. Supreme CourtBoston Stock Exchange v. State Tax Comm'n, 429 U.S. 318 (1977)Boston Stock Exchange v. State Tax CommissionNo. 75-1019Argued November 2, 1976Decided January 12, 1977429 U.S. 318SyllabusA New York statute imposing a transfer tax on securities transactions, if part of the transaction occurs in New York, was amended in 1968 so that transactions involving an out-of-state sale are taxed more heavily than most transactions involving a sale within the State. The amendment provides for two deviations from the prior uniform application of the statute under which a transaction involving a sale and transfer of shares in New York was taxed the same as a transaction involving an in-state transfer but an out-of-state sale: (1) transactions by nonresidents of New York are afforded a 50% reduction in the tax rate when the transaction involves an in-state sale; and (2) the total tax liability of any taxpayer (resident or nonresident) is limited to $350 for a single transaction when it involves a New York sale. The purpose of the amendment was to provide relief from the competitive disadvantage thought to be created by the transfer tax for New York stock exchanges, as against out-of-state exchanges. Appellant "regional" stock exchanges brought action in state court against appellee State Tax Commission and its members challenging the constitutionality of the 1968 amendment under the Commerce Clause. The trial court denied the Commission's motion to dismiss, but on appeal the amendment was declared to be constitutional.Held: The amendment discriminates against interstate commerce in violation of the Commerce Clause. Pp. 429 U. S. 328-337.(a) No State, consistent with the Commerce Clause, may "impose a tax which discriminates against interstate commerce . . . by providing a direct commercial advantage to local business," Northwestern Cement Co. v. Minnesota, 358 U. S. 450, 358 U. S. 458. P. 429 U.S. 329.(b) Because it imposes a greater tax liability on out-of-state sales than on in-state sales, the transfer tax, as amended, falls short of the substantially evenhanded treatment demanded by the Commerce Clause, the extra tax burden on out-of-state sales neither compensating for a like burden on in-state sales nor neutralizing an economic advantage previously enjoyed by appellant exchanges as a result of the unamended statute. Pp. 429 U.S. 329-332.(c) The diversion of interstate commerce and diminution of free Page 429 U. S. 319 competition in securities, sales created by the 1968 amendment are wholly inconsistent with the free trade purpose of the Commerce Clause. With respect to residents, the discriminatory burden of the maximum tax on out-of-state sales promotes intrastate transactions at the expense of interstate commerce to out-of-state exchanges. With respect to nonresidents, both the maximum tax and the rate reduction provisions discriminate against out-of-state sales, and the fact that this discrimination is in favor of nonresident, in-state sales which may also be considered as interstate commerce, does not save the amendment from Commerce Clause restrictions. Pp. 429 U. S. 333-336.37 N.Y.2d 535, 337 N.E.2d 758, reversed and remanded.WHITE, J., delivered the opinion for a unanimous Court.

1989_88-1569

Justice MARSHALL delivered the opinion of the Court.In this appeal, we must determine whether § 54(1) of the Michigan Campaign Finance Act violates either the First or the Fourteenth Amendment to the Constitution. Section 54(1) prohibits corporations from using corporate treasury funds for independent expenditures in support of or in opposition to any candidate in elections for state office. Mich.Comp. Laws § 169.254(1) (1979). Corporations Page 494 U. S. 655 are allowed, however, to make such expenditures from segregated funds used solely for political purposes. § 169.255(1). In response to a challenge brought by the Michigan State Chamber of Commerce, the Sixth Circuit held that § 54(1) could not be applied to the Chamber, a Michigan nonprofit corporation, without violating the First Amendment. 856 F.2d 783 (1988). Although we agree that expressive rights are implicated in this case, we hold that application of § 54(1) to the Chamber is constitutional because the provision is narrowly tailored to serve a compelling state interest. Accordingly, we reverse the judgment of the Court of Appeals.ISection 54(1) of the Michigan Campaign Finance Act prohibits corporations from making contributions and independent expenditures in connection with state candidate elections. [Footnote 1] The issue before us is only the constitutionality of the State's ban on independent expenditures. The Act defines "expenditure" as"a payment, donation, loan, pledge, or promise of payment of money or anything of ascertainable monetary value for goods, materials, services, or facilities in assistance of, or in opposition to, the nomination or election of a candidate."§ 169.206(1). An expenditure is considered independent if it is "not made at the direction of, or under the control of, another person and if the expenditure is not a contribution to a committee." § 169.209(1); see § 169.203(4) (defining "committee" as a group that "receives contributions or makes expenditures for the purpose of influencing or attempting to influence the action of the voters for or against the nomination or election of a candidate"). The Act exempts from this general prohibition against corporate political spending any expenditure made from a segregated fund. Page 494 U. S. 656 § 169.255(1). A corporation may solicit contributions to its political fund only from an enumerated list of persons associated with the corporation. See §§ 169.255(2), (3).The Michigan State Chamber of Commerce, a nonprofit Michigan corporation, challenges the constitutionality of this statutory scheme. The Chamber comprises more than 8,000 members, three-quarters of whom are for-profit corporations. The Chamber's general treasury is funded through annual dues required of all members. Its purposes, as set out in the bylaws, are to promote economic conditions favorable to private enterprise; to analyze, compile, and disseminate information about laws of interest to the business community and to publicize to the government the views of the business community on such matters; to train and educate its members; to foster ethical business practices; to collect data on and investigate matters of social, civic, and economic importance to the State; to receive contributions and to make expenditures for political purposes and to perform any other lawful political activity; and to coordinate activities with other similar organizations.In June 1985, Michigan scheduled a special election to fill a vacancy in the Michigan House of Representatives. Although the Chamber had established and funded a separate political fund, it sought to use its general treasury funds to place in a local newspaper an advertisement supporting a specific candidate. As the Act made such an expenditure punishable as a felony, see § 169.254(5), the Chamber brought suit in District Court for injunctive relief against enforcement of the Act, arguing that the restriction on expenditures is unconstitutional under both the First and the Fourteenth Amendments.The District Court upheld the statute. 643 F. Supp. 397 (WD Mich.1986). The Sixth Circuit reversed, reasoning that the expenditure restrictions, as applied to the Chamber, violated the First Amendment. We noted probable jurisdiction, 490 U.S. 1045 (1989), and now reverse. Page 494 U. S. 657IITo determine whether Michigan's restrictions on corporate political expenditures may constitutionally be applied to the Chamber, we must ascertain whether they burden the exercise of political speech and, if they do, whether they are narrowly tailored to serve a compelling state interest. Buckley v. Valeo, 424 U. S. 1, 424 U. S. 44-45 (1976) (per curiam). Certainly, the use of funds to support a political candidate is "speech" independent campaign expenditures constitute "political expression at the core of our electoral process and of the First Amendment freedoms.'" Id. at 424 U. S. 39 (quoting Williams v. Rhodes, 393 U. S. 23, 393 U. S. 32 (1968)). The mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment. See, e.g., First National Bank of Boston v. Bellotti, 435 U. S. 765, 435 U. S. 777 (1978).This Court concluded in FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL), that a federal statute requiring corporations to make independent political expenditures only through special segregated funds, 2 U.S.C. § 441b, burdens corporate freedom of expression. MCFL, 479 U.S. at 479 U. S. 252 (plurality opinion); id. at 479 U. S. 266 (O'CONNOR, J., concurring in part and concurring in judgment). The Court reasoned that the small nonprofit corporation in that case would face certain organizational and financial hurdles in establishing and administering a segregated political fund. For example, the statute required the corporation to appoint a treasurer for its segregated fund, keep records of all contributions, file a statement of organization containing information about the fund, and update that statement periodically. Id. at 479 U. S. 253 (plurality opinion). In addition, the corporation was permitted to solicit contributions to its segregated fund only from "members," which did not include persons who merely contributed to or indicated support for the organization. Id. at 479 U. S. 254 (plurality opinion). Page 494 U. S. 658 These hurdles "impose[d] administrative costs that many small entities [might] be unable to bear" and "create[d] a disincentive for such organizations to engage in political speech." Ibid; see also id. at 479 U. S. 265-266 (O'CONNOR, J ).Despite the Chamber's success in administering its separate political fund, see, e.g., Tr. 443 (Chamber expected to have over $140,000 in its segregated fund available for use in the 1986 elections), Michigan's segregated fund requirement still burdens the Chamber's exercise of expression because "the corporation is not free to use its general funds for campaign advocacy purposes ." MCFL, supra, at 479 U. S. 252 (plurality opinion). The Act imposes requirements similar to those in the federal statute involved in MCFL: a segregated fund must have a treasurer, § 169.221, and its administrators must keep detailed accounts of contributions, § 169.224, and file with state officials a statement of organization, ibid. In addition, a nonprofit corporation like the Chamber may solicit contributions to its political fund only from members, stockholders of members, officers or directors of members, and the spouses of any of these persons. § 169.255. Although these requirements do not stifle corporate speech entirely, they do burden expressive activity. See MCFL, 479 U.S. at 479 U. S. 252 (plurality opinion); id. at 479 U. S. 266 (O'CONNOR, J.). Thus, they must be justified by a compelling state interest.BThe State contends that the unique legal and economic characteristics of corporations necessitate some regulation of their political expenditures to avoid corruption or the appearance of corruption. See FEC v. National Conservative Political Action Comm., 470 U. S. 480, 470 U. S. 496-497 (1985) (NCPAC) ("[P]reventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances"). State law grants corporations special advantages -- such as limited liability, perpetual life, and favorable Page 494 U. S. 659 treatment of the accumulation and distribution of assets -- that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders' investments. These state-created advantages not only allow corporations to play a dominant role in the nation's economy, but also permit them to use "resources amassed in the economic marketplace" to obtain "an unfair advantage in the political marketplace. " MCFL, 479 U.S. at 479 U. S. 257. As the Court explained in MCFL, the political advantage of corporations is unfair because"[t]he resources in the treasury of a business corporation . . . are not an indication of popular support for the corporation's political ideas. They reject instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas."Id. at 479 U. S. 258. We therefore have recognized that"the compelling governmental interest in preventing corruption support[s] the restriction of the influence of political war chests funneled through the corporate form."NCPAC, supra, 470 U.S. at 470 U. S. 500-501; see also MCFL, supra, 479 U.S. at 479 U. S. 257.The Chamber argues that this concern about corporate domination of the political process is insufficient to justify restrictions on independent expenditures. Although this Court has distinguished these expenditures from direct contributions in the context of federal laws regulating individual donors, Buckley, 424 U.S. at 424 U. S. 47, it has also recognized that a legislature might demonstrate a danger of real or apparent corruption posed by such expenditures when made by corporations to influence candidate elections, Bellotti, 435 U.S. at 435 U. S. 788, n. 26. Regardless of whether this danger of "financial quid pro quo " corruption, see NCPAC, supra, 470 U.S. at 470 U. S. 497; post at 494 U. S. 702-705 (KENNEDY, J., dissenting), may be sufficient to justify a restriction on independent expenditures, Michigan's regulation Page 494 U. S. 660 aims at a different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas. See supra at 494 U. S. 658-659. The Act does not attempt "to equalize the relative influence of speakers on elections," post at 494 U. S. 705 (KENNEDY, J., dissenting); see also post at 494 U. S. 684 (SCALIA, J., dissenting); rather, it ensures that expenditures reflect actual public support for the political ideas espoused by corporations. We emphasize that the mere fact that corporations may accumulate large amounts of wealth is not the justification for § 54; rather, the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures. Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions. We therefore hold that the State has articulated a sufficiently compelling rationale to support its restriction on independent expenditures by corporations.CWe next turn to the question whether the Act is sufficiently narrowly tailored to achieve its goal. We find that the Act is precisely targeted to eliminate the distortion caused by corporate spending while also allowing corporations to express their political views. Contrary to the dissents' critical assumptions, see post at 494 U. S. 698, 494 U. S. 699, 494 U. S. 706 (KENNEDY, J., dissenting); post at 494 U. S. 680, 494 U. S. 682-683 (SCALIA, J., dissenting), the Act does not impose an absolute ban on all forms of corporate political spending, but permits corporations to make independent political expenditures through separate segregated funds. Because persons contributing to such funds understand that their money will be used solely for political purposes, the speech generated accurately reflects contributors' support Page 494 U. S. 661 for the corporation's political views. See MCFL, supra, 479 U.S. at 479 U. S. 258.The Chamber argues that § 54(1) is substantially overinclusive, because it includes within its scope closely held corporations that do not possess vast reservoirs of capital. We rejected a similar argument in FEC v. National Right to Work Committee, 459 U. S. 197 (1982) (NRWC), in the context of federal restrictions on the persons from whom corporations could solicit contributions to their segregated funds. The Court found that the federal campaign statute, 2 U.S.C. § 441b,"reflect[ed] a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation. While § 441b restricts the solicitation of corporations and labor unions without great financial resources, as well as those more fortunately situated, we accept Congress' judgment that it is the potential for such influence that demands regulation."459 U.S. at 459 U. S. 209-210 (citation omitted; emphasis added). Although some closely held corporations, just as some publicly held ones, may not have accumulated significant amounts of wealth, they receive from the State the special benefits conferred by the corporate structure and present the potential for distorting the political process. This potential for distortion justifies § 54(1)'s general applicability to all corporations. The section therefore is not substantially overbroad.IIIThe Chamber contends that even if the Campaign Finance Act is constitutional with respect to for-profit corporations, it nonetheless cannot be applied to a nonprofit ideological corporation like a chamber of commerce. In MCFL, we held that the nonprofit organization there had"features more akin to voluntary political associations than business firms, and therefore should not have to bear burdens on independent spending solely because of [its] incorporated status."479 U.S. at 479 U. S. 263. In reaching that conclusion, we enumerated Page 494 U. S. 662 three characteristics of the corporation that were "essential" to our holding. Ibid. Because the Chamber does not share these crucial features, the Constitution does not require that it be exempted from the generally applicable provisions of § 54(1).The first characteristic of Massachusetts Citizens for Life, Inc., that distinguished it from ordinary business corporations was that the organization "was formed for the express purpose of promoting political ideas, and cannot engage in business activities." Id. at 479 U. S. 264. Its articles of incorporation indicated that its purpose was"[t]o foster respect for human life and to defend the right to life of all human beings, born and unborn, through educational, political and other forms of activities,"id. at 479 U. S. 241-242, and all of the organization's activities were "designed to further its agenda," id. at 242. MCFL's narrow political focus thus "ensure[d] that [its] political resources reflect[ed] political support." Id. at 479 U. S. 264.In contrast, the Chamber's bylaws set forth more varied purposes, see supra at 494 U. S. 656, several of which are not inherently political. For instance, the Chamber compiles and disseminates information relating to social, civic, and economic conditions, trains and educates its members, and promotes ethical business practices. Unlike MCFL's, the Chamber's educational activities are not expressly tied to political goals; many of its seminars, conventions, and publications are politically neutral and focus on business and economic issues. The Chamber's President and Chief Executive Officer stated that one of the corporation's main purposes is to provide"service to [its] membership that includes everything from group insurance to educational seminars, and . . . litigation activities on behalf of the business community."Deposition of E. James Barrett, Nov. 12, 1985, p. 11. See also PR Newswire, July 21, 1989 (Chamber cosponsored the Automotive Management Briefing Seminar); PR Newswire, May 9, 1989 (Chamber cosponsored the Michigan New Product Awards Page 494 U. S. 663 competition); PR Newswire, June 14, 1988 (Chamber sponsored seminar on product liability losses and lawsuits); PR Newswire, Feb. 4, 1988 (Chamber cosponsored outreach program to increase awareness of investment opportunities in the Caribbean Basin). The Chamber's nonpolitical activities therefore suffice to distinguish it from MCFL in the context of this characteristic.We described the second feature of MCFL as the absence of "shareholders or other persons affiliated so as to have a claim on its assets or earnings. This ensures that persons connected with the organization will have no economic disincentive for disassociating with it if they disagree with its political activity." 479 U.S. at 479 U. S. 264. Although the Chamber also lacks shareholders, many of its members may be similarly reluctant to withdraw as members even if they disagree with the Chamber's political expression, because they wish to benefit from the Chamber's nonpolitical programs and to establish contacts with other members of the business community. The Chamber's political agenda is sufficiently distinct from its educational and outreach programs that members who disagree with the former may continue to pay dues to participate in the latter. Justice KENNEDY ignores these disincentives for withdrawing as a member of the Chamber, stating only that "[o]ne need not become a member . . . to earn a living." Post at 494 U. S. 710 (KENNEDY, J., dissenting). Certainly, members would be disinclined to terminate their involvement with the organization on the basis of less extreme disincentives than the loss of employment. Thus, we are persuaded that the Chamber's members are more similar to shareholders of a business corporation than to the members of MCFL in this respect. [Footnote 2] Page 494 U. S. 664The final characteristic upon which we relied in MCFL was the organization's independence from the influence of business corporations. On this score, the Chamber differs most greatly from the Massachusetts organization. MCFL was not established by, and had a policy of not accepting contributions from, business corporations. Thus it could not "serv[e] as [a] condui[t] for the type of direct spending that creates a threat to the political marketplace." Ibid. In striking contrast, more than three-quarters of the Chamber's members are business corporations, whose political contributions and expenditures can constitutionally be regulated by the State. See Buckley v. Valeo, 424 U.S. at 424 U. S. 29 (upholding restrictions on political contributions); supra, at 494 U. S. 658-661 (regarding independent expenditures). As we read the Act, a corporation's payments into the Chamber's general treasury would not be considered payments to influence an election, so they would not be "contributions" or "expenditures," see §§ 169.204(1), 169.206, and would not be subject to the Act's limitations. Business corporations therefore could circumvent the Act's restrictions by funneling money through the Chamber's general treasury. [Footnote 3] Because the Chamber accepts money from for-profit corporations, it could, absent application of § 54(1), serve as a conduit for corporate political spending. In sum, the Chamber does not possess the features Page 494 U. S. 665 that would compel the State to exempt it from restrictions on independent political expenditures.IVThe Chamber also attacks § 54(1) as under-inclusive because it does not regulate the independent expenditures of unincorporated labor unions. [Footnote 4] I Whereas unincorporated unions, and indeed individuals, may be able to amass large treasuries, they do so without the significant state-conferred advantages of the corporate structure; corporations are "by far the most prominent example of entities that enjoy legal advantages enhancing their ability to accumulate wealth." MCFL, 479 U.S. at 479 U. S. 258, n. 11. The desire to counterbalance those advantages unique to the corporate form is the State's compelling interest in this case; thus, excluding from the statute's coverage unincorporated entities that also have the capacity to accumulate wealth "does not undermine its justification for regulating corporations." Ibid.Moreover, labor unions differ from corporations in that union members who disagree with a union's political activities need not give up full membership in the organization to avoid supporting its political activities. Although a union and an employer may require that all bargaining unit employees become union members, a union may not compel those employees to support financially "union activities beyond those germane to collective bargaining, contract administration, and grievance adjustment." Communications Workers of Am. v. Beck, 487 U. S. 735, 487 U. S. 745 (1988). See also Abood v. Detroit Bd. of Educ., 431 U. S. 209 (1977) (holding that compelling nonmember employees to contribute to union's political activities infringes employees' First Amendment rights). An employee who objects to a union's political activities thus can decline to contribute to those activities, while continuing to enjoy the Page 494 U. S. 666 benefits derived from the union's performance of its duties as the exclusive representative of the bargaining unit on labor-management issues. As a result, the funds available for a union's political activities more accurately reflects members' support for the organization's political views than does a corporation's general treasury. Michigan's decision to exclude unincorporated labor unions from the scope of § 54(1) is therefore justified by the crucial differences between unions and corporations.VBecause we hold that § 54(1) does not violate the First Amendment, we must address the Chamber's contention that the provision infringes its rights under the Fourteenth Amendment. The Chamber argues that the statute treats similarly situated entities unequally. Specifically, it contends that the State should also restrict the independent expenditures of unincorporated associations with the ability to accumulate large treasuries and of corporations engaged in the media business.Because the right to engage in political expression is fundamental to our constitutional system, statutory classifications impinging upon that right must be narrowly tailored to serve a compelling governmental interest. Police Department of Chicago v. Mosley, 408 U. S. 92, 408 U. S. 101 (1972). We find that, even under such strict scrutiny, the statute's classifications pass muster under the Equal Protection Clause. As we explained in the context of our discussions of whether the statute was overinclusive, supra at 494 U. S. 660-661, or under-inclusive, supra at 494 U. S. 665, the State's decision to regulate only corporations is precisely tailored to serve the compelling state interest of eliminating from the political process the corrosive effect of political "war chests" amassed with the aid of the legal advantages given to corporations.Similarly, we find that the Act's exemption of media corporations from the expenditure restrictions does not render the statute unconstitutional. The "media exception" excludes Page 494 U. S. 667 from the definition of "expenditure" any"expenditure by a broadcasting station, newspaper, magazine, or other periodical or publication for any news story, commentary, or editorial in support of or opposition to a candidate for elective office . . . in the regular course of publication or broadcasting,"§ 169.206(3)(d). [Footnote 5] The Court of Appeals did not address the Chamber's equal protection argument because it found that the application of § 54(1) to the Chamber violates the First Amendment. See 856 F.2d at 790. The District Court, however, appeared to hold that the media exception does not implicate the Equal Protection Clause because "[a]ny corporation . . . may avail itself of the exemption" by entering the news broadcasting or publishing business. 643 F. Supp. at 405. We are persuaded, however, that a Fourteenth Amendment analysis is necessary in this case. It is true that the exemption does not refer expressly to "media corporations." Nevertheless, the exception will undoubtedly result in the imposition of fewer restrictions on the expression of corporations that are in the media business. Thus, it cannot be regarded as neutral, and the distinction must be justified by a compelling state purpose.Although all corporations enjoy the same state-conferred benefits inherent in the corporate form, media corporations differ significantly from other corporations in that their resources are devoted to the collection of information and its dissemination to the public. We have consistently recognized the unique role that the press plays in "informing and educating the public, offering criticism, and providing a forum for discussion and debate." Bellotti, 435 U.S. at 435 U. S. 781. See also Mills v. Alabama, 384 U. S. 214, 384 U. S. 219 (1966) Page 494 U. S. 668 ("[T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve"). The Act's definition of "expenditure," § 169.206, conceivably could be interpreted to encompass election-related news stories and editorials. The Act's restrictions on independent expenditures therefore might discourage incorporated news broadcasters or publishers from serving their crucial societal role. The media exception ensures that the Act does not hinder or prevent the institutional press from reporting on and publishing editorials about newsworthy events. Cf. H.R.Rep. No. 93-1239, p. 4 (1974) (explaining a similar federal media exception, 2 U.S.C. § 431(9)(B)(i), as "assur[ing] the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns"); 15 U.S.C. §§ 1801-1804 (enacting a limited exemption from the antitrust laws for newspapers in part because of the recognition of the special role of the press). A valid distinction thus exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public. Although the press' unique societal role may not entitle the press to greater protection under the Constitution, Bellotti, supra, 435 U.S. at 435 U. S. 782, and n. 18, it does provide a compelling reason for the State to exempt media corporations from the scope of political expenditure limitations. We therefore hold that the Act does not violate the Equal Protection Clause.VIMichigan identified as a serious danger the significant possibility that corporate political expenditures will undermine the integrity of the political process, and it has implemented a narrowly tailored solution to that problem. By requiring corporations to make all independent political expenditures Page 494 U. S. 669 through a separate fund made up of money solicited expressly for political purposes, the Michigan Campaign Finance Act reduces the threat that huge corporate treasuries amassed with the aid of favorable state laws will be used to influence unfairly the outcome of elections. The Michigan Chamber of Commerce does not exhibit the characteristics identified in MCFL that would require the State to exempt it from generally applicable restrictions on independent corporate expenditures. We therefore reverse the decision of the Court of Appeals.It is so ordered

U.S. Supreme CourtAustin v. Mich. Chamber of Comm., 494 U.S. 652 (1990)Austin v. Michigan Chamber of CommerceNo. 88-1569Argued Oct. 31, 1989Decided March 27, 1990494 U.S. 652SyllabusAppellee Michigan State Chamber of Commerce is a nonprofit corporation, whose bylaws set forth both political and nonpolitical purposes. Its general treasury is funded through annual dues required of all members, three-quarters of whom are for-profit corporations. Section 54(1) of the Michigan Campaign Finance Act prohibits corporations, excluding media corporations, from using general treasury funds for, inter alia, independent expenditures in connection with state candidate elections. However, they may make such expenditures from segregated funds used solely for political purposes. Because the Chamber wished to use general treasury funds to place a local newspaper advertisement in support of a specific candidate for state office, it brought suit in the Federal District Court for injunctive relief against § 54(1)'s enforcement, arguing that the expenditure restrictions are unconstitutional under the First and Fourteenth Amendments. The court upheld the section, but the Court of Appeals reversed, reasoning that, as applied to the Chamber, § 54(1) violated the First Amendment.Held:1. Section 54(1) does not violate the First Amendment. Pp. 494 U. S. 657-666.(a) Although § 54(1)'s requirements burden the Chamber's exercise of political expression, see FEC v. Massachusetts Citizens for Life, Inc., 479 U. S. 238, 479 U. S. 252 (MCFL), they are justified by a compelling state interest: preventing corruption or the appearance of corruption in the political arena by reducing the threat that huge corporate treasuries, which are amassed with the aid of favorable state laws and have little or no correlation to the public's support for the corporation's political ideas, will be used to influence unfairly election outcomes. Pp. 494 U. S. 657-660(b) Section 54(1) is sufficiently narrowly tailored to achieve its goal, because it is precisely targeted to eliminate the distortion caused by corporate spending while also allowing corporations to express their political views by making expenditures through separate segregated funds. Because persons who contribute to segregated funds understand that their money will be used solely for political purposes, the speech generated accurately reflects contributors' support for the corporation's political views. The fact that § 54(1) covers closely held corporations that Page 494 U. S. 653 do not possess vast reservoirs of capital does not make it substantially overinclusive, because all corporations receive the special benefits conferred by the corporate form and thus present the potential for distorting the political process. Cf. FEC v. National Right to Work Committee, 459 U. S. 197, 459 U. S. 209-210. Pp. 494 U. S. 660-661.(c) There is no merit to the Chamber's argument that, even if § 54(1) is constitutional with respect to for-profit corporations, it cannot be applied to a nonprofit ideological corporation such as itself. The Chamber does not exhibit the crucial features identified in MCFL, supra, that would require the State to exempt it from independent spending burdens as a nonprofit corporation more akin to a voluntary political association than a business firm. MCFL's narrow focus on the promotion of political ideas ensured that its resources reflected political support, while the Chamber's more varied bylaws do not. Additionally, unlike MCFL members, the Chamber's members are similar to shareholders -- who have an economic disincentive for disassociating with a corporation even if they disagree with its political activity -- in that they may be reluctant to withdraw from the Chamber because they wish to benefit from its nonpolitical programs and to establish contacts with other members of the business community. Also in contrast to MCFL, which took no contributions from business corporations, more than three-quarters of the Chamber's members are business corporations, whose political contributions and expenditures can constitutionally be regulated by the State, and who thus could circumvent § 54(1)'s restrictions by funneling money through the Chamber's general treasury. Pp. 494 U. S. 661-665.(d) Section 54(1) is not rendered under-inclusive by its failure to regulate the independent expenditures of unincorporated labor unions that also have the capacity to accumulate wealth, because the exclusion does not undermine the State's compelling interest in regulating corporations whose unique form enhances such capacity. Moreover, because members who disagree with a union's political activities can decline to contribute to them without giving up other membership benefits, a union's political funds more accurately reflect members' support for the organization's political views than does a corporation's general treasury. Pp. 494 U. S. 665-666.2. Section 54(1) does not violate the Equal Protection Clause of the Fourteenth. Amendment. Even under strict scrutiny, its classifications pass muster. The State's decision to regulate corporations and not unincorporated associations is precisely tailored to serve its compelling interest. Similarly, the exemption of media corporations does not render the section unconstitutional. Restrictions on the expenditures of corporations whose resources are devoted to the collection and dissemination of information to the public might discourage news broadcasters or Page 494 U. S. 654 publishers from serving their crucial societal role of reporting on and publishing editorials about newsworthy events; thus, their exemption from the section's restrictions is justified. Pp. 494 U. S. 666-668.856 F.2d 783 (CA6 1988), reversed.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, BLACKMUN, and STEVENS, JJ., joined. BRENNAN, J., post, p. 494 U. S. 669, and STEVENS, J., post, p. 494 U. S. 678, filed concurring opinions. SCALIA, J., filed a dissenting opinion, post, p. 494 U. S. 679. KENNEDY, J., filed a dissenting opinion, in which O'CONNOR and SCALIA, JJ., joined, post, p. 494 U. S. 695.

1983_82-1248

JUSTICE REHNQUIST delivered the opinion of the Court.Section 320.5(3)(b) of the New York Family Court Act authorizes pretrial detention of an accused juvenile delinquent based on a finding that there is a "serious risk" that the child "may before the return date commit an act which if committed by an adult would constitute a crime." [Footnote 1] Appellees brought suit on behalf of a class of all juveniles detained pursuant Page 467 U. S. 256 to that provision. [Footnote 2] The District Court struck down § 320.5(3)(b) as permitting detention without due process of law and ordered the immediate release of all class members. United States ex rel. Martin v. Strasburg, 513 F. Supp. 691 (SDNY 1981). The Court of Appeals for the Second Circuit affirmed, holding the provision "unconstitutional as to all juveniles" because the statute is administered in such a way that"the detention period serves as punishment imposed without proof of guilt established according to the requisite constitutional standard."Martin v. Strasburg, 689 F.2d 365, 373-374 (1982). We noted probable jurisdiction, 460 U.S. 1079 (1983), [Footnote 3] and now reverse. We conclude that preventive detention under the FCA serves a legitimate state Page 467 U. S. 257 objective, and that the procedural protections afforded pretrial detainees by the New York statute satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.IAppellee Gregory Martin was arrested on December 13, 1977, and charged with first-degree robbery, second-degree assault, and criminal possession of a weapon based on an incident in which he, with two others, allegedly hit a youth on the head with a loaded gun and stole his jacket and sneakers. See Petitioners' Exhibit lb. Martin had possession of the gun when he was arrested. He was 14 years old at the time and, therefore, came within the jurisdiction of New York's Family Court. [Footnote 4] The incident occurred at 11:30 at night, and Martin lied to the police about where and with whom he lived. He was consequently detained overnight. [Footnote 5] Page 467 U. S. 258A petition of delinquency was filed, [Footnote 6] and Martin made his "initial appearance" in Family Court on December 14th, accompanied by his grandmother. [Footnote 7] The Family Court Judge, citing the possession of the loaded weapon, the false address given to the police, and the lateness of the hour as evidencing a lack of supervision, ordered Martin detained under § 320.5(3)(b) (at that time § 739(a)(ii); see n 2, supra). A probable cause hearing was held five days later, on December 19th, and probable cause was found to exist for all the crimes charged. At the factfinding hearing held December 27-29, Martin was found guilty on the robbery and criminal possession charges. He was adjudicated a delinquent and Page 467 U. S. 259 placed on two years' probation. [Footnote 8] He had been detained pursuant to § 320.5(3)(b), between the initial appearance and the completion of the factfinding hearing, for a total of 15 days.Appellees Luis Rosario and Kenneth Morgan, both age 14, were also ordered detained pending their factfinding hearings. Rosario was charged with attempted first-degree robbery and second-degree assault for an incident in which he, with four others, allegedly tried to rob two men, putting a gun to the head of one of them and beating both about the head with sticks. See Petitioners' Exhibit 2b. At the time of his initial appearance, on March 15, 1978, Rosario had another delinquency petition pending for knifing a student, and two prior petitions had been adjusted. [Footnote 9] Probable cause was Page 467 U. S. 260 found on March 21. On April 11, Rosario was released to his father, and the case was terminated without adjustment on September 25, 1978.Kenneth Morgan was charged with attempted robbery and attempted grand larceny for an incident in which he and another boy allegedly tried to steal money from a 14-year-old girl and her brother by threatening to blow their heads off and grabbing them to search their pockets. See Petitioners' Exhibit 3b. Morgan, like Rosario, was on release status on another petition (for robbery and criminal possession of stolen property) at the time of his initial appearance on March 27, 1978. He had been arrested four previous times, and his mother refused to come to court because he had been in trouble so often she did not want him home. A probable cause hearing was set for March 30, but was continued until April 4, when it was combined with a factfinding hearing. Morgan was found guilty of harassment and petit larceny, and was ordered placed with the Department of Social Services for 18 months. He was detained a total of eight days between his initial appearance and the factfinding hearing.On December 21, 1977, while still in preventive detention pending his factfinding hearing, Gregory Martin instituted a Page 467 U. S. 261 habeas corpus class action on behalf of "those persons who are, or during the pendency of this action will be, preventively detained pursuant to" § 320.5(3)(b) of the FCA. Rosario and Morgan were subsequently added as additional named plaintiffs. These three class representatives sought a declaratory judgment that § 320.5(3)(b) violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.In an unpublished opinion, the District Court certified the class. App. 20-32. [Footnote 10] The court also held that appellees were not required to exhaust their state remedies before resorting to federal habeas, because the highest state court had already rejected an identical challenge to the juvenile preventive detention statute. See People ex rel. Wayburn v. Schupf, 39 N.Y.2d 682, 350 N.E.2d 906 (1976). Exhaustion of state remedies, therefore, would be "an exercise in futility." App. 26.At trial, appellees offered in evidence the case histories of 34 members of the class, including the three named petitioners. Both parties presented some general statistics on the relation between pretrial detention and ultimate disposition. In addition, there was testimony concerning juvenile proceedings from a number of witnesses, including a legal aid attorney specializing in juvenile cases, a probation supervisor, a child psychologist, and a Family Court Judge. On the basis of this evidence, the District Court rejected the equal protection challenge as "insubstantial," [Footnote 11] but agreed with appellees that pretrial detention under the FCA violates due process. [Footnote 12] Page 467 U. S. 262 The court ordered that "all class members in custody pursuant to Family Court Act Section [320. 5(3)(b)] shall be released forthwith." Id. at 93.The Court of Appeals affirmed. After reviewing the trial record, the court opined that"the vast majority of juveniles detained under [§ 320.5(3)(b)] either have their petitions dismissed before an adjudication of delinquency or are released after adjudication."689 F.2d at 369. The court concluded from that fact that § 320.5(3)(b) "is utilized principally, not for preventive purposes, but to impose punishment for unadjudicated criminal acts." Id. at 372. The early release of so many of those detained contradicts any asserted need for pretrial confinement to protect the community. The court therefore concluded that § 320.5(3)(b) must be declared unconstitutional as to all juveniles. Individual litigation would be a practical impossibility, because the periods of detention are so short that the litigation is mooted before the merits are determined. [Footnote 13] Page 467 U. S. 263IIThere is no doubt that the Due Process Clause is applicable in juvenile proceedings. "The problem," we have stressed, "is to ascertain the precise impact of the due process requirement upon such proceedings." In re Gault, 387 U. S. 1, 387 U. S. 13-14 (1967). We have held that certain basic constitutional protections enjoyed by adults accused of crimes also apply to juveniles. See id. at 387 U. S. 31-57 (notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination); In re Winship, 397 U. S. 358 (1970) (proof beyond a reasonable doubt); Breed v. Jones, 421 U. S. 519 (1975) (double jeopardy). But the Constitution does not mandate elimination of all differences in the treatment of juveniles. See, e.g., McKeiver v. Pennsylvania, 403 U. S. 528 (1971) (no right to jury trial). The State has "a parens patriae interest in preserving and promoting the welfare of the child," Santosky v. Kramer, 455 U. S. 745, 455 U. S. 766 (1982), which makes a juvenile proceeding fundamentally different from an adult criminal trial. We have tried, therefore, to strike a balance -- to respect the "informality" and "flexibility" that characterize juvenile proceedings, In re Winship, supra, at 397 U. S. 366, and yet to ensure that such proceedings comport with the "fundamental fairness" demanded by the Due Process Clause. Breed v. Jones, supra, at 421 U. S. 531; McKeiver, supra, at 403 U. S. 543 (plurality opinion).The statutory provision at issue in these cases, § 320.5(3)(b), permits a brief pretrial detention based on a finding of a "serious risk" that an arrested juvenile may commit a crime before his return date. The question before us is whether preventive detention of juveniles pursuant to § 320.5(3)(b) is compatible with the "fundamental fairness" required by due process. Two separate inquiries are necessary to answer this question. First, does preventive detention under the Page 467 U. S. 264 New York statute serve a legitimate state objective? See Bell v. Wolfish, 441 U. S. 520, 441 U. S. 534, n. 15 (1979); Kennedy v. Mendoza-Martinez, 372 U. S. 144, 372 U. S. 168-169 (1963). And, second, are the procedural safeguards contained in the FCA adequate to authorize the pretrial detention of at least some juveniles charged with crimes? See Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 335 (1976); Gerstein v. Pugh, 420 U. S. 103, 420 U. S. 114 (1975).APreventive detention under the FCA is purportedly designed to protect the child and society from the potential consequences of his criminal acts. People ex rel. Wayburn v. Schupf, 39 N.Y.2d at 689-690, 350 N.E.2d at 910. When making any detention decision, the Family Court judge is specifically directed to consider the needs and best interests of the juvenile as well as the need for the protection of the community. FCA § 301.1; In re Craig S., 57 App.Div.2d 761, 394 N.Y.S.2d 200 (1977). In Bell v. Wolfish, supra, at 441 U. S. 534, n. 15, we left open the question whether any governmental objective other than ensuring a detainee's presence at trial may constitutionally justify pretrial detention. As an initial matter, therefore, we must decide whether, in the context of the juvenile system, the combined interest in protecting both the community and the juvenile himself from the consequences of future criminal conduct is sufficient to justify such detention.The "legitimate and compelling state interest" in protecting the community from crime cannot be doubted. De Veau v. Braisted, 363 U. S. 144, 363 U. S. 155 (1960). See also Terry v. Ohio, 392 U. S. 1, 392 U. S. 22 (1968). We have stressed before that crime prevention is "a weighty social objective," Brown v. Texas, 443 U. S. 47, 443 U. S. 52 (1979), and this interest persists undiluted in the juvenile context. See In re Gault, supra, at 387 U. S. 20, n. 26. The harm suffered by the victim of a crime is not dependent Page 467 U. S. 265 upon the age of the perpetrator. [Footnote 14] And the harm to society generally may even be greater in this context, given the high rate of recidivism among juveniles. In re Gault, supra, at 387 U. S. 22.The juvenile's countervailing interest in freedom from institutional restraints, even for the brief time involved here, is undoubtedly substantial as well. See In re Gault, supra, at 387 U. S. 27. But that interest must be qualified by the recognition that juveniles, unlike adults, are always in some form of custody. Lehman v. Lycoming County Children's Services, 458 U. S. 502, 458 U. S. 510-511 (1982); In re Gault, supra, at 387 U. S. 17. Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae. See State v. Gleason, 404 A.2d 573, 580 (Me.1979); People ex rel. Wayburn v. Schupf, supra, at 690, 350 N.E.2d at 910; Baker v. Smith, 477 S.W.2d 149, 150-151 (Ky.App.1971). In this respect, the juvenile's liberty interest may, in appropriate circumstances, be subordinated to the State's "parens patriae interest in preserving and promoting the welfare of the child." Santosky v. Kramer, supra, at 455 U. S. 766.The New York Court of Appeals, in upholding the statute at issue here, stressed at some length "the desirability of protecting the juvenile from his own folly." People ex rel. Wayburn v. Schupf, supra, at 688-689, 350 N.E.2d at 909. [Footnote 15] Page 467 U. S. 266 Society has a legitimate interest in protecting a juvenile from the consequences of his criminal activity -- both from potential physical injury which may be suffered when a victim fights back or a policeman attempts to make an arrest and from the downward spiral of criminal activity into which peer pressure may lead the child. See L.O.W. v. District Court of Arapahoe, 623 P.2d 1253, 1258-1259 (Colo.1981); Morris v. D'Amario, 416 A.2d 137, 140 (R.I.1980). See also Eddings v. Oklahoma, 455 U. S. 104, 455 U. S. 115 (1982) (minority "is a time and condition of life when a person may be most susceptible to influence and to psychological damage"); Bellotti v. Baird, 443 U. S. 622, 443 U. S. 635 (1979) (juveniles "often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them").The substantiality and legitimacy of the state interests underlying this statute are confirmed by the widespread use and judicial acceptance of preventive detention for juveniles. Every State, as well as the United States in the District of Page 467 U. S. 267 Columbia, permits preventive detention of juveniles accused of crime. [Footnote 16] A number of model juvenile justice Acts also contain provisions permitting preventive detention. [Footnote 17] And the Page 467 U. S. 268 courts of eight States, including the New York Court of Appeals, have upheld their statutes with specific reference to protecting the juvenile and the community from harmful pretrial conduct, including pretrial crime. L.O.W. v. District Court of Arapahoe, supra, at 1258-1259; Morris v. D'Amario, supra, at 139-140; State v. Gleason, 404 A.2d at 583; Pauley v. Gross, 1 Kan.App.2d 736, 738-740, 574 P.2d 234, 237-238 (1977); People ex rel. Wayburn v. Schupf, 39 N.Y.2d at 688-689, 350 N.E.2d at 909-910; Aubrey v. Gadbois, 50 Cal. App. 3d 470, 472, 123 Cal. Rptr. 365, 366 (1975); Baker v. Smith, 477 S.W.2d at 150-151; Commonwealth ex rel. Sprowal v. Hendrick, 438 Pa. 435, 438-439, 265 A.2d 348, 349-350 (1970)."The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105 (1934)."Leland v. Oregon, 343 U. S. 790, 343 U. S. 798 (1952). In light of the uniform legislative judgment that pretrial detention of juveniles properly promotes the interests both of society and the juvenile, we conclude that the practice serves a legitimate regulatory purpose compatible with the "fundamental fairness" demanded by the Due Process Clause in juvenile proceedings. Cf. McKeiver v. Pennsylvania, 403 U.S. at 403 U. S. 548 (plurality opinion). [Footnote 18] Page 467 U. S. 269Of course, the mere invocation of a legitimate purpose will not justify particular restrictions and conditions of confinement amounting to punishment. It is axiomatic that "[d]ue process requires that a pretrial detainee not be punished." Bell v. Wolfish, 441 U.S. at 441 U. S. 535, n. 16. Even given, therefore, that pretrial detention may serve legitimate regulatory purposes, it is still necessary to determine whether the terms and conditions of confinement under § 320.5(3)(b) are in fact compatible with those purposes. Kennedy v. Mendoza-Martinez, 372 U.S. at 372 U. S. 168-169."A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose."Bell v. Wolfish, supra, at 441 U. S. 538. Absent a showing of an express intent to punish on the part of the State, that determination generally will turn on"whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]."Kennedy v. Mendoza-Martinez, supra, at 372 U. S. 168-189. See Bell v. Wolfish, supra, at 441 U. S. 538; Flemming v. Nestor, 363 U. S. 603, 363 U. S. 613-614 (1960).There is no indication in the statute itself that preventive detention is used or intended as a punishment. First of all, the detention is strictly limited in time. If a juvenile is detained at his initial appearance and has denied the charges Page 467 U. S. 270 against him, he is entitled to a probable cause hearing to be held not more than three days after the conclusion of the initial appearance or four days after the filing of the petition, whichever is sooner. FCA § 325.1(2). [Footnote 19] If the Family Court judge finds probable cause, he must also determine whether continued detention is necessary pursuant to § 320.5(3)(b). § 325.3(3).Detained juveniles are also entitled to an expedited factfinding hearing. If the juvenile is charged with one of a limited number of designated felonies, the factfinding hearing must be scheduled to commence not more than 14 days after the conclusion of the initial appearance. § 340.1. If the juvenile is charged with a lesser offense, then the factfinding hearing must be held not more than three days after the initial appearance. [Footnote 20] In the latter case, since the times for the probable cause hearing and the factfinding hearing coincide, the two hearings are merged.Thus, the maximum possible detention under § 320.5(3)(b) of a youth accused of a serious crime, assuming a 3-day extension of the factfinding hearing for good cause shown, is 17 days. The maximum detention for less serious crimes, again assuming a 3-day extension for good cause shown, is six days. These time frames seem suited to the limited purpose of providing the youth with a controlled environment and separating him from improper influences pending the speedy disposition of his case.The conditions of confinement also appear to reflect the regulatory purposes relied upon by the State. When a juvenile is remanded after his initial appearance, he cannot, absent exceptional circumstances, be sent to a prison or lockup where he would be exposed to adult criminals. FCA Page 467 U. S. 271 § 304.1(2). Instead, the child is screened by an "assessment unit" of the Department of Juvenile Justice. Testimony of Mr. Kelly (Deputy Commissioner of Operations, New York City Department of Juvenile Justice), App. 286-287. The assessment unit places the child in either nonsecure or secure detention. Nonsecure detention involves an open facility in the community, a sort of "halfway house," without locks, bars, or security officers where the child receives schooling and counseling and has access to recreational facilities. Id. at 285; Testimony of Mr. Benjamin, id. at 149-150.Secure detention is more restrictive, but it is still consistent with the regulatory and parens patriae objectives relied upon by the State. Children are assigned to separate dorms based on age, size, and behavior. They wear street clothes provided by the institution and partake in educational and recreational programs and counseling sessions run by trained social workers. Misbehavior is punished by confinement to one's room. See Testimony of Mr. Kelly, id. at 292-297. We cannot conclude from this record that the controlled environment briefly imposed by the State on juveniles in secure pretrial detention "is imposed for the purpose of punishment," rather than as "an incident of some other legitimate governmental purpose." Bell v. Wolfish, 441 U.S. at 441 U. S. 538.The Court of Appeals, of course, did conclude that the underlying purpose of § 320.5(3)(b) is punitive, rather than regulatory. But the court did not dispute that preventive detention might serve legitimate regulatory purposes, or that the terms and conditions of pretrial confinement in New York are compatible with those purposes. Rather, the court invalidated a significant aspect of New York's juvenile justice system based solely on some case histories and a statistical study which appeared to show that"the vast majority of juveniles detained under [§ 320.5(3)(b)] either have their petitions dismissed before an adjudication of delinquency or are released after adjudication."689 F.2d at 369. The court assumed that dismissal of a petition or failure to confine a juvenile at Page 467 U. S. 272 the dispositional hearing belied the need to detain him prior to factfinding and that, therefore, the pretrial detention constituted punishment. Id. at 373. Since punishment imposed without a prior adjudication of guilt is per se illegitimate, the Court of Appeals concluded that no juveniles could be held pursuant to § 320.5(3)(b).There are some obvious flaws in the statistics and case histories relied upon by the lower court. [Footnote 21] But even assuming it to be the case that "by far the greater number of juveniles incarcerated under [§ 320.5(3)(b)] will never be confined as a consequence of a disposition imposed after an adjudication of delinquency," 689 F.2d at 371-372, we find that to be an insufficient ground for upsetting the widely shared legislative judgment that preventive detention serves an important and legitimate function in the juvenile justice system. We are unpersuaded by the Court of Appeals' rather cavalier equation of detentions that do not lead to continued confinement after an adjudication of guilt and "wrongful" or "punitive" pretrial detentions.Pretrial detention need not be considered punitive merely because a juvenile is subsequently discharged subject to conditions Page 467 U. S. 273 or put on probation. In fact, such actions reinforce the original finding that close supervision of the juvenile is required. Lenient but supervised disposition is in keeping with the Act's purpose to promote the welfare and development of the child. [Footnote 22] As the New York Court of Appeals noted:"It should surprise no one that caution and concern for both the juvenile and society may indicate the more conservative decision to detain at the very outset, whereas the later development of very much more relevant information may prove that, while a finding of delinquency was warranted, placement may not be indicated."People ex rel. Wayburn v. Schupf, 39 N.Y.2d at 690, 350 N.E.2d at 910.Even when a case is terminated prior to factfinding, it does not follow that the decision to detain the juvenile pursuant to § 320. 5(3)(b) amounted to a due process violation. A delinquency petition may be dismissed for any number of reasons collateral to its merits, such as the failure of a witness to testify. The Family Court judge cannot be expected to anticipate such developments at the initial hearing. He makes his decision based on the information available to him at that time, and the propriety of the decision must be judged in that light. Consequently, the final disposition of a case is "largely irrelevant" to the legality of a pretrial detention. Baker v. McCollan, 443 U. S. 137, 443 U. S. 145 (1979).It may be, of course, that, in some circumstances, detention of a juvenile would not pass constitutional muster. But the validity of those detentions must be determined on a case-by-case basis. Section 320.5(3)(b) is not invalid "on its face" by Page 467 U. S. 274 reason of the ambiguous statistics and case histories relied upon by the court below. [Footnote 23] We find no justification for the conclusion that, contrary to the express language of the statute and the judgment of the highest state court, § 320.5(3)(b) is a punitive, rather than a regulatory, measure. Preventive detention under the FCA serves the legitimate state objective, held in common with every State in the country, of protecting both the juvenile and society from the hazards of pretrial crime.BGiven the legitimacy of the State's interest in preventive detention, and the nonpunitive nature of that detention, the remaining question is whether the procedures afforded juveniles detained prior to factfinding provide sufficient protection against erroneous and unnecessary deprivations of liberty. See Mathews v. Eldridge, 424 U.S. at 424 U. S. 335. [Footnote 24] In Gerstein v. Pugh, 420 U.S. at 420 U. S. 114, we held that a judicial Page 467 U. S. 275 determination of probable cause is a prerequisite to any extended restraint on the liberty of an adult accused of crime. We did not, however, mandate a specific timetable. Nor did we require the "full panoply of adversary safeguards -- counsel, confrontation, cross-examination, and compulsory process for witnesses." Id. at 119. Instead, we recognized "the desirability of flexibility and experimentation by the States." Id. at 420 U. S. 123. Gerstein arose under the Fourth Amendment, but the same concern with "flexibility" and "informality," while yet ensuring adequate predetention procedures, is present in this context. In re Winship, 397 U.S. at 397 U. S. 366; Kent v. United States, 383 U. S. 541, 383 U. S. 554 (1966).In many respects, the FCA provides far more predetention protection for juveniles than we found to be constitutionally required for a probable cause determination for adults in Gerstein. The initial appearance is informal, but the accused juvenile is given full notice of the charges against him and a complete stenographic record is kept of the hearing. See 513 F. Supp. at 702. The juvenile appears accompanied by his parent or guardian. [Footnote 25] He is first informed of his rights, including the right to remain silent and the right to be represented by counsel chosen by him or by a law guardian assigned by the court. FCA § 320.3. The initial appearance may be adjourned for no longer than 72 hours or until the next court day, whichever is sooner, to enable an appointed law guardian or other counsel to appear before the court. § 320.2(3). When his counsel is present, the juvenile is informed of the charges against him and furnished with a copy of the delinquency petition. § 320.4(1). A representative from the presentment agency appears in support of the petition.The nonhearsay allegations in the delinquency petition and supporting depositions must establish probable cause to Page 467 U. S. 276 believe the juvenile committed the offense. Although the Family Court judge is not required to make a finding of probable cause at the initial appearance, the youth may challenge the sufficiency of the petition on that ground. FCA § 315.1. Thus, the juvenile may oppose any recommended detention by arguing that there is not probable cause to believe he committed the offense or offenses with which he is charged. If the petition is not dismissed, the juvenile is given an opportunity to admit or deny the charges. § 321.1. [Footnote 26]At the conclusion of the initial appearance, the presentment agency makes a recommendation regarding detention. A probation officer reports on the juvenile's record, including other prior and current Family Court and probation contacts, as well as relevant information concerning home life, school attendance, and any special medical or developmental problems. He concludes by offering his agency's recommendation on detention. Opposing counsel, the juvenile's parents, and the juvenile himself may all speak on his behalf and challenge any information or recommendation. If the judge does decide to detain the juvenile under § 320.5(3)(b), he must state on the record the facts and reasons for the detention. [Footnote 27] Page 467 U. S. 277As noted, a detained juvenile is entitled to a formal, adversarial probable cause hearing within three days of his initial appearance, with one 3-day extension possible for good cause shown. [Footnote 28] The burden at this hearing is on the presentment agency to call witnesses and offer evidence in support of the charges. § 325.2. Testimony is under oath and subject to cross-examination. Ibid. The accused juvenile may call witnesses and offer evidence in his own behalf. If the court finds probable cause, the court must again decide whether continued detention is necessary under § 320.5(3)(b). Again, the facts and reasons for the detention must be stated on the record.In sum, notice, a hearing, and a statement of facts and reasons are given prior to any detention under § 320.5(3)(b). A formal probable cause hearing is then held within a short while thereafter, if the factfinding hearing is not itself scheduled within three days. These flexible procedures have been found constitutionally adequate under the Fourth Amendment, see Gerstein v. Pugh, and under the Due Process Clause, see Kent v. United States, supra, at 383 U. S. 557. Appellees have failed to note any additional procedures that would significantly improve the accuracy of the determination without unduly impinging on the achievement of legitimate state purposes. [Footnote 29] Page 467 U. S. 278Appellees argue, however, that the risk of erroneous and unnecessary detentions is too high despite these procedures, because the standard for detention is fatally vague. Detention under § 320.5(3)(b) is based on a finding that there is a "serious risk" that the juvenile, if released, would commit a crime prior to his next court appearance. We have already seen that detention of juveniles on that ground serves legitimate regulatory purposes. But appellees claim, and the District Court agreed, that it is virtually impossible to predict future criminal conduct with any degree of accuracy. Moreover, they say, the statutory standard fails to channel the discretion of the Family Court judge by specifying the factors on which he should rely in making that prediction. The procedural protections noted above are thus, in their view, unavailing, because the ultimate decision is intrinsically arbitrary and uncontrolled.Our cases indicate, however, that, from a legal point of view, there is nothing inherently unattainable about a prediction of future criminal conduct. Such a judgment forms an important element in many decisions, [Footnote 30] and we have specifically rejected Page 467 U. S. 279 the contention, based on the same sort of sociological data relied upon by appellees and the District Court, "that it is impossible to predict future behavior and that the question is so vague as to be meaningless." Jurek v. Texas, 428 U. S. 262, 428 U. S. 274 (1976) (opinion of Stewart, POWELL, and STEVENS, JJ.); id. at 428 U. S. 279 (WHITE, J., concurring in judgment).We have also recognized that a prediction of future criminal conduct is "an experienced prediction based on a host of variables" which cannot be readily codified. Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 442 U. S. 16 (1979). Judge Quinones of the Family Court testified at trial that he and his colleagues make a determination under § 320.5(3)(b) based on numerous factors, including the nature and seriousness of the charges; whether the charges are likely to be proved at trial; the juvenile's prior record; the adequacy and effectiveness of his home supervision; his school situation, if known; the time of day of the alleged crime as evidence of its seriousness and a possible lack of parental control; and any special circumstances that might be brought to his attention by the probation officer, the child's attorney, or any parents, relatives, or other responsible persons accompanying the child. Testimony of Judge Quinones, App. 254-267. The decision is based on as much information as can reasonably be obtained at the initial appearance. Ibid.Given the right to a hearing, to counsel, and to a statement of reasons, there is no reason that the specific factors upon which the Family Court judge might rely must be specified in the statute. As the New York Court of Appeals concluded, People e rel. Wayburn v. Schupf, 39 N.Y.2d at 690, 350 N.E.2d at 910, "to a very real extent, Family Court must exercise a substitute parental control for which there can be Page 467 U. S. 280 no particularized criteria." There is also no reason, we should add, for a federal court to assume that a state court judge will not strive to apply state law as conscientiously as possible. Sumner v. Mata, 449 U. S. 539, 449 U. S. 549 (1981).It is worth adding that the Court of Appeals for the Second Circuit was mistaken in its conclusion that"[i]ndividual litigation . . . is a practical impossibility, because the periods of detention are so short that the litigation is mooted before the merits are determined."689 F.2d at 373. In fact, one of the juveniles in the very case histories upon which the court relied was released from pretrial detention on a writ of habeas corpus issued by the State Supreme Court. New York courts also have adopted a liberal view of the doctrine of "capable of repetition, yet evading review" precisely in order to ensure that pretrial detention orders are not unreviewable. In People ex rel. Wayburn v. Schupf, supra, at 686, 350 N.E.2d at 908, the court declined to dismiss an appeal from the grant of a writ of habeas corpus despite the technical mootness of the case."Because the situation is likely to recur . . . and the substantial issue may otherwise never be reached (in view of the predictably recurring happenstance that, however expeditiously an appeal might be prosecuted, factfinding and dispositional hearings normally will have been held and a disposition made before the appeal could reach us), . . . we decline to dismiss [the appeal] on the ground of mootness."The required statement of facts and reasons justifying the detention and the stenographic record of the initial appearance will provide a basis for the review of individual cases. Pretrial detention orders in New York may be reviewed by writ of habeas corpus brought in State Supreme Court. And the judgment of that court is appealable as of right and may be taken directly to the Court of Appeals if a constitutional question is presented. N.Y.Civ.Prac.Law § 5601(b)(2) Page 467 U. S. 281 (McKinney 1978). Permissive appeal from a Family Court order may also be had to the Appellate Division. FCA § 365.2. Or a motion for reconsideration may be directed to the Family Court judge. § 355.1(1)(b). These post-detention procedures provide a sufficient mechanism for correcting on a case-by-case basis any erroneous detentions ordered under § 320.5(3). Such procedures may well flesh out the standards specified in the statute.IIIThe dissent would apparently have us strike down New York's preventive detention statute on two grounds: first, because the preventive detention of juveniles constitutes poor public policy, with the balance of harms outweighing any positive benefits either to society or to the juveniles themselves, post at 467 U. S. 290-291, 467 U. S. 308, and, second, because the statute could have been better drafted to improve the quality of the decisionmaking process, post at 467 U. S. 304-306. But it is worth recalling that we are neither a legislature charged with formulating public policy nor an American Bar Association committee charged with drafting a model statute. The question before us today is solely whether the preventive detention system chosen by the State of New York and applied by the New York Family Court comports with constitutional standards. Given the regulatory purpose for the detention and the procedural protections that precede its imposition, we conclude that § 320.5(3)(b) of the New York FCA is not invalid under the Due Process Clause of the Fourteenth Amendment. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtSchall v. Martin, 467 U.S. 253 (1984)Schall v. MartinNo. 82-1248Argued January 17, 1984Decided June 4, 1984467 U.S. 253SyllabusSection 320.5(3)(b) of the New York Family Court Act authorizes pretrial detention of an accused juvenile delinquent based on a finding that there is a "serious risk" that the juvenile "may before the return date commit an act which if committed by an adult would constitute a crime." Appellees, juveniles who had been detained under § 320.5(3)(b), brought a habeas corpus class action in Federal District Court, seeking a declaratory judgment that § 320.5(3)(b) violates, inter alia, the Due Process Clause of the Fourteenth Amendment. The District Court struck down the statute as permitting detention without due process and ordered the release of all class members. The Court of Appeals affirmed, holding that, since the vast majority of juveniles detained under the statute either have their cases dismissed before an adjudication of delinquency or are released after adjudication, the statute is administered, not for preventive purposes, but to impose punishment for unadjudicated criminal acts, and that therefore the statute is unconstitutional as to all juveniles.Held: Section 320.5(3)(b) is not invalid under the Due Process Clause of the Fourteenth Amendment. Pp. 467 U. S. 263-281.(a) Preventive detention under the statute serves the legitimate state objective, held in common with every State, of protecting both the juvenile and society from the hazards of pretrial crime. That objective is compatible with the "fundamental fairness" demanded by the Due Process Clause in juvenile proceedings, and the terms and condition of confinement under § 320.5(3)(b) are compatible with that objective. Pretrial detention need not be considered punishment merely because a juvenile is subsequently discharged subject to conditions or put on probation. And even when a case is terminated prior to factfinding, it does not follow that the decision to detain the juvenile pursuant to § 320.5(3)(b) amounts to a due process violation. Pp. 467 U. S. 264-274. Page 467 U. S. 254(b) The procedural safeguards afforded by the Family Court Act to juveniles detained under § 320.5(3)(b) prior to factfinding provide sufficient protection against erroneous and unnecessary deprivations of liberty. Notice, a hearing, and a statement of facts and reasons are given to the juvenile prior to any detention, and a formal probable cause hearing is then held within a short time thereafter, if the factfinding hearing is not itself scheduled within three days. There is no merit to the argument that the risk of erroneous and unnecessary detention is too high despite these procedures because the standard for detention is fatally vague. From a legal point of view, there is nothing inherently unattainable about a prediction of future criminal conduct. Such a prediction is an experienced one based on a host of variables that cannot be readily codified. Moreover, the post-detention procedures -- habeas corpus review, appeals, and motions for reconsideration -- provide a sufficient mechanism for correcting on a case-by-case basis any erroneous detention. Pp. 467 U. S. 274-281.689 F.2d 365, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 467 U. S. 281. Page 467 U. S. 255

1979_78-1815

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.The general mining law of 1872, 30 U.S.C. § 22 et seq., provides that citizens may enter and explore the public domain, and search for minerals; if they discover "valuable mineral deposits," they may obtain title to the land on which such deposits are located. [Footnote 1] In 1920, Congress altered this Page 446 U. S. 659 program with the enactment of the Mineral Leasing Act. 41 Stat. 437, as amended, 30 U.S.C. § 181 et seq. The Act withdrew oil shale and several other minerals from the general mining law and provided that thereafter these minerals would be subject to disposition only through leases. A savings clause, however, preserved "valid claims existent at date of the passage of this Act and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery." [Footnote 2]The question presented is whether oil shale deposits located prior to the 1920 Act are "valuable mineral deposits" patentable under the savings clause of the Act.IThe action involves two groups of oil shale claims located by claimants on public lands in Garfield County, Colo., prior to the enactment of the Mineral Leasing Act. [Footnote 3] The first group of claims, designated Mountain Boys Nos. 6 and 7, was located in 1918. In 1920, a business trust purchased the claims for $25,000, and in 1924 an application for patent was filed with Page 446 U. S. 660 the Department of the Interior. Some 20 years later, after extended investigative and adjudicatory proceedings, the patent was rejected "without prejudice" on the ground that it was not then vigorously pursued. In 1958, Frank W. Winegar acquired the claims and filed a new patent application. In 1964, Winegar conveyed his interests in the claims to respondent Shell Oil Company.The second group of claims, known as Harold Shoup Nos. 1-4, was located in 1917. In 1923, the claims were acquired by Karl C. Schuyler, who, in 1933, bequeathed them to his surviving spouse. In 1960, Mrs. Schuyler incorporated respondent D. A. Shale, Inc., and transferred title to the claims to the corporation. Three months later, the corporation filed patent applications.In 1964, the Department issued administrative complaints alleging that the Mountain Boys claims and the Shoup claims were invalid. The complaints alleged, inter alia, that oil shale was not a "valuable mineral" prior to the enactment of the 1920 Mineral Leasing Act.The complaints were consolidated and tried to a hearing examiner, who, in 1970, ruled the claims valid. The hearing examiner observed that, under established case law, the test for determining a "valuable mineral deposit" was whether the deposit was one justifying present expenditures with a reasonable prospect of developing a profitable mine. See United States v. Coleman, 390 U. S. 599 (1968); Castle v. Womble, 19 L.D. 455 (1894). [Footnote 4] He then reviewed the history Page 446 U. S. 661 of oil shale operations in this country and found that every attempted operation had failed to show profitable production. On the basis of this finding and other evidence showing commercial infeasibility, the hearing examiner reasoned that, "[i]f this were a case of first impression," oil shale would fail the "valuable mineral deposit" test. However, he deemed himself bound by the Department's contrary decision in Freeman v. Summers, 52 L.D. 201 (1927). There, the Secretary had written:"While at the present time there has been no considerable production of oil from shales, due to the fact that abundant quantities of oil have been produced more cheaply from wells, there is no possible doubt of its value and of the fact that it constitutes an enormously valuable resource for future use by the American people.""It is not necessary, in order to constitute a valid discovery under the general mining laws sufficient to support an application for patent, that the mineral in its present situation can be immediately disposed of at a profit."Id. at 206. (Emphasis added.) The hearing examiner ruled that Freeman v. Summers compelled the conclusion that oil shale is a valuable mineral subject to appropriation under the mining laws, and he upheld the Mountain Boys and Shoup claims as valid and patentable.The Board of Land Appeals reversed. Adopting the findings of the hearing examiner, the Board concluded that oil shale claims located prior to 1920 failed the test of value because, at the time of location, there did not appear "as a present fact . . . a reasonable prospect of success in developing an operating mine that would yield a reasonable profit." (Emphasis in original.) The Board recognized that this conclusion was at odds with prior departmental precedent, and Page 446 U. S. 662 particularly with Freeman v. Summers; but it rejected that precedent as inconsistent with the general mining law, and therefore unsound. The Board then considered whether its newly enunciated interpretation should be given only prospective effect. It found that respondents' reliance on prior rulings was minimal, and that the Department's responsibility as trustee of public lands required it to correct a plainly erroneous decision. [Footnote 5] Accordingly, it ruled that its new interpretation applied to the Mountain Boys and Shoup claims, and that those claims were invalid.Respondents appealed the Board's ruling to the United States District Court for the District of Colorado. The District Court agreed with the Board that, by not requiring proof of "present marketability," the decision in Freeman v. Summers had liberalized the traditional valuable mineral test. But it found that Congress, in 1931 and again in 1956, had considered the patentability of oil shale and had implicitly "ratified" that liberalized rule. Alternatively, the District Court concluded that the Department was estopped now from departing from the Freeman standard, which investors had "relied upon . . . for the past half-century." Shell Oil Co. v. Kleppe, 426 F. Supp. 894, 907 (1977). On these grounds, it reversed the Board's ruling and held that the claims at issue were valid.The Court of Appeals for the Tenth Circuit affirmed. 591 F.2d 597 (1979). It agreed with the District Court that the"different treatment afforded all oil shale claims as to the 'valuable mineral deposit' element of a location became a part of the general mining laws by reason of its adoption and approval Page 446 U. S. 663 by both Houses of Congress"in the years after 1920. Id. at 604. And it held that the Department now must adhere to the Freeman rule. We granted certiorari because of the importance of the question to the management of the public lands. 444 U.S. 822 (1979). We affirm.IIThe legislative history of the 1920 Mineral Leasing Act shows that Congress did not consider "present marketability" a prerequisite to the patentability of oil shale. [Footnote 6] In the extensive hearings and debates that preceded the passage of the 1920 Act, there is no intimation that Congress contemplated such a requirement; indeed, the contrary appears. During the 1919 floor debates in the House of Representatives, an amendment was proposed which would have substituted the phrase "deposits in paying quantities" for "valuable mineral." That amendment, however, was promptly withdrawn after Mr. Sinott, the House floor manager, voiced his objection to the change:"Mr. SINOTT. That language was put in with a great deal of consideration, and we would not like to change from 'valuable' to 'paying.' There is quite a distinction. We are in line with the decisions of the courts as to what is a discovery, and I think it would be a very Page 446 U. S. 664 dangerous matter to experiment with this language at this time."58 Cong.Rec. 7537 (1919) (emphasis added). An examination of the relevant decisions at the time underscores the point. Those decisions are clear in rejecting a requirement that a miner must "demonstrat[e] that the vein . . . would pay all the expenses of removing, extracting, crushing, and reducing the ore, and leave a profit to the owner," Book v. Justice Mining Co., 58 F. 106, 124 (CC Nev. 1893), and in holding that "it is enough if the vein or deposit has a present or prospective commercial value.'" Madison v. Octave Oil Co., 154 Cal. 768, 772, 99 P. 176, 178 (1908) (emphasis added). Accord, Cascaden v. Bartolis, 146 F. 739 (CA9 1906); United States v. Ohio Oil Co., 240 F. 996, 998 (Wyo.1916); Montana Cent. R. Co. v. Migeon, 68 F. 811, 814 (CC Mont. 1895); East Tintic Consolidated-Mining Co., 43 L.D. 79, 81 (1914); 2 C. Lindley, American Law Relating to Mines and Mineral Lands § 336, pp. 768-769 (3d ed.1914). See generally Reeves, The Origin and Development of the Rules of Discovery, 8 Land & Water L.Rev. 1 (1973).To be sure, prior to the passage of the 1920 Act, there existed considerable uncertainty as to whether oil shale was patentable. [Footnote 7] That uncertainty, however, related to whether oil shale was a "mineral" under the mining law, and not to its "value." Similar doubts had arisen in the late 19th century Page 446 U. S. 665 in regard to petroleum. Indeed, in 1896, the Secretary of the Interior had held that petroleum claims were not subject to location under the mining laws, concluding that only lands "containing the more precious metals . . . gold, silver, cinnabar etc." were open to entry. Union Oil Co., 23 L.D. 222, 227. The Secretary's decision was short-lived. In 1897, Congress enacted the Oil Placer Act authorizing entry under the mining laws to public lands "containing petroleum or other mineral oils." Ch. 216, 29 Stat. 526. This legislation put to rest any doubt about oil as a mineral. But because oil shale, strictly speaking, contained kerogen, and not oil, see n 3, supra, its status remained problematic. See Reidy, Do Unpatented Oil Shale Claims Exist?, 43 Denver L.J. 9, 12 (1966).That this was the nature of the uncertainty surrounding the patentability of oil shale claims is evident from remarks made throughout the hearings and debates on the 1920 Act. In the 1918 hearings, Congressman Barnett, for example, explained:"Mr. BARNETT. . . . If the department should contend that shale lands come within the meaning of the term 'oil lands,' they must perforce, by the same argument, admit that they are placer lands within the meaning of the act of 1897.""The Chairman. And patentable?""Mr. BARNETT. And patentable under that act."Hearings at 918. The enactment of the 1920 Mineral Leasing Act put an end to these doubts. By withdrawing "oil shale . . . in lands valuable for such minerals" from disposition under the general mining law, the Congress recognized -- at least implicitly -- that oil shale had been a locatable mineral. In effect, the 1920 Act did for oil shale what the 1897 Oil Placer Act had done for oil. And, as Congressman Barnett's ready answer demonstrates, once it was settled that oil shale was a mineral Page 446 U. S. 666 subject to location, and once a savings clause was in place preserving preexisting claims, it was fully expected that such claims would be patentable. The fact that oil shale then had no commercial value simply was not perceived as an obstacle to that end.IIIOur conclusion that Congress in enacting the 1920 Mineral Leasing Act contemplated that preexisting oil shale claims could satisfy the discovery requirement of the mining law is confirmed by actions taken in subsequent years by the Interior Department and the Congress. [Footnote 8]AOn May 10, 1920, less than three months after the Mineral Leasing Act became law, the Interior Department issued "Instructions" to its General Land Office authorizing that Office to begin adjudicating applications for patents for pre-1920 oil shale claims. The Instructions advised as follows:"Oil shale having been thus recognized by the Department and by Congress as a mineral deposit and a source of petroleum . . . lands valuable on account thereof must be held to have been subject to valid location and Page 446 U. S. 667 appropriation under the placer mining laws, to the same extent and subject to the same provisions and conditions as if valuable on account of oil or gas."47 L.D. 548, 551 (1920) (emphasis added) . The first such patent was issued immediately thereafter. Five years later, the Department ruled that patentability was dependent upon the "character, extent, and mode of occurrence of the oil-shale deposits." Dennis v. Utah, 51 L.D. 229, 232 (1925). Present profitability was not mentioned as a relevant, let alone a critical, consideration.In 1927, the Department decided Freeman v. Summers, 52 L.D. 201. The case arose out of a dispute between an oil shale claimant and an applicant for a homestead patent, and involved two distinct issues: (1) whether a finding of lean surface deposits warranted the geological inference that the claim contained rich "valuable" deposits below; and (2) whether present profitability was a prerequisite to patentability. Both issues were decided in favor of the oil shale claimant: the geological inference was deemed sound, and the fact that there was "no possible doubt . . . that [oil shale] constitutes an enormously valuable resource for future use by the American people" was ruled sufficient proof of "value." Id. at 206.For the next 33 years, Freeman was applied without deviation. [Footnote 9] It was said that its application ensured that "valid rights [would] be protected and permitted to be perfected." Secretary of Interior Ann Rep. 30 (1927). In all, 523 patents for 2,326 claims covering 349,088 acres were issued under the Freeman rule. This administrative practice, begun immediately upon the passage of the 1920 Act,"has peculiar weight [because] it involves a contemporaneous construction Page 446 U. S. 668 of [the] statute by the men charged with the responsibility of setting its machinery in motion,"Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 288 U. S. 315 (1933). Accord, e.g., United States v. National Assn. of Securities Dealers, 422 U. S. 694, 422 U. S. 719 (1975); Udall v. Tallman, 380 U. S. 1, 380 U. S. 16 (1965). It provides strong support for the conclusion that Congress did not intend to impose a present marketability requirement on oil shale claims.BIn 1930 and 1931, congressional committees revisited the 1920 Mineral Leasing Act and reexamined the patentability of oil shale claims. Congressional interest in the subject was sparked in large measure by a series of newspaper articles charging that oil shale lands had been "improvidently, erroneously, and unlawfully, if not corruptly, transferred to individuals and private corporations." 74 Cong.Rec. 1079 (1930) (S.Res. 379). The articles were based upon accusations leveled at the Interior Department by Ralph S. Kelly, then the General Land Office Division Inspector in Denver. Kelly's criticism centered on the Freeman v. Summers decision. Fearing another "Teapot Dome" scandal, the Senate authorized the Committee on Public Lands to "inquire into . . . the alienation of oil shale lands."The Senate Committee held seven days of hearings focusing almost exclusively on "the so-called Freeman-Summers case." Hearings on S.Res. 379 before the Senate Committee on Public Lands and Surveys, 71st Cong., 3d Sess., 2 (1931). At the outset of the hearings, the Committee was advised by E. C. Finney, Solicitor, Department of the Interior, that 124 oil shale patents had been issued covering 175,000 acres of land, and that 63 more patent applications were pending. Finney's statement prompted this interchange:"Senator PITTMAN: Well, were the shales on those patented lands of commercial value? "Page 446 U. S. 669"Mr. FINNEY: If you mean by that whether they could have been mined and disposed of at a profit at the time of the patent, or now, the answer is no.""Senator PITTMAN: So the Government has disposed of 175,000 acres in patents on lands which in your opinion there was no valid claim to in the locator?""Mr. FINNEY: No; that was not my opinion. I have never held in the world, that I know of, that you had to have an actual commercial discovery of any commodity that you could take out and market at a profit. On the contrary, the department has held that that is not the case. . . ."Id. at 25 (emphasis added). Later in the hearings, Senator Walsh expressed his understanding of the impact of the Freeman decision:"Senator WALSH: [It means] . . . that the prospector having found at the surface the layer containing any quantity of mineral, that is of oil-bearing shale or kerogen, that that would be a discovery in view of the beds down below of richer character.""Mr. FINNEY: In this formation, yes sir; that is correct."Id. at 138. See also id. at 22-23, 26, 163. The Senate Committee did not produce a report. But one month after the hearings were completed, Senator Nye, the Chairman of the Committee, wrote the Secretary of the Interior that he had"'conferred with Senator Walsh and beg[ged] to advise that there is no reason why your Department should not proceed to final disposition of the pending application for patents to oil shale lands in conformity with the law.'"App. 103. The patenting of oil shale lands under the standards enunciated in Freeman was at once resumed.At virtually the same time, the House of Representatives commenced its own investigation into problems relating to Page 446 U. S. 670 oil shale patents. The House Committee, however, focused primarily on the question of assessment work -- whether an oil shale claimant was required to perform $100 work per year or forfeit his claim -- and not on discovery. But the impact of the Freeman rule was not lost on the Committee:"Mr. SWING: In furtherance of the policy of conservation, Mr. Secretary, in view of the fact that there has not been discovered, as I understand it, any practical economical method of extracting oil from the shale in competition with oil wells . . . , would it not be proper public policy to withdraw all shale lands from private acquisition, since we are compelled to recognize, perforce, economic and fiscal conditions, that no one is going to make any beneficial use of the oil shale in the immediate future, but is simply putting it in cold storage as a speculative proposition?""Secretary WILBUR: As a matter of conservation, what you say is true, but what we have to meet here is the fact that, in the leasing act, there was a clause to the effect that valid existing claims were not included, and so we are dealing with claims that are thought to be valid, and the question -- ""Mr. SWING (interposing). I realize that, and I understand the feeling of Congress, and I think generally the country, that in drawing the law we do not want to cut the ground from under the person who has initiated a right."Consolidated Hearings on Applications for Patent on Oil Shale Lands before the House Committee on the Public Lands, 71st Cong., 3d Sess., 100 (1931). [Footnote 10] Page 446 U. S. 671 Congressman Swing's statement of the "feeling of Congress" comports with our reading of the 1920 statute, and of congressional intent. To hold now that Freeman was wrongly decided would be wholly inconsistent with that intent. Moreover, it would require us to conclude that the Congress, in 1930-1931, closed its eyes to a major perversion of the mining laws. We reject any such conclusion.CIn 1956, Congress again turned its attention to the patentability of oil shale. That year, it amended the mining laws by eliminating the requirement that locators must obtain and convey to the United States existing homestead surfaceland patents in order to qualify for a mining patent on minerals withdrawn under the 1920 Mineral Leasing Act. See Pub.L. 743, 70 Stat. 592. Where a surface owner refused to cooperate with the mining claimant and sell his estate, this requirement prevented the mining claimant from patenting his claim. See James W. Bell, 52 L.D.197 (1927). In hearings on the amendment, it was emphasized that oil shale claimants would be principal beneficiaries of the amendment:"Mr. ASPINALL. This [bill] does not have to do with any other minerals except the leaseable minerals to which no one can get a patent since 1920. . . . As far as I know, there are only just a few cases that are involved, and most of those cases are in the oil shale lands of eastern Utah and western Colorado. That is all this bill refers to."Hearings on H.R. 6501 before the House Committee on Interior and Insular Affairs 4 (1956). See also Hearings on H.R. 6501 before the Subcommittee on Mines and Mining of the House Committee on Interior and Page 446 U. S. 672 Insular Affairs 4, 13-14, 16 (1956). The Reports of both Houses also evince a clear understanding that oil shale claimants stood to gain by the amendment:"Under the Department of the Interior decision in the case of James W. Bell . . . , the owner of a valid mining claim located before February 25, 1920, on lands covered by the 1914 act, in order to obtain a patent to the minerals, is required to acquire the outstanding interest of the surface owner and thereafter to execute a deed of reconveyance to the United States. . . . From 1946 to 1955, inclusive, 71 mining claims, including 67 oil shale claims, were issued under this procedure. The committee is informed that, in a few cases, mining claimants have been unable to obtain the cooperation of the owners of the surface estate, and have been prevented thereby from obtaining patent to the mineral estate."S.Rep. No. 2524, 84th Cong,2d Sess., 2 (1956); H.R.Rep. No. 2198, 84th Cong., 2d Sess., 2 (1956) (emphasis added). The bill was enacted into law without floor debate. Were we to hold today that oil shale is a nonvaluable mineral, we would virtually nullify this 1956 action of Congress.IVThe position of the Government in this case is not without a certain irony. Its challenge to respondents' pre-1920 oil shale claims as a "nonvaluable" comes at a time when the value of such claims has increased sharply as the Nation searches for alternative energy sources to meet its pressing needs. If the Government were to succeed in invalidating old claims and in leasing the lands at public auction, the Treasury, no doubt, would be substantially enriched. However, the history of the 1920 Mineral Leasing Act and developments subsequent to that Act persuade us that the Government cannot achieve that end by imposing a present marketability Page 446 U. S. 673 requirement on oil shale claims. [Footnote 11] We conclude that the original position of the Department of the Interior, enunciated in the 1920 Instructions and in Freeman v. Summers, is the correct view of the Mineral Leasing Act as it applies to the patentability of those claims. [Footnote 12]The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtAndrus v. Shell Oil Co., 446 U.S. 657 (1980)Andrus v. Shell Oil Co.No. 78-1815Argued January 15, 1980Decided June 2, 1980446 U.S. 657SyllabusThe general mining law of 1872 permits citizens to explore the public domain and search for minerals and, if they discover "valuable mineral deposits," to obtain title to the land on which such deposits are located. The Mineral Leasing Act (Act), enacted in 1920, withdrew oil shale from the general mining law and provided that thereafter oil shale would be subject to disposition only through leases, except that a savings clause preserved valid claims existent at the date of passage of the Act. Upon complaints by the Department of the Interior (Department) alleging that respondents' claims for oil shale deposits located prior to the Act were invalid, a hearing examiner ruled the claims valid on the ground that the Department's 1927 decision in Freeman v. Summers, 52 L.D. 201, wherein it was held that "present marketability" is not a prerequisite to the patentability of oil shale deposits as "valuable mineral deposits," compelled the conclusion that oil shale is a valuable mineral subject to appropriation under the mining laws, despite substantial evidence that oil shale operations were commercially infeasible. The Board of Land Appeals reversed, holding that oil shale claims located prior to 1920 failed the test of value because, at the time of location, there did not appear as a present fact a reasonable prospect of success in developing an operating mine that would yield a reasonable profit. It rejected prior departmental precedent, particularly Freeman v. Summers, as being inconsistent with the general mining law, and therefore unsound. On appeal, the District Court reversed and held the claims valid, finding that Congress had implicitly "ratified" the rule of Freeman v. Summers, and that, in any event, the Department was estopped from departing from the longstanding Freeman standard. The Court of Appeals affirmed.Held: The oil shale deposits in question are "valuable mineral deposits" patentable under the Act's savings clause. The Act's history and the developments subsequent to its passage indicate that the Government should not be permitted to invalidate pre-1920 oil shale claims by imposing a present marketability requirement on such claims. The Department's original position, as set forth in Instructions, issued shortly after the Act became law, authorizing the General Land Office Page 446 U. S. 658 to begin adjudicating applications for patents for pre-1920 oil shale claims, and later enunciated in Freeman v. Summers, is the correct view of the Act as it applies to the patentability of pre-1920 oil shale claims. Pp. 446 U. S. 663-673.591 F.2d 597, affirmed.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. 446 U. S. 673.

1974_74-450

DOUGLAS and BRENNAN, JJ., filed a dissenting statement, post, p. 422 U. S. 268.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari [Footnote 1] in this case in order to determine whether Exemption 3 of the Freedom of Information Act, 5 U.S.C. § 552(b)(3), [Footnote 2] permits nondisclosure Page 422 U. S. 257 to respondents of certain reports in the files of the Federal Aviation Administration. This exemption provides that material need not be disclosed if "specifically exempted from disclosure by statute." The reports are known as Systems Worthiness Analysis Program (SWAP) Reports. [Footnote 3] They consist of analyses made by representatives of the FAA concerning the operation and maintenance performance of commercial airlines. Oversight and regulation of air travel safety is the responsibility of the FAA, § 601 of the Federal Aviation Act of 1958, 72 Stat. 775, as amended, 49 U.S.C. § 1421. The FAA claims the documents are protected from disclosure Page 422 U. S. 258 by virtue of § 1104 of the Federal Aviation Act of 1958, 49 U.S.C. § 1504. [Footnote 4]The facts of the case, in its present posture, [Footnote 5] are quite simple. During the summer of 1970, in connection with a study of airline safety being conducted by them, the respondents, associated with the Center for the Study of Responsive Law, requested that the FAA make available certain SWAP Reports. The FAA declined to produce the documents. In accordance with established procedures adopted by the FAA, the respondents then filed timely notice of administrative appeal in August, 1970. Several months later, while this administrative appeal was pending, the Air Transport Association, on behalf of its airline Page 422 U. S. 259 members, requested that the FAA make no public disclosure of the SWAP Reports. The Association noted that, in a prior memorandum of its own staff, the FAA had pointed out that "[t]he SWAP Program requires a cooperative effort on both the part of the company and FAA if it is to work effectively,'" and argued that"[t]he present practice of nonpublic submissions, which includes even tentative findings and opinions as well as certain factual material, encourages a spirit of openness on the part of airline management which is vital to the promotion of aviation safety -- the paramount consideration of airlines and government alike in this area."In February, 1971, the FAA formally denied respondents' request for the SWAP Reports. It took the position that the reports are exempt from public disclosure under 5 U.S.C. § 552(b)(3), the section at issue here. As previously noted, that section provides that such material need not be disclosed under the Freedom of Information Act when the material is specifically exempted from disclosure by statute. The FAA noted that § 1104 of the Federal Aviation Act of 1958 permits the Administrator to withhold information public disclosure of which, in his judgment, would adversely affect the interests of the objecting party and is not required to be disclosed in the interest of the public. The FAA also based its denial of these data on the exemption for intra-agency memoranda (5 U.S.C. § 552(b)(5)), the exemption for investigatory files compiled for law enforcement purposes (§ 552(b)(7)), and, finally, the exemption for documentation containing trade secrets and commercial or financial information of a privileged or confidential nature (§ 552(b)(4)). The FAA's answer also explained its view of the need for confidentiality in SWAP Reports:"The effectiveness of the in-depth analysis that is the essence of SWAP team investigation depends, to Page 422 U. S. 260 a great extent, upon the full, frank and open cooperation of the operator himself during the inspection period. His assurance by the FAA that the resulting recommendations are in the interest of safety and operational efficiency and will not be disclosed to the public are the major incentives impelling the operator to hide nothing and to grant free access to procedures, system of operation, facilities, personnel, as well as management and operational records in order to exhibit his normal course of operations to the SWAP inspectors."Respondents then sued in the District Court, seeking, inter alia, the requested documents. The District Court held that"the documents sought by plaintiffs . . . are, as a matter of law, public and non-exempt within the meaning of 5 United States Code [§] 552, and plaintiffs are entitled to judgment . . . as a matter of law."A divided Court of Appeals affirmed the judgment of the District Court "insofar as appellants rely upon Exemption (3)," but remanded the case for consideration of other exemptions which the FAA might wish to assert. 162 U.S.App.D.C. 298, 498 F.2d 1031 (1974). Examining first what it felt was the ordinary meaning of the language of Exemption 3, the Court of Appeals held that its language required the exempting statute relied on to specify or categorize the particular documents it authorizes to be withheld. Because § 1104 delegated "broad discretionary authority" under a "public interest" standard, it was held not within the scope of Exemption 3. The Court of Appeals distinguished this Court's decision in EPA v. Mink, 410 U. S. 73 (1973), on the ground that the exemption involved in that case was construed to be a specific reference by Congress to a definite class of documents, namely those that must be kept secret "in the Page 422 U. S. 261 interest of the national defense or foreign policy,'" 162 U.S.App.D.C. at 300, 498 F.2d at 1033. The Court of Appeals read the Act as providing a comprehensive guide to congressional intent. One of the Act's major purposes was seen as intending to eliminate what it characterized as vague phrases such as "in the public interest" or "for good cause" as a basis for withholding information. Under these circumstances, the court concluded that § 1104 cannot be considered a specific exemption by statute within the meaning of Exemption 3 of the Freedom of Information Act.This case involves no constitutional claims, no issues regarding the nature or scope of "executive privilege," but simply the scope and meaning of one of the exemptions of the Freedom of Information Act, 5 U.S.C. § 552. EPA v. Mink, supra, at 410 U. S. 94 (STEWART, J., concurring). The Act has two aspects. In one, it seeks to open public records to greater public access; in the other, it seeks to preserve the confidentiality undeniably essential in certain areas of Government operations. It is axiomatic that all parts of an Act, "if at all possible, are to be given effect." Weinberger v. Hynson, Westcott & Dunning, 412 U. S. 609, 412 U. S. 633 (1973). Accord, Kokoszka v. Belford, 417 U. S. 642, 417 U. S. 650 (1974).We have construed the Freedom of Information Act recently in NLRB v. Sears, Roebuck & Co., 421 U. S. 132 (1975); Renegotiation Board v. Grumman Aircraft & Engineering Corp., 421 U. S. 168 (1975); Renegotiation Board v. Bannercraft Clothing Co., 415 U. S. 1 (1974); EPA v. Mink, supra. In Mink, the Court set out the general nature and purpose of the Act, recognizing, as did the Senate committee report, that it is not "an easy task to balance the opposing interests . . .'" and "`provid[e] a workable formula which encompasses, balances, Page 422 U. S. 262 and protects all interests. . . .'" 410 U.S. at 410 U. S. 80, quoting from S.Rep. No. 813, 89th Cong., 1st Sess., 3 (1965). Nothing in the Act or its legislative history gives any intimation that all information in all agencies and in all circumstances is to be open to public inspection. Because it considered the public disclosure section of the Administrative Procedure Act, 60 Stat. 238, 5 U.S.C. § 1002 (1964 ed.), inadequate, Congress sought to permit access to certain kinds of official information which it thought had unnecessarily been withheld and, by the creation of nine explicitly exclusive exemptions, to provide a more workable and balanced formula that would make available information that ought to be public and, at the same time, protect certain information where confidentiality was necessary to protect legitimate governmental functions that would be impaired by disclosure. The exemptions provided by the Act, one of which we deal with here, represent the congressional judgment as to certain kinds of "information that the Executive Branch must have the option to keep confidential, if it so chooses," 410 U.S. at 410 U. S. 80. The language of Exemption 3 contains no "built-in" standard as in the case of some of the other exemptions. The variety of constructions given its language by the Courts of Appeals [Footnote 6] is ample evidence Page 422 U. S. 263 that the relevant portions of the exemption are unclear and ambiguous, compelling resort to the legislative history. See United States v. Donruss Co., 393 U. S. 297, 393 U. S. 303 (1969). Cf. United States v. Oregon, 366 U. S. 643, 366 U. S. 648 (1961).That history must be read in light of the legislation in existence when the Act was passed; that history reveals "clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws." Regional Rail Reorganization Act Cases, 419 U. S. 102, 419 U. S. 129 (1974). Congress was aware, as it undertook a painstaking review, during several sessions, of the right of the public to information concerning the public business; it was aware that it was acting not only against the backdrop of the 1946 Administrative Procedure Act, supra, but also on the basis of a significant number of earlier congressional decisions that confidentiality was essential in certain departments and agencies in order to protect the public interest. No distinction seems to have been made on Page 422 U. S. 264 the basis of the standards articulated in the exempting statute or on the degree of discretion which it vested in a particular Government officer. When the continued vitality of these specialized exempting statutes was raised by the views of various agencies, [Footnote 7] the members of the committee consistently expressed the clear intention that these statutes would remain unaffected by the new Act. During the 1963 hearings, for example, Senator Long, Chairman of the Senate Subcommittee stated:"It should be made clear that this bill in no way limits statutes specifically written with the congressional intent of curtailing the flow of information as a supplement necessary to the proper functioning of certain agencies. [Footnote 8]"Indeed, some provisions [Footnote 9] of bills which were not enacted could well have been construed as repealing all earlier legislation, [Footnote 10] but such provisions were not included in the bill that was finally enacted. More specifically, when the Civil Aeronautics Board brought § 1104 to the attention of both the House and Senate hearings of 1965, and expressed the agency interpretation that the provision was encompassed within Exemption 3, [Footnote 11] no question was Page 422 U. S. 265 raised or challenge made to the agency view of the impact of that exemption. When the House Committee on Government Operations focused on Exemption 3, it took note that there are"nearly 100 statutes or parts of statutes which restrict public access to specific Government records. These would not be modified by the public records provisions of S. 1160."H.R.Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966). (Emphasis added.)The respondents can prevail only if the Act is to be read as repealing by implication all existing statutes "which restrict public access to specific Government records." Ibid. The term "specific" as there used cannot be read as meaning that the exemption applies only to documents specified, i.e., by naming them precisely or by describing the category in which they fall. To require this interpretation would be to ask of Congress a virtually impossible task. Such a construction would also imply that Congress had undertaken to reassess every delegation of authority to withhold information which it had made before the passage of this legislation -- a task which the legislative history shows it clearly did not undertake.Earlier this Term, MR. JUSTICE BRENNAN, speaking for the Court in the Regional Rail Reorganization Act Cases, supra, noted that "repeals by implication are disfavored," Page 422 U. S. 266 419 U.S. at 419 U. S. 133, and that, when courts are confronted with statutes "capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.'" Id. at 419 U. S. 133-134, quoting Morton v. Mancari, 417 U. S. 535, 417 U. S. 551 (1974). As we have noted, here, as in the Regional Rail Reorganization Act Cases, supra, there is "clear evidence that Congress was aware of the necessity to deal expressly with inconsistent laws," 419 U.S. at 419 U. S. 129. To spell out repeal by implication of a multitude of statutes enacted over a long period of time, each of which was separately weighed and considered by Congress to meet an identified need, would be a more unreasonable step by a court than to do so with respect to a single statute such as was involved in the Regional Rail Reorganization Act Cases, supra. Congress' response was to permit the numerous laws then extant allowing confidentiality to stand; it is not for us to override that legislative choice.The discretion vested by Congress in the FAA, in both its nature and scope, is broad. There is not, however, any inevitable inconsistency between the general congressional intent to replace the broad standard of the former Administrative Procedure Act and its intent to preserve, for air transport regulation, a broad degree of discretion on what information is to be protected in the public interest in order to insure continuing access to the sources of sensitive information necessary to the regulation of air transport. Congress could not reasonably anticipate every situation in which the balance must tip in favor of nondisclosure as a means of insuring that the primary, or indeed sole, source of essential information would continue to volunteer information needed to develop and maintain safety standards. The public interest is served by assuring a free flow of relevant information to the regulatory Page 422 U. S. 267 authorities from the airlines. Congress could appropriately conclude that the public interest was better served by guaranteeing confidentiality in order to secure the maximum amount of information relevant to safety. The wisdom of the balance struck by Congress is not open to judicial scrutiny.It was inescapable that some regulatory authorities be vested with broad, flexible discretion, the exercise of which was made subject to continuing scrutiny by Congress. Following passage of the Act,"[g]eneral oversight into the administration of the Freedom of Information Act [was] exercised by the [House] Foreign Operations and Government Information Subcommittee and the Senate Subcommittee on Administrative Practice and Procedure."H.R.Rep. No. 92-1419, pp. 3-4 (1972). It is not insignificant that this overall scrutiny of the Act in 1972 brought no change in Exemption 3. Indeed, when Congress amended the Freedom of Information Act in 1974, it reaffirmed the continued vitality of this particular exemption, covering statutes vesting in the agencies wide authority. S.Conf.Rep. No. 93-1200, p. 12 (1974); H.R.Conf.Rep. No. 91380, p. 12 (1974).Moreover, Congress amended the Act in 1974 to require that all agencies submit to each House, on an annual basis, "the number of determinations made by such agency not to comply with requests for records . . . and the reasons for each such determination." 88 Stat. 1564, 5 U.S.C. § 552(d)(1) (1970 ed., Supp. IV). In light of this continuing close scrutiny, we are bound to assume that Congress exercised an informed judgment as to the needs of the FAA, and that it was persuaded as to the necessity, or at least of the practical compatibility, of both statutes.Reversed

U.S. Supreme CourtFAA Administrator v. Robertson, 422 U.S. 255 (1975)Administrator, Federal Aviation Administration v. RobertsonNo. 74-450Argued April 15, 1975Decided June 24, 1975422 U.S. 255SyllabusRespondents requested the Federal Aviation Administration (FAA) to make available Systems Worthiness Analysis Program (SWAP) Reports which consist of the FAA's analyses of the operation and maintenance performance of commercial airlines. Section 1104 of the Federal Aviation Act of 1958 permits the FAA Administrator, upon receiving an objection to public disclosure of information in a report, to withhold disclosure when, in his judgment, it would adversely affect the objecting party's interest and is not required in the public's interest. The Administrator declined to make the reports available upon receiving an objection from the Air Transport Association, which claimed that confidentiality was necessary to the effectiveness of the program. Respondents sued in the District Court seeking, inter alia, the requested documents. The District Court held that the documents were "as a matter of law, public and non-exempt" within the meaning of the Freedom of Information Act (FOIA). The Court of Appeals affirmed the judgment of the District Court "insofar as appellants rely upon Exemption (3)" of the FOIA.Held: The SWAP Reports are exempt from public disclosure under Exemption 3 of the FOIA as being "specifically exempted from disclosure by statute." Pp. 422 U. S. 261-267.(a) Exemption 3 contains no "built-in" standard as do some of the exemptions under the FOIA, and the language is sufficiently ambiguous to require resort to the legislative history. That history reveals that Congress was "aware of the necessity to deal expressly with inconsistent laws," and, as indicated in its committee report, did not intend, in enacting the FOIA, to modify the numerous statutes "which restrict public access to specific Government records." Respondents can prevail only if the FOIA is read to repeal by implication all such statutes. To interpret "specific" as used in such committee reference as meaning that Exemption 3 applies only to precisely named or described documents would be asking Congress to perform an impossible task, Page 422 U. S. 256 and would imply that Congress had undertaken to reassess every delegation of authority to withhold information that it had made before the passage of the FOIA in 1966, a task that the legislative history clearly shows it did not undertake. Pp. 261-266.(b) The broad discretion vested by Congress in the FAA under § 1104 to withhold information from the public is not necessarily inconsistent with Congress' intent in enacting the FOIA to replace the broad standard of the public disclosure section of the Administrative Procedure Act. Congress could appropriately conclude that the public interest in air transport safety was better served by guaranteeing confidentiality of information necessary to secure from the airlines the maximum amount of information relevant to safety, and Congress' wisdom in striking such a balance is not open to judicial scrutiny. Pp. 422 U. S. 266-267.162 U.S.App.D.C. 298, 498 F.2d 1031, reversed.BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 422 U. S. 268. DOUGLAS and BRENNAN, JJ., filed a dissenting statement, post, p. 422 U. S. 268.

1989_89-393

Justice MARSHALL delivered the opinion of the Court.This case presents the question whether a trustee in bankruptcy may "avoid" (i.e., recover) from the Internal Revenue Service payments of certain withholding and excise taxes that the debtor made before it filed for bankruptcy. We hold that the funds paid here were not the property of the debtor prior to payment; instead, they were held in trust by the debtor for the IRS. We accordingly conclude that the trustee may not recover the funds.American International Airways, Inc., was a commercial airline. As an employer, AIA was required to withhold federal income taxes and to collect Federal Insurance Contributions Act taxes from its employees' wages. 26 U.S.C. § 3402(a) (income taxes); § 3102(a) (FICA taxes). As an airline, it was required to collect excise taxes from its customers for payment to the IRS. § 4291. Because the amount of these taxes is "held to be a special fund in trust for the United States," § 7501, they are often called "trust-fund Page 496 U. S. 56 taxes." See, e.g., Slodov v. United States, 436 U. S. 238, 436 U. S. 241 (1978). By early 1984, AIA had fallen behind in its payments of its trust fund taxes to the Government. In February of that year, the IRS ordered AIA to deposit all trust fund taxes it collected thereafter into a separate bank account. AIA established the account, but did not deposit funds sufficient to cover the entire amount of its trust fund tax obligations. It nonetheless remained current on these obligations through June 1984, paying the IRS $695,000 from the separate bank account and $946,434 from its general operating funds. AIA and the IRS agreed that all of these payments would be allocated to specific trust fund tax obligations.On July 19, 1984, AIA petitioned for relief from its creditors under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq. (1982 ed.). AIA unsuccessfully operated as a debtor in possession for three months. Accordingly, on September 19, the Bankruptcy Court appointed petitioner Harry P. Begier trustee and converted the case to a Chapter 7 liquidation. 11 U.S.C. § 701 et seq. (1982 ed.). Among the powers of a Chapter 7 trustee is the power under § 547(b) [Footnote 1] to avoid certain payments made by the Page 496 U. S. 57 debtor that would"enabl[e] a creditor to receive payment of a greater percentage of his claim against the debtor than he would have received if the transfer had not been made and he had participated in the distribution of the assets of the bankrupt estate."H.R.Rep. No. 95-595, p. 177 (1977), U.S.Code Cong. & Admin. News 1978, pp. 5787, 6138. Seeking to exercise his avoidance power, Begier filed an adversary action against the Government to recover the entire amount that AIA had paid the IRS for trust fund taxes during the 90 days before the bankruptcy filing.The Bankruptcy Court found for the Government in part and for the trustee in part. In re American International Airways, Inc., 83 B.R. 324 (ED Pa.1988). It refused to permit the trustee to recover any of the money AIA had paid out of the separate account on the theory that AIA had held that money in trust for the IRS. Id. at 327. It allowed the trustee to avoid most of the payments that AIA had made out of its general accounts, however, holding that"only where a tax trust fund is actually established by the debtor and the taxing authority is able to trace funds segregated by the debtor in a trust account established for the purpose of paying the taxes in question would we conclude that such funds are not property of the debtor's estate."Id. at 329. The District Court affirmed. App. to Pet. for Cert. A-22-A26. On appeal by the Government, the Third Circuit reversed, holding that any pre-petition payment of trust fund taxes is a payment of funds that are not the debtor's property, and that such a payment is therefore not an avoidable preference. 878 F.2d 762 (1989). [Footnote 2] We affirm. Page 496 U. S. 58IIAEquality of distribution among creditors is a central policy of the Bankruptcy Code. According to that policy, creditors of equal priority should receive pro rata shares of the debtor's property. See, e.g., 11 U.S.C. § 726(b) (1982 ed.); H.R.Rep. No. 95-585, supra, at 177-178. Section 547(b) furthers this policy by permitting a trustee in bankruptcy to avoid certain preferential payments made before the debtor files for bankruptcy. This mechanism prevents the debtor from favoring one creditor over others by transferring property shortly before filing for bankruptcy. Of course, if the debtor transfers property that would not have been available for distribution to his creditors in a bankruptcy proceeding, the policy behind the avoidance power is not implicated. The reach of § 547(b)'s avoidance power is therefore limited to transfers of "property of the debtor."The Bankruptcy Code does not define "property of the debtor." Because the purpose of the avoidance provision is to preserve the property includable within the bankruptcy estate -- the property available for distribution to creditors -- "property of the debtor" subject to the preferential transfer provision is best understood as that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings. For guidance, Page 496 U. S. 59 then, we must turn to § 541, which delineates the scope of "property of the estate" and serves as the post-petition analog to § 547(b)'s "property of the debtor." [Footnote 3]Section 541(a)(1) provides that the "property of the estate" includes "all legal or equitable interests of the debtor in property as of the commencement of the case." Section 541(d) provides:"Property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest . . . becomes property of the estate under subsection (a) of this section only to the extent of the debtor's legal title to such property, but not to the extent of any equitable interest in such property that the debtor does not hold."Because the debtor does not own an equitable interest in property he holds in trust for another, that interest is not "property of the estate." Nor is such an equitable interest "property of the debtor" for purposes of § 547(b). As the parties agree, then, the issue in this case is whether the money AIA transferred from its general operating accounts to the IRS was property that AIA had held in trust for the IRS. Page 496 U. S. 60BWe begin with the language of 26 U.S.C. § 7501, the Internal Revenue Code's trust fund tax provision:"Whenever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States."The statutory trust extends, then, only to "the amount of tax so collected or withheld." Begier argues that a trust fund tax is not "collected or withheld" until specific funds are either sent to the IRS with the relevant return or placed in a segregated fund. AIA neither put the funds paid from its general operating accounts in a separate account nor paid them to the IRS before the beginning of the preference period. Begier therefore contends that no trust was ever created with respect to those funds, and that the funds paid to the IRS were therefore property of the debtor.We disagree. The Internal Revenue Code directs "every person receiving any payment for facilities or services" subject to excise taxes to "collect the amount of the tax from the person making such payment." § 4291. It also requires that an employer "collec[t]" FICA taxes from its employees "by deducting the amount of the tax from the wages as and when paid." § 3102(a) (emphasis added). Both provisions make clear that the act of "collecting" occurs at the time of payment -- the recipient's payment for the service in the case of excise taxes and the employer's payment of wages in the case of FICA taxes. The mere fact that AIA neither placed the taxes it collected in a segregated fund nor paid them to the IRS does not somehow mean that AIA never collected the taxes in the first place.The same analysis applies to taxes the Internal Revenue Code requires that employers "withhold." Section 3402(a)(1) requires that "every employer making payment of wages shall deduct and withhold upon such wages [the employee's federal income tax]." (Emphasis added.) Withholding thus Page 496 U. S. 61 occurs at the time of payment to the employee of his net wages. S.Rep. No. 95-1106, p. 33 (1978) ("[A]ssume that a debtor owes an employee $100 for salary on which there is required withholding of $20. If the debtor paid the employee $80, there has been $20 withheld. If, instead, the debtor paid the employee $85, there has been withholding of $15 (which is not property of the debtor's estate in bankruptcy)"). See Slodov, 436 U.S. at 436 U. S. 243 (stating that "[t]here is no general requirement that the withheld sums be segregated from the employer's general funds," and thereby necessarily implying that the sums are "withheld" whether or not segregated). The common meaning of "withholding" supports our interpretation. See Webster's Third New International Dictionary 2627 (1981) (defining "withholding" to mean "the act or procedure of deducting a tax payment from income at the source") (emphasis added).Our reading of § 7501 is reinforced by § 7512, which permits the IRS, upon proper notice, to require a taxpayer who has failed timely "to collect, truthfully account for, or pay over [trust fund taxes]", or who has failed timely "to make deposits, payments, or returns of such tax," § 7512(a)(1), to "deposit such amount in a separate account in a bank . . . and . . . keep the amount of such taxes in such account until payment over to the United States," § 7512(b). If we were to read § 7501 to mandate segregation as a prerequisite to the creation of the trust, § 7512's requirement that funds be segregated in special and limited circumstances would become superfluous. Moreover, petitioner's suggestion that we read a segregation requirement into § 7501 would mean that an employer could avoid the creation of a trust simply by refusing to segregate. Nothing in § 7501 indicates, however, that Congress wanted the IRS to be protected only insofar as dictated by the debtor's whim. We conclude, therefore, that AIA created a trust within the meaning of § 7501 at the moment the relevant payments (from customers to AIA for excise Page 496 U. S. 62 taxes and from AIA to its employees for FICA and income taxes) were made.COur holding that a trust for the benefit of the IRS existed is not alone sufficient to answer the question presented by this case: whether the particular dollars that AIA paid to the IRS from its general operating accounts were "property of the debtor." Only if those particular funds were held in trust for the IRS do they escape characterization as "property of the debtor." All § 7501 reveals is that AIA at one point created a trust for the IRS; that section provides no rule by which we can decide whether the assets AIA used to pay the IRS were assets belonging to that trust.In the absence of specific statutory guidance on how we are to determine whether the assets transferred to the IRS were trust property, we might naturally begin with the common law rules that have been created to answer such questions about other varieties of trusts. Unfortunately, such rules are of limited utility in the context of the trust created by § 7501. Under common law principles, a trust is created in property; a trust therefore does not come into existence until the settlor identifies an ascertainable interest in property to be the trust res. G. Bogert, Law of Trusts and Trustees § 111 (rev.2d ed.1984); 1A W. Fratcher, Scott on Trusts § 76 (4th ed.1987). A § 7501 trust is radically different from the common law paradigm, however. That provision states that "the amount of [trust fund] tax . . . collected or withheld shall be held to be a special fund in trust for the United States." (Emphasis added.) Unlike a common law trust, in which the settlor sets aside particular property as the trust res, § 7501 creates a trust in an abstract "amount" -- a dollar figure not tied to any particular assets -- rather than in the actual dollars withheld. [Footnote 4] Common law tracing rules, designed Page 496 U. S. 63 for a system in which particular property is identified as the trust res, are thus unhelpful in this special context.Federal law delineating the nature of the relationship between the § 7501 trust and preferential transfer rules is limited. The only case in which we have explored that topic at any length is United States v. Randall, 401 U. S. 513 (1971), a case dealing with a post-petition transfer of property to discharge trust fund tax obligations that the debtor had accrued pre-petition. There, a court had ordered a debtor in possession to maintain a separate account for its withheld federal income and FICA taxes, but the debtor did not comply. When the debtor was subsequently adjudicated a bankrupt, the United States sought to recover from the debtor's general assets the amount of withheld taxes ahead of the expenses of the bankruptcy proceeding. The Government argued that the debtor held the amount of taxes due in trust for the IRS, and that this amount could be traced to the funds the debtor had in its accounts when the bankruptcy petition was filed. The trustee maintained that no trust had been created because the debtor had not segregated the funds. The Court declined directly to address either of these contentions. Id. at 401 U. S. 515. Rather, the Court simply refused to permit the IRS to recover the taxes ahead of administrative expenses, stating that"the statutory policy of subordinating taxes to costs and expenses of administration would not be served by creating or enforcing trusts which eat up an estate, leaving little or nothing for creditors and court officers whose goods and services created the assets."Id. at 401 U. S. 517.In 1978, Congress fundamentally restructured bankruptcy law by passing the new Bankruptcy Code. Among the changes Congress decided to make was a modification of the rule this Court had enunciated in Randall under the old Bankruptcy Act. The Senate bill attacked Randall directly, providing in § 541 that trust fund taxes withheld or collected Page 496 U. S. 64 prior to the filing of the bankruptcy petition were not "property of the estate." See S.Rep. No. 95-1106, p. 33 (1978). See also ibid. ("These amounts will not be property of the estate regardless of whether such amounts have been segregated from other assets of the debtor by way of a special account, fund, or otherwise, or are deemed to be a special fund in trust pursuant to provisions of applicable tax law") (footnote omitted). The House bill did not deal explicitly with the problem of trust fund taxes, but the House Report stated that "property of the estate" would not include property held in trust for another. See H.R.Rep. No. 95-595, p. 368 (1977), U.S.Code Cong. & Admin. News 1978, p. 6321. Congress was unable to hold a conference, so the Senate and House floor managers met to reach compromises on the differences between the two bills. See 124 Cong.Rec. 32392 (1978) (remarks of Rep. Edwards); Klee, Legislative History of the New Bankruptcy Law, 28 DePaul L.Rev. 941, 953-954 (1979). The compromise reached with respect to the relevant portion of § 541, which applies to post-petition transfers, was embodied in the eventually enacted House amendment, and explicitly provided that "in the case of property held in trust, the property of the estate includes the legal title, but not the beneficial interest in the property." 124 Cong.Rec., at 32417 (remarks of Rep. Edwards). Compare id. at 32363 (text of House amendment). Accordingly, the Senate language specifying that withheld or collected trust fund taxes are not part of the bankruptcy estate was deleted as"unnecessary, since property of the estate does not include the beneficial interest in property held by the debtor as a trustee. Under [§ 7501], the amounts of withheld taxes are held to be a special fund in trust for the United States."Id. at 32417 (remarks of Rep. Edwards). [Footnote 5] Page 496 U. S. 65Representative Edwards discussed the effects of the House language on the rule established by Randall, indicating that the House amendment would supplant that rule:"[A] serious problem exists where 'trust fund taxes' withheld from others are held to be property of the estate where the withheld amounts are commingled with other assets of the debtor. The courts should permit the use of reasonable assumptions under which the Internal Revenue Service, and other tax authorities, can demonstrate that amounts of withheld taxes are still in the possession of the debtor at the commencement of the case."Ibid. The context of Representative Edwards' comment makes plain that he was discussing whether a post-petition payment of trust fund taxes involved "property of the estate." This focus is not surprising, given that Randall, the case Congress was addressing, involved a post-petition demand for payment by the IRS. But Representative Edwards' discussion also applies to the question whether a pre-petition payment is made from "property of the debtor." We have explained that "property of the debtor" is that property that would have been part of the estate had it not been transferred before the commencement of bankruptcy proceedings. Supra, at 2262-2263. The same "reasonable assumptions" therefore apply in both contexts.The strict rule of Randall thus did not survive the adoption of the new Bankruptcy Code. But by requiring the IRS to "demonstrate that amounts of withheld taxes are still in the possession of the debtor at the commencement of the case [i.e., at the filing of the petition]," 124 Cong.Rec. at 32417 (remarks of Rep. Edwards), Congress expected that the IRS would have to show some connection between the § 7501 trust Page 496 U. S. 66 and the assets sought to be applied to a debtor's trust fund tax obligations. See United States v. Whiting Pools, Inc., 462 U. S. 198, 462 U. S. 205, n. 10 (1983) (IRS cannot exclude funds from the estate if it cannot trace them to § 7501 trust property). The question in this case is how extensive the required nexus must be. The Bankruptcy Code provides no explicit answer, and Representative Edwards' admonition that courts should "permit the use of reasonable assumptions" does not add much. The House Report does, however, give sufficient guidance regarding those assumptions to permit us to conclude that the nexus requirement is satisfied here. That Report states:"A payment of withholding taxes constitutes a payment of money held in trust under Internal Revenue Code § 7501(a), and thus will not be a preference because the beneficiary of the trust, the taxing authority, is in a separate class with respect to those taxes, if they have been properly held for payment, as they will have been if the debtor is able to make the payments."H.R.Rep. No. 95-595, supra, at 373, U.S.Code Cong. & Admin. News 1978, p. 6329. [Footnote 6] Under a literal reading of the above passage, the bankruptcy trustee could not avoid any voluntary pre-petition payment of trust fund taxes, regardless of the source of the funds. As the House Report expressly states, the limitation that the funds must "have been properly held for payment" is satisfied "if the debtor is able to make the payments." The debtor's act of voluntarily paying its trust fund tax obligation Page 496 U. S. 67 therefore is alone sufficient to establish the required nexus between the "amount" held in trust and the funds paid. We adopt this literal reading. In the absence of any suggestion in the Bankruptcy Code about what tracing rules to apply, we are relegated to the legislative history. The courts are directed to apply "reasonable assumptions" to govern the tracing of funds, and the House Report identifies one such assumption to be that any voluntary pre-petition payment of trust fund taxes out of the debtor's assets is not a transfer of the debtor's property. Nothing in the Bankruptcy Code or its legislative history casts doubt on the reasonableness of that assumption. Other rules might be reasonable, too, but the only evidence we have suggests that Congress preferred this one. We see no reason to disregard that evidence.IIIWe hold that AIA's payments of trust fund taxes to the IRS from its general accounts were not transfers of "property of the debtor," but were instead transfers of property held in trust for the Government pursuant to § 7501. Such payments therefore cannot be avoided as preferences. The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtBegier v. IRS, 496 U.S. 53 (1990)Begier v. Internal Revenue ServiceNo. 89-393Argued March 27, 1990Decided June 4, 1990496 U.S. 53SyllabusThe Internal Revenue Code directs "every person receiving any payment for facilities or services" subject to excise taxes to "collect the amount of the tax from the person making such payment." 26 U.S.C. § 4291. It also requires an employer to "collect" Federal Insurance Contributions Act taxes from its employees "by deducting the amount of the tax from the wages as and when paid," § 3102(a), and to "deduct and withhold upon such wages [the employee's federal income tax]," § 3402(a)(1). The amount of taxes "collected or withheld" is "held to be in a special fund in trust for the United States." § 7501. Thus, these taxes are often called "trust-fund taxes." After American International Airlines, Inc., fell behind in its trust-fund tax payments, the Internal Revenue Service, pursuant to § 7512, ordered it to deposit all future taxes collected into a separate bank account. AIA established the account, but did not deposit funds sufficient to cover the entire amount of its obligations. Nonetheless, it remained current on the obligations, paying part of them from the separate bank account and part from its general operating funds. In a subsequent liquidation proceeding under the Bankruptcy Code, petitioner Begier was appointed AIA's trustee. Seeking to exercise his power under § 547(b) of the Bankruptcy Code -- which permits a trustee to avoid certain preferential payments made before the debtor files for bankruptcy -- Begier filed an adversary action against the Government to recover the entire amount that AIA had paid the IRS for trust-fund taxes during the 90 days before the bankruptcy filing. The Bankruptcy Court refused to permit Begier to recover any of the money AIA had paid out of the separate account on the ground that AIA had held that money in trust for the IRS. However, it allowed him to avoid most of the payments made out of AIA's general accounts, holding that such funds were property of the debtor. The District Court affirmed, but the Court of Appeals reversed, holding that any pre-petition payment of trust-fund taxes is a payment of funds that are not the debtor's property, and that such a payment is therefore not an avoidable preference. Page 496 U. S. 54Held: AIA's trust-fund tax payments from its general accounts were transfers of property held in trust, and therefore cannot be avoided as preferences. Pp. 496 U. S. 58-67.(a) Equality of distribution among creditors is a central policy of the Bankruptcy Code that is furthered by § 547(b) to the extent that it permits a trustee to avoid pre-petition preferential transfers of "property of the debtor." Although not defined by the Code, "property of the debtor" is best understood to mean property that would have been part of the estate had it not been transferred. Its meaning is coextensive with its post-petition analog "property of the estate," which includes all of the debtor's legal or equitable interests in property as of the commencement of the case. § 541(a)(1). Since a debtor does not own an equitable interest in property he holds in trust for another, that interest is not "property of the estate" and, likewise, not "property of the debtor." Pp. 496 U. S. 58-59.(b) AIA created a trust within the meaning of 26 U.S.C. § 7501 at the moment the money was withheld or collected. The statutory trust extends to the amount of tax "collected or withheld," and the language of §§ 4291, 3102(a), and 3402(a)(1) makes clear that the acts of collecting and withholding occur at the time of payment -- the recipient's payment for the service in the case of excise taxes and the employer's payment of wages in the case of FICA and income taxes. The fact that AIA neither put the taxes in a segregated fund nor paid them to the IRS does not somehow mean that AIA never collected or withheld them in the first place. Mandating segregation as a prerequisite to the creation of a trust under § 7501 would make § 7512's requirement that funds may be segregated in special and limited circumstances superfluous and, would mean that an employer could avoid the creation of a trust simply by refusing to segregate. Pp. 496 U. S. 60-62.(c) The funds transferred from AIA's general accounts were trust assets. Neither § 7501 nor common law rules for tracing trust res offer guidance on how to determine whether the assets were trust property. And the strict rule of United States v. Randall, 401 U. S. 513 -- which prohibited the IRS from recovering withheld taxes ahead of the bankruptcy proceeding's administrative expenses -- did not survive the 1978 restructuring of the Bankruptcy Code. The 1978 Code's legislative history shows that Congress intended that the courts permit the use of "reasonable assumptions" under which the IRS could demonstrate that amounts of withheld taxes were still in the debtor's possession at the time the petition was filed. Thus, Congress expected that the IRS would have to show some connection between the trust and the assets sought to be applied to a debtor's trust fund obligations. While the Bankruptcy Code does not demonstrate how extensive this nexus must Page 496 U. S. 55 be, the legislative history identifies one reasonable assumption: that any voluntary pre-petition payment of trust fund taxes out of the debtor's assets is not a transfer of the debtor's property. Other rules might be reasonable, but the only evidence presented suggests that Congress preferred this one. Pp. 496 U. S. 62-67.878 F.2d 762 (CA3 1989), affirmed.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, WHITE, BLACKMUN, STEVENS, O'CONNOR, and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 496 U. S. 67.

1977_76-6942

MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner did not take the witness stand at his trial on a criminal charge in a state court. Over his objection, the trial judge instructed the jury not to draw any adverse inference from the petitioner's decision not to testify. The question before us is whether the giving of such an instruction over the defendant's objection violated the Constitution.IThe petitioner was brought to trial in an Oregon court on a charge of escape in the second degree. [Footnote 1] The evidence showed that he had been an inmate of the Multnomah County Correctional Institution, a minimum security facility in Multnomah County, Ore. On June 16, 1975, he received a special overnight pass requiring him to return by 10 o'clock the following evening. He did not return. The theory of the defense, supported by the testimony of a psychiatrist and three lay witnesses, was that the petitioner was not criminally responsible for his failure to return to the institution. [Footnote 2] Page 435 U. S. 335At the conclusion of the evidence, the trial judge informed counsel in chambers that he intended to include the following instruction in his charge to the jury:"Under the laws of this State, a defendant has the option to take the witness stand to testify in his or her own behalf. If a defendant chooses not to testify, such a circumstance gives rise to no inference or presumption against the defendant, and this must not be considered by you in determining the question of guilt or innocence."Defense counsel objected to the giving of that instruction, and, after it was given, the following colloquy took place in chambers:"[Defense Counsel]: . . . I have one exception.""I made this in Chambers prior to the closing statement. I told the Court that I did not want an instruction to the effect that the defendant doesn't have to take the stand, because I felt that that's like waving a red flag in front of the jury. . . .""THE COURT: The defendant did orally request the Court just prior to instructing that the Court not give the usual instruction to the effect that there are no inferences to be drawn against the defendant for failing to take the stand in his own behalf.""The Court felt that it was necessary to give that instruction in order to properly protect the defendant, and therefore, the defendant may have his exception."The Oregon Court of Appeals reversed the petitioner's conviction and ordered a new trial on the ground that"the better rule is to not give instructions ostensibly designed for defendant's benefit over the knowledgeable objection of competent defense counsel."25 Ore.App. 539, 542, 549 P.2d 1287, 1288. The Oregon Supreme Court reinstated the conviction, holding that the giving of the instruction over the objection of counsel Page 435 U. S. 336 did not violate the constitutional rights of the defendant. 277 Ore. 569, 5; 1 P.2d 612.The petitioner then sought review in this Court, claiming that the instruction infringed upon both his constitutional privilege not to be compelled to incriminate himself and his constitutional right to the assistance of counsel. Because of conflicting decisions in several other courts, [Footnote 3] we granted certiorari, 434 U.S. 889.IIAThe Fifth Amendment commands that no person "shall be compelled in any criminal case to be a witness against himself." This guarantee was held to be applicable against the States through the Fourteenth Amendment in Malloy v. Hogan, 378 U. S. 1. [Footnote 4] That case, decided in 1964, established that "the same standards" must attach to the privilege "in either a federal or state proceeding." Id. at 11. Less than a year Page 435 U. S. 337 later, the Court held in Griffin v. California, 380 U. S. 609, that it is a violation of this constitutional guarantee to tell a jury in a state criminal trial that a defendant's failure to testify supports an unfavorable inference against him. [Footnote 5]In Griffin, the prosecutor had encouraged the jury to draw adverse inferences from the defendant's failure to respond to the testimony against him. And the trial judge had instructed the jury that, as to evidence which the defendant might be expected to explain, his failure to testify could be taken"'into consideration as tending to indicate the truth of such evidence and as indicating that, among the inferences that may be reasonably drawn therefrom, those unfavorable to the defendant are the more probable.'"Id. at 380 U. S. 610. In setting aside the judgment of conviction, the Court held that the Constitution "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Id. at 380 U. S. 615. [Footnote 6]The Griffin opinion expressly reserved decision "on whether an accused can require . . . that the jury be instructed that his silence must be disregarded." Id. at 380 U. S. 615 n. 6. It is settled in Oregon, however, that a defendant has an absolute right to require such an instruction. State v. Patton, 208 Ore. Page 435 U. S. 338 610, 303 P.2d 513. [Footnote 7] The petitioner in the present case does not question this rule, nor does he assert that the instruction actually given was in any respect an erroneous statement of the law. His argument is, quite simply, that this protective instruction becomes constitutionally impermissible when given over the defendant's objection.In the Griffin case, the petitioner argues, the Court said that "comment on the refusal to testify" violates the constitutional privilege against compulsory self-incrimination, 380 U.S. at 380 U. S. 614, and thus the "comment" made by the trial judge over the defendant's objection in the present case was a literal violation of the language of the Griffin opinion. [Footnote 8] Quite apart from this semantic argument, the petitioner contends that it is an invasion of the privilege against compulsory self-incrimination, as that privilege was perceived in the Griffin case, for a trial judge to draw the jury's attention in any way to a defendant's failure to testify unless the defendant acquiesces. We cannot accept this argument, either in terms of the language of the Griffin opinion or in terms of the basic postulates of the Fifth and Fourteenth Amendments.It is clear from even a cursory review of the facts and the square holding of the Griffin case that the Court was there concerned only with adverse comment, whether by the prosecutor or the trial judge -- "comment by the prosecution on the accused's silence or instructions by the court that such silence Page 435 U. S. 339 is evidence of guilt." Id. at 380 U. S. 615. The Court reasoned that such adverse comment amounted to "a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." Id. at 380 U. S. 614.By definition, "a necessary element of compulsory self-incrimination is some kind of compulsion." Hoffa v. United States, 385 U. S. 293, 385 U. S. 304. The Court concluded in Griffin that unconstitutional compulsion was inherent in a trial where prosecutor and judge were free to ask the jury to draw adverse inferences from a defendant's failure to take the witness stand. [Footnote 9] But a judge's instruction that the jury must draw no adverse inferences of any kind from the defendant's exercise of his privilege not to testify is "comment" of an entirely different order. Such an instruction cannot provide the pressure on a defendant found impermissible in Griffin. On the contrary, its very purpose is to remove from the jury's deliberations any influence of unspoken adverse inferences. It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.The petitioner maintains, however, that whatever beneficent effect such an instruction may have in most cases, it may in some cases encourage the jury to draw adverse inferences from a defendant's silence, and, therefore, it cannot constitutionally be given in any case when a defendant objects to it. Specifically, the petitioner contends that, in a trial such as this one, where the defense was presented through several witnesses, the defendant can reasonably hope that the jury will not notice that he himself did not testify. In such circumstances, Page 435 U. S. 340 the giving of the cautionary instruction, he says, is like "waving a red flag in front of the jury."The petitioner's argument would require indulgence in two very doubtful assumptions: first, that the jurors have not noticed that the defendant did not testify and will not, therefore, draw adverse inferences on their own; [Footnote 10] second, that the jurors will totally disregard the instruction, and affirmatively give weight to what they have been told not to consider at all. [Footnote 11] Federal constitutional law cannot rest on speculative assumptions so dubious as these.Moreover, even if the petitioner's simile be accepted, it does not follow that the cautionary instruction in these circumstances violates he privilege against compulsory self-incrimination. The very purpose of a jury charge is to flag the jurors' attention to concepts that must not be misunderstood, such as reasonable doubt and burden of proof. To instruct them in the meaning of the privilege against compulsory self-incrimination is no different.It may be wise for a trial judge not to give such a cautionary instruction over a defendant's objection. And each State is, of course, free to forbid its trial judges from doing so as a matter of state law. We hold only that the giving of such an Page 435 U. S. 341 instruction over the defendant's objection does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments. [Footnote 12]BThe petitioner's second argument is based upon his constitutional right to counsel. Gideon v. Wainwright, 372 U. S. 335; Argersinger v. Hamlin, 407 U. S. 25. That right was violated, he says, when the trial judge refused his lawyer's request not to give the instruction in question, thus interfering with counsel's trial strategy. That strategy assertedly was based upon studious avoidance of any mention of the fact that the defendant had not testified.The argument is an ingenious one, but, as a matter of federal constitutional law, it falls of its own weight once the petitioner's primary argument has been rejected. In sum, if the instruction was itself constitutionally accurate, and if the giving of it over counsel's objection did not violate the Fifth and Fourteenth Amendments, then the petitioner's right to the assistance of counsel was not denied when the judge gave the instruction. To hold otherwise would mean that the constitutional right to counsel would be implicated in almost every wholly permissible ruling of a trial judge, if it is made over the objection of the defendant's lawyer.In an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel. But that right has never been understood to confer upon defense counsel the power to veto the wholly permissible actions of the trial judge. It is the judge, not counsel, who has the ultimate responsibility for the conduct of a fair and Page 435 U. S. 342 lawful trial."'[T]he judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law.' Quercia v. United States, 289 U. S. 466, 289 U. S. 469 (1933)."Geders v. United States, 425 U. S. 80, 425 U. S. 86.The trial judge in this case determined in the exercise of his duty to give the protective instruction in the defendant's interest. We have held that it was no violation of the defendant's constitutional privilege for him to do so, even over the objection of defense counsel. Yet the petitioner argues that his constitutional right to counsel means that this instruction could constitutionally be given only if his lawyer did not object to it. We cannot accept the proposition that the right to counsel, precious though it be, can operate to prevent a court from instructing a jury in the basic constitutional principles that govern the administration of criminal justice.For the reasons discussed in this opinion, the judgment of the Supreme Court of Oregon is affirmed.It is so ordered

U.S. Supreme CourtLakeside v. Oregon, 435 U.S. 333 (1978)Lakeside v. OregonNo. 76-6942Argued January 18, 1978Decided March 22, 1978435 U.S. 333Syllabus1. The giving by a state trial judge, over a criminal defendant's objection, of a cautionary instruction that the jury is not to draw any adverse inference from the defendant's decision not to testify in his behalf does not violate the privilege against compulsory self-incrimination guaranteed by the Fifth and Fourteenth Amendments. Pp. 435 U. S. 336-341.(a) Though in Griffin v. California, 380 U. S. 609, the Court stated that "comment on the refusal to testify" violates the constitutional privilege, the Court was there concerned only with adverse comment, whereas here the very purpose of the instruction is to remove from the jury's deliberations any influence of unspoken adverse inferences. Pp. 435 U. S. 338-339.(b) Petitioner's contention that such an instruction may encourage adverse inferences in a trial like his, where the defense was presented through several witnesses, would require indulgence, on which federal constitutional law cannot rest, in the dubious speculative assumptions (1) that the jurors have not noticed defendant's failure to testify and will not therefore draw adverse inferences on their own; and (2) that the jurors will totally disregard the trial judge's instruction. Pp. 435 U. S. 339-340.2. The challenged instruction does not deprive the objecting defendant of his right to counsel by interfering with his attorney's trial strategy. To hold otherwise would implicate the right to counsel in almost every permissible ruling of a trial judge if made over the objection of the defendant's lawyer. Pp. 435 U. S. 341-342.277 Ore. 569, 561 P.2d 612, affirmed.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined in part, post, p. 435 U. S. 342. BRENNAN, J., took no part in the consideration or decision of the case. Page 435 U. S. 334

1977_76-1151

MR. JUSTICE REHNQUIST delivered the opinion of the Court.In December, 1974, Ronald Biro, a uniformed police officer on assignment to patrol school crossings, entered respondent's place of business, the Sleepy Hollow Flower Shop, in North Tarrytown, N.Y. He went behind the customer counter and, in the words of Ichabod Crane, one of Tarrytown's more Page 435 U. S. 270 illustrious inhabitants of days gone past, "tarried," spending his short break engaged in conversation with his friend Lois Hennessey, an employee of the shop. During the course of the conversation, he noticed an envelope with money sticking out of it lying on the drawer of the cash register behind the counter. Biro picked up the envelope and, upon examining its contents, discovered that it contained not only money, but policy slips. He placed the envelope back on the register and, without telling Hennessey what he had seen, asked her to whom the envelope belonged. She replied that the envelope belonged to respondent Ceccolini, and that he had instructed her to give it to someone.The next day, Officer Biro mentioned his discovery to North Tarrytown detectives, who, in turn, told Lance Emory, an FBI agent. This very ordinary incident in the lives of Biro and Hennessey requires us, over three years later, to decide whether Hennessey's testimony against respondent Ceccolini should have been suppressed in his trial for perjury. Respondent was charged with that offense because he denied that he knew anything of, or was in any way involved with, gambling operations. Respondent was found guilty after a bench trial in the United States District Court for the Southern District of New York, but, immediately after the finding of guilt, the District Court granted respondent's motion to "suppress" the testimony of Hennessey because the court concluded that the testimony was a "fruit of the poisonous tree"; assuming respondent's motion for a directed verdict included a motion to set aside the verdict of guilty, the District Court granted the motion because it concluded that, without Hennessey's testimony, there was insufficient evidence of respondent's guilt. The Government appealed these rulings to the Court of Appeals for the Second Circuit.That court rightly concluded that the Government was entitled to appeal both the order granting the motion to suppress and the order setting aside the verdict of guilty, since Page 435 U. S. 271 further proceedings if the Government were successful on the appeal would not be barred by the Double Jeopardy Clause. [Footnote 1] 542 F.2d 136, 139-140 (1976). The District Court had sensibly first made its finding on the factual question of guilt or innocence, and then ruled on the motion to suppress; a reversal of these rulings would require no further proceedings in the District Court, but merely a reinstatement of the finding of guilt. United States v. Morrison, 429 U. S. 1 (1976); United States v. Wilson, 420 U. S. 332, 420 U. S. 352-353 (1975).The Government, however, was not successful on the merits of its appeal; the Court of Appeals, by a divided vote, affirmed the District Court's suppression ruling. 542 F.2d at 14142. We granted certiorari to consider the correctness of this ruling of the Court of Appeals. 431 U.S. 903 (1977).IDuring the latter part of 1973, the Federal Bureau of Investigation was exploring suspected gambling operations in North Tarrytown. Among the establishments under surveillance was respondent's place of business, which was a frequent and regular stop of one Francis Millow, himself a suspect in the investigation. While the investigation continued on a reduced scale after December 1973, [Footnote 2] surveillance of the flower Page 435 U. S. 272 shop was curtailed at that time. It was thus a full year after this discontinuance of FBI surveillance that Biro spent his patrol break behind the counter with Hennessey. When Biro's discovery of the policy slips was reported the following day to Emory, Emory was not fully informed of the manner in which Biro had obtained the information. Four months later, Emory interviewed Hennessey at her home for about half an hour in the presence of her mother and two sisters. He identified himself, indicated that he had learned through the local police department that she worked for respondent, and told her that the Government would appreciate any information regarding respondent's activities that she had acquired in the shop. Emory did not specifically refer to the incident involving Officer Biro. Hennessey told Emory that she was studying police science in college, and would be willing to help. She then related the events which had occurred during her visit with Officer Biro.In May, 1975, respondent was summoned before a federal grand jury, where he testified that he had never taken policy bets for Francis Millow at the flower shop. The next week, Hennessey testified to the contrary, and, shortly thereafter, respondent was indicted for perjury. [Footnote 3] Respondent waived a jury, and, with the consent of all parties, the District Court considered simultaneously with the trial on the merits respondent's motion to suppress both the policy slips and the testimony of Hennessey. At the conclusion of the evidence, the District Court excluded from its consideration "the envelope and the contents of the envelope," but nonetheless found respondent guilty of the offense charged. The court then, as previously Page 435 U. S. 273 described, granted respondent's motion to suppress the testimony of Hennessey, because she "first came directly to the attention of the government as a result of an illegal search" and the Government had not "sustained its burden of showing that Lois Henness[e]y's testimony definitely would have been obtained without the illegal search." App. to Pet. for Cert. 28a-29a.The Court of Appeals affirmed this ruling on the Government's appeal, reasoning that "the road to Miss Henness[e]y's testimony from Officer Biro's concededly unconstitutional search is both straight and uninterrupted." 542 F.2d at 142. The Court of Appeals also concluded that there was support in the record for the District Court's finding that the ongoing investigation would not have inevitably led to the evidence in question without Biro's discovery of the two policy slips. Id. at 141. Because of our traditional deference to the "two court rule," Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 336 U. S. 275 (1949), and the fact that the Government has not sought review of this latter ruling, we leave undisturbed this part of the Court of Appeals' decision. Because we decide that the Court of Appeals was wrong in concluding that there was insufficient attenuation between Officer Biro's search and Hennessey's testimony at the trial, we also do not reach the Government's contention that the exclusionary rule should not be applied when the evidence derived from the search is being used to prove a subsequent crime such as perjury.IIThe "road" to which the Court of Appeals analogized the train of events from Biro's discovery of the policy slips to Hennessey's testimony at respondent's trial for perjury is one of literally thousands of such roads traveled periodically between an original investigative discovery and the ultimate trial of the accused. The constitutional question under the Fourth Amendment was phrased in Wong Sun v. United States, 371 U. S. 471 (1963), as whether"the connection Page 435 U. S. 274 between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attenuated as to dissipate the taint.'"Id. at 371 U. S. 487, 371 U. S. 491. The question was, in turn, derived from the Court's earlier decision in Nardone v. United States, 308 U. S. 338, 308 U. S. 341 (1939), where Mr. Justice Frankfurter stated for the Court:"Here, as in the Silverthorne case [Silverthorne Lumber Co. v. United States], the facts improperly obtained do not 'become sacred and inaccessible. If knowledge of them is gained from an independent source, they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it' simply because it is used derivatively. 251 U.S. 435 U. S. 385, 251 U. S. 392.""In practice, this generalized statement may conceal concrete complexities. Sophisticated argument may prove a causal connection between information obtained through illicit wiretapping and the Government's proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint."This, of course, makes it perfectly clear, if indeed ever there was any doubt about the matter, that the question of causal connection in this setting, as in so many other questions with which the law concerns itself, is not to be determined solely through the sort of analysis which would be applicable in the physical sciences. The issue cannot be decided on the basis of causation in the logical sense alone, but necessarily includes other elements as well. And our cases subsequent to Nardone, supra, have laid out the fundamental tenets of the exclusionary rule, from which the elements that are relevant to the causal inquiry can be divined.An examination of these cases leads us to reject the Government's suggestion that we adopt what would, in practice, amount to a per se rule that the testimony of a live witness should not be excluded at trial no matter how close and proximate Page 435 U. S. 275 the connection between it and a violation of the Fourth Amendment. We also reaffirm the holding of Wong Sun, supra at 371 U. S. 485, that"verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion."We are of the view, however, that cases decided since Wong Sun significantly qualify its further observation that "the policies underlying the exclusionary rule [do not] invite any logical distinction between physical and verbal evidence." 371 U.S. at 371 U. S. 486. Rather, at least in a case such as this, where not only was the alleged "fruit of the poisonous tree" the testimony of a live witness, but, unlike Wong Sun, the witness was not a putative defendant, an examination of our cases persuades us that the Court of Appeals was simply wrong in concluding that, if the road were uninterrupted, its length was immaterial. Its length, we hold, is material, as are certain other factors enumerated below to which the court gave insufficient weight.In Stone v. Powell, 428 U. S. 465, 428 U. S. 486 (1976), we observed that,"despite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons."Recognizing not only the benefits but the costs, which are often substantial, of the exclusionary rule, we have said that "application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served," United States v. Calandra, 414 U. S. 338, 414 U. S. 348 (1974). In that case, we refused to require that illegally seized evidence be excluded from presentation to a grand jury. We have likewise declined to prohibit the use of such evidence for the purpose of impeaching a defendant who testifies in his own behalf. Walder v. United States, 347 U. S. 62 (1954).We have limited the standing requirement in the exclusionary rule context because the "additional benefits of extending Page 435 U. S. 276 the . . rule" to persons other than the ones subject to the illegal search are outweighed by the"further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth."Alderman v. United States, 394 U. S. 165, 394 U. S. 174-175 (1969). Even in situations where the exclusionary rule is plainly applicable, we have declined to adopt a "per se or but for' rule" that would make inadmissible any evidence, whether tangible or live witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest. Brown v. Illinois, 422 U. S. 590, 422 U. S. 603 (1975).Evaluating the standards for application of the exclusionary rule to live witness testimony in light of this balance, we are first impelled to conclude that the degree of free will exercised by the witness is not irrelevant in determining the extent to which the basic purpose of the exclusionary rule will be advanced by its application. This is certainly true when the challenged statements are made by a putative defendant after arrest, Wong Sun, supra at 371 U. S. 491; Brown v. Illinois, supra, and a fortiori is true of testimony given by nondefendants.The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness. [Footnote 4] Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And, evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live witness testimony Page 435 U. S. 277 than other kinds of. evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness' willingness to testify."The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence."Smith v. United States, 117 U.S.App.D.C. 1, 3-4, 324 F.2d 879 881-882 (1963) (Burger, J.) (footnotes omitted), cert. denied, 377 U.S. 954 (1964).Another factor which not only is relevant in determining the usefulness of the exclusionary rule in a particular context, but also seems to us to differentiate the testimony of all live witnesses -- even putative defendants -- from the exclusion of the typical documentary evidence, is that such exclusion would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Rules which disqualify knowledgeable witnesses from testifying at trial are, in the words of Professor McCormick, "serious obstructions to the ascertainment of truth"; accordingly, "[f]or a century, the course of legal evolution has been in the direction of sweeping away these obstructions." C. McCormick, Law of Evidence § 71 (1954). Alluding to the enormous cost engendered by Page 435 U. S. 278 such a permanent disability in an analogous context, we have specifically refused to hold that"making a confession under circumstances which preclude its use perpetually disables the confessor from making a usable one after those conditions have been removed."United States v. Bayer, 331 U. S. 532, 331 U. S. 541 (1947). For many of these same reasons, the Court has also held admissible at trial testimony of a witness whose identity was disclosed by the defendant's statement given after inadequate Miranda warnings. Michigan v. Tucker, 417 U. S. 433, 417 U. S. 450-451 (1974)."For, when balancing the interests involved, we must weigh the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce. . . . Here, respondent's own statement, which might have helped the prosecution show respondent's guilty conscience at trial, had already been excised from the prosecution's case pursuant to this Court's Johnson [v. New Jersey, 384 U. S. 719 (1966)] decision. To extend the excision further under the circumstances of this case and exclude relevant testimony of a third-party witness would require far more persuasive arguments than those advanced by respondent."In short, since the cost of excluding live witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required.This is not to say, of course, that live witness testimony is always or even usually more reliable or dependable than inanimate evidence. Indeed, just the opposite may be true. But a determination that the discovery of certain evidence is sufficiently unrelated to or independent of the constitutional violation to permit its introduction at trial is not a determination which rests on the comparative reliability of that evidence. Attenuation analysis, appropriately concerned with the differences between live witness testimony and inanimate evidence, Page 435 U. S. 279 can consistently focus on the factors enumerated above with respect to the former, but on different factors with respect to the latter.In holding that considerations relating to the exclusionary rule and the constitutional principles which it is designed to protect must play a factor in the attenuation analysis, we do no more than reaffirm an observation made by this Court half a century ago:"A criminal prosecution is more than a game in which the Government may be checkmated and the game lost merely because its officers have not played according to rule."McGuire v. United States, 273 U. S. 95, 273 U. S. 99 (1927). The penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve.IIIViewing this case in the light of the principles just discussed, we hold that the Court of Appeals erred in holding that the degree of attenuation was not sufficient to dissipate the connection between the illegality and the testimony. The evidence indicates overwhelmingly that the testimony given by the witness was an act of her own free will, in no way coerced or even induced by official authority as a result of Biro's discovery of the policy slips. Nor were the slips themselves used in questioning Hennessey. Substantial periods of time elapsed between the time of the illegal search and the initial contact with the witness, on the one hand, and between the latter and the testimony at trial, on the other. While the particular knowledge to which Hennessey testified at trial can be logically traced back to Biro's discovery of the policy slips, both the identity of Hennessey and her relationship with the respondent were well known to those investigating the case. There is, in addition, not the slightest evidence to suggest Page 435 U. S. 280 that Biro entered the shop or picked up the envelope with the intent of finding tangible evidence bearing on an illicit gambling operation, much less any suggestion that he entered the shop and searched with the intent of finding a willing and knowledgeable witness to testify against respondent. Application of the exclusionary rule in this situation could not have the slightest deterrent effect on the behavior of an officer such as Biro. The cost of permanently silencing Hennessey is too great for an evenhanded system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect.Obviously. no mathematical weight can be assigned to any of the factors which we have discussed, but, just as obviously, they all point to the conclusion that the exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object. The judgment of the Court of Appeals is accordinglyReversed

U.S. Supreme CourtUnited States v. Ceccolini, 435 U.S. 268 (1978)United States v. CeccoliniNo. 76-1151Argued December 5, 1977Decided March 21, 1978435 U.S. 268SyllabusA police officer (Biro), while taking a break in respondent's flower shop and conversing with an employee of the shop (Hennessey), noticed an envelope with money protruding therefrom lying on the cash register. Upon examination, he found it contained not only money, but policy slips. Biro then placed the envelope back on the register and, without telling Hennessey what he had found, asked her to whom the envelope belonged. She told him it belonged to respondent. Biro's finding was reported to local detectives and to the FBI, who interviewed Hennessey some four months later without referring to the incident involving Biro. About six months after that incident, respondent was summoned before a federal grand jury, where he testified that he had never taken policy bets at his shop, but Hennessey testified to the contrary, and, shortly thereafter, respondent was indicted for perjury. Hennessey testified against respondent at his trial, but, after a finding of guilt, the District Court granted respondent's motion to suppress Hennessey's testimony and set aside that finding. The Court of Appeals affirmed, noting that the "road" to that testimony from the concededly unconstitutional search was "both straight and uninterrupted."Held: The Court of Appeals erred in concluding that the degree of attenuation between Biro's search of the envelope and Hennessey's testimony at the trial was not sufficient to dissipate the connection between the illegality of the search and challenged testimony. Pp. 435 U. S. 273-280.(a) In determining whether the exclusionary rule, with its deterrent purpose, should be applied, its benefits should be balanced against its costs, and, in evaluating the standards for application of the rule to live witness testimony in light of this balance, material factors to be considered are the length of the "road" between the Fourth Amendment violation and the witness' testimony; the degree of free will exercised by the witness; and the fact that exclusion of the witness' testimony would perpetually disable the witness from testifying about relevant and material facts regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Pp. 435 U. S. 273-279.(b) Here, where the evidence indicates overwhelmingly that Hennessey's Page 435 U. S. 269 testimony was an act of her own free will in no way coerced or induced by official authority as a result of Biro's discovery of the policy slips where substantial time elapsed between the illegal search and the initial contact with the witness and between the latter and her trial testimony, and where both Hennessey's identity and her relationship with respondent were well known to the investigating officers, and there is no evidence that Biro entered the shop or picked up the envelope with the intent of finding evidence of an illicit gambling operation, application of the exclusionary rule could not have the slightest deterrent effect on the behavior of an officer such as Biro, and the cost of permanently silencing Hennessey is too great for an evenhanded system of law enforcement to bear in order to secure such a speculative and very likely negligible deterrent effect. Pp. 435 U. S. 279-280.(c) The exclusionary rule should be invoked with much greater reluctance where the claim is based on a causal relationship between a constitutional violation and the discovery of a live witness than when a similar claim is advanced to support suppression of an inanimate object. P. 435 U. S. 280.542 F.2d 136, reversed.REHNQUIST, J., delivered the opinion of the Court, in which STEWART, WHITE, POWELL, and STEVENS, JJ., joined. BURGER, C.J., filed an opinion concurring in the judgment, post, p. 435 U. S. 280. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 435 U. S. 285. BLACKMUN, J., took no part in the consideration or decision of the case.

1996_95-1649

Carla J. Stovall, Attorney General of Kansas, argued the cause for the petitioner in No. 95-1649 and respondent in No. 95-9075. With her on the briefs were Stephen R. MeAll ister, Special Assistant Attorney General, Bernard Nash, James van R. Springer, and Laura B. Feigin.349Thomas J. Weilert argued the cause for Hendricks in both cases. With him on the briefs were James W Ellis and David Gottlieb.ttBriefs of amici curiae urging reversal were filed for the State of Washington et al. by Christine Q Gregoire, Attorney General of Washington, and Sarah Blackman Sappington, Assistant Attorney General, Charles F. C. Ruff, Corporation Counsel of the District of Columbia, Sebastian Aloot, Acting Attorney General of the Northern Mariana Islands, and by the Attorneys General for their respective jurisdictions as follows:Jeff Sessions of Alabama, Malaetasi Togafu of American Samoa, Grant Woods of Arizona, Winston Bryant of Arkansas, Daniel E. Lungren of California, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Calvin E. Holloway, Sr., of Guam, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Pamela Fanning Carter of Indiana, Thomas J. Miller of Iowa, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Peter Verniero of New Jersey, Tom Udall of New Mexico, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Thomas W Corbett, Jr., of Pennsylvania, Pedro R. Pierluisi of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles Molony Condon of South Carolina, Mark W Barnett of South Dakota, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, Julio A. Brady of the Virgin Islands, James S. Gilmore III of Virginia, and William U. Hill of Wyoming; for the State of Wisconsin by James E. Doyle, Attorney General, and Sally L. Wellman and Mary E. Burke, Assistant Attorneys General; for the Menninger Foundation et al. by Philip Allen Lacovara, James C. Geoly, and Robert Teir; 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 American Civil Liberties Union et al. by Scott A. W Johnson, Laura J. Buckland, Steven R. Shapiro, Christopher A. Hansen, and Bruce Winick; for the American Psychiatric Association by Richard G. Taranto; for the N ational Association of Criminal Defense Lawyers et al. by David A. Reiser, Jennifer P. Lyman, Barbara E. Bergman, and James F. Vano; for the National Mental Health Association by Ira A. Burnim; for the SeattleKing County Defender Association et al. by Robert C. Boruchowitz, Addie350JUSTICE THOMAS delivered the opinion of the Court.In 1994, Kansas enacted the Sexually Violent Predator Act, which establishes procedures for the civil commitment of persons who, due to a "mental abnormality" or a "personality disorder," are likely to engage in "predatory acts of sexual violence." Kan. Stat. Ann. § 59-29a01 et seq. (1994). The State invoked the Act for the first time to commit Leroy Hendricks, an inmate who had a long history of sexually molesting children, and who was scheduled for release from prison shortly after the Act became law. Hendricks challenged his commitment on, inter alia, "substantive" due process, double jeopardy, and ex post facto grounds. The Kansas Supreme Court invalidated the Act, holding that its precommitment condition of a "mental abnormality" did not satisfy what the court perceived to be the "substantive" due process requirement that involuntary civil commitment must be predicated on a finding of "mental illness." In re Hendricks, 259 Kan. 246, 261, 912 P. 2d 129, 138 (1996). The State of Kansas petitioned for certiorari. Hendricks subsequently filed a cross-petition in which he reasserted his federal double jeopardy and ex post facto claims. We granted certiorari on both the petition and the cross-petition, 518 U. S. 1004 (1996), and now reverse the judgment below.I AThe Kansas Legislature enacted the Sexually Violent Predator Act (Act) in 1994 to grapple with the problem of managing repeat sexual offenders.1 Although Kansas al-Hailstorks, John Stuart, Eric Janus, John T. Philipsborn, and Bernadette Foley; and for the Washington State Psychiatric Association by David A. Summers.David B. Robbins filed a brief for the Association for the Treatment of Sexual Abusers as amicus curiae.1 Subsequent to Hendricks' commitment, the Kansas Legislature amended the Act in ways not relevant to this action. See, e. g., Kan. Stat.351ready had a statute addressing the involuntary commitment of those defined as "mentally ill," the legislature determined that existing civil commitment procedures were inadequate to confront the risks presented by "sexually violent predators." In the Act's preamble, the legislature explained:"[A] small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the [general involuntary civil commitment statute] .... In contrast to persons appropriate for civil commitment under the [general involuntary civil commitment statute], sexually violent predators generally have anti-social personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. The legislature further finds that sexually violent predators' likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedure ... is inadequate to address the risk these sexually violent predators pose to society. The legislature further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs of this population are very long term and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the [general involuntary civil commitment statute]." Kan. Stat. Ann. § 59-29a01 (1994).As a result, the legislature found it necessary to establish "a civil commitment procedure for the long-term care andAnn. § 59-29a03 (Supp. 1996) (changing notification period from 60 to 90 days); § 59-29a04 (requiring state attorney general to initiate commitment proceedings).352treatment of the sexually violent predator." Ibid. The Act defined a "sexually violent predator" as:"any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." § 59-29a02(a).A "mental abnormality" was defined, in turn, as a "congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others." § 59-29a02(b).As originally structured, the Act's civil commitment procedures pertained to: (1) a presently confined person who, like Hendricks, "has been convicted of a sexually violent offense" and is scheduled for release; (2) a person who has been "charged with a sexually violent offense" but has been found incompetent to stand trial; (3) a person who has been found "not guilty by reason of insanity of a sexually violent offense"; and (4) a person found "not guilty" of a sexually violent offense because of a mental disease or defect. § 5929a03(a), § 22-3221 (1995).The initial version of the Act, as applied to a currently confined person such as Hendricks, was designed to initiate a specific series of procedures. The custodial agency was required to notify the local prosecutor 60 days before the anticipated release of a person who might have met the Act's criteria. § 59-29a03. The prosecutor was then obligated, within 45 days, to decide whether to file a petition in state court seeking the person's involuntary commitment. § 5929a04. If such a petition were filed, the court was to determine whether "probable cause" existed to support a finding that the person was a "sexually violent predator" and thus eligible for civil commitment. Upon such a determination, transfer of the individual to a secure facility for professional evaluation would occur. § 59-29a05. After that evaluation,353a trial would be held to determine beyond a reasonable doubt whether the individual was a sexually violent predator. If that determination were made, the person would then be transferred to the custody of the Secretary of Social and Rehabilitation Services (Secretary) for "control, care and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large." § 59-29a07(a).In addition to placing the burden of proof upon the State, the Act afforded the individual a number of other procedural safeguards. In the case of an indigent person, the State was required to provide, at public expense, the assistance of counsel and an examination by mental health care professionals. § 59-29a06. The individual also received the right to present and cross-examine witnesses, and the opportunity to review documentary evidence presented by the State. § 59-29a07.Once an individual was confined, the Act required that "[t]he involuntary detention or commitment ... shall conform to constitutional requirements for care and treatment." § 59-29a09. Confined persons were afforded three different avenues of review: First, the committing court was obligated to conduct an annual review to determine whether continued detention was warranted. § 59-29a08. Second, the Secretary was permitted, at any time, to decide that the confined individual's condition had so changed that release was appropriate, and could then authorize the person to petition for release. § 59-29a10. Finally, even without the Secretary's permission, the confined person could at any time file a release petition. § 59-29a11. If the court found that the State could no longer satisfy its burden under the initial commitment standard, the individual would be freed from confinement.BIn 1984, Hendricks was convicted of taking "indecent liberties" with two 13-year-old boys. After serving nearly 10 years of his sentence, he was slated for release to a halfway354house. Shortly before his scheduled release, however, the State filed a petition in state court seeking Hendricks' civil confinement as a sexually violent predator. On August 19, 1994, Hendricks appeared before the court with counsel and moved to dismiss the petition on the grounds that the Act violated various federal constitutional provisions. Although the court reserved ruling on the Act's constitutionality, it concluded that there was probable cause to support a finding that Hendricks was a sexually violent predator, and therefore ordered that he be evaluated at the Larned State Security Hospital.Hendricks subsequently requested a jury trial to determine whether he qualified as a sexually violent predator. During that trial, Hendricks' own testimony revealed a chilling history of repeated child sexual molestation and abuse, beginning in 1955 when he exposed his genitals to two young girls. At that time, he pleaded guilty to indecent exposure. Then, in 1957, he was convicted of lewdness involving a young girl and received a brief jail sentence. In 1960, he molested two young boys while he worked for a carnival. After serving two years in prison for that offense, he was paroled, only to be rearrested for molesting a 7-year-old girl. Attempts were made to treat him for his sexual deviance, and in 1965 he was considered "safe to be at large," and was discharged from a state psychiatric hospital. App. 139-144.Shortly thereafter, however, Hendricks sexually assaulted another young boy and girl-he performed oral sex on the 8-year-old girl and fondled the ll-year-old boy. He was again imprisoned in 1967, but refused to participate in a sex offender treatment program, and thus remained incarcerated until his parole in 1972. Diagnosed as a pedophile, Hendricks entered into, but then abandoned, a treatment program. He testified that despite having received professional help for his pedophilia, he continued to harbor sexual desires for children. Indeed, soon after his 1972 parole, Hendricks began to abuse his own stepdaughter and stepson. He forced the children to engage in sexual activity with him355over a period of approximately four years. Then, as noted above, Hendricks was convicted of "taking indecent liberties" with two adolescent boys after he attempted to fondle them. As a result of that conviction, he was once again imprisoned, and was serving that sentence when he reached his conditional release date in September 1994.Hendricks admitted that he had repeatedly abused children whenever he was not confined. He explained that when he "get[s] stressed out," he "can't control the urge" to molest children. Id., at 172. Although Hendricks recognized that his behavior harms children, and he hoped he would not sexually molest children again, he stated that the only sure way he could keep from sexually abusing children in the future was "to die." Id., at 190. Hendricks readily agreed with the state physician's diagnosis that he suffers from pedophilia and that he is not cured of the condition; indeed, he told the physician that "treatment is bull--." Id., at 153, 190.2The jury unanimously found beyond a reasonable doubt that Hendricks was a sexually violent predator. The trial court subsequently determined, as a matter of state law, that pedophilia qualifies as a "mental abnormality" as defined by2 In addition to Hendricks' own testimony, the jury heard from Hendricks' stepdaughter and stepson, who recounted the events surrounding their repeated sexual abuse at Hendricks' hands. App. 194-212. One of the girls to whom Hendricks exposed himself in 1955 testified as well. Id., at 191-194. The State also presented testimony from Lester Lee, a licensed clinical social worker who specialized in treating male sexual offenders, and Dr. Charles Befort, the chief psychologist at Larned State Hospital. Lee testified that Hendricks had a diagnosis of personality trait disturbance, passive-aggressive personality, and pedophilia. Id., at 219220. Dr. Befort testified that Hendricks suffered from pedophilia and is likely to commit sexual offenses against children in the future if not confined. Id., at 247-248. He further opined that pedophilia qualifies as a "mental abnormality" within the Act's definition of that term. Id., at 263264. Finally, Hendricks offered testimony from Dr. William S. Logan, a forensic psychiatrist, who stated that it was not possible to predict with any degree of accuracy the future dangerousness of a sex offender. Id., at 328-331.356the Act, and thus ordered Hendricks committed to the Secretary's custody.Hendricks appealed, claiming, among other things, that application of the Act to him violated the Federal Constitution's Due Process, Double Jeopardy, and Ex Post Facto Clauses. The Kansas Supreme Court accepted Hendricks' due process claim. 259 Kan., at 261, 912 P. 2d, at 138. The court declared that in order to commit a person involuntarily in a civil proceeding, a State is required by "substantive" due process to prove by clear and convincing evidence that the person is both (1) mentally ill, and (2) a danger to himself or to others. Id., at 259, 912 P. 2d, at 137. The court then determined that the Act's definition of "mental abnormality" did not satisfy what it perceived to be this Court's "mental illness" requirement in the civil commitment context. As a result, the court held that "the Act violates Hendricks' substantive due process rights." Id., at 261, 912 P. 2d, at 138.The majority did not address Hendricks' ex post facto or double jeopardy claims. The dissent, however, considered each of Hendricks' constitutional arguments and rejected them. Id., at 264-294, 912 P. 2d, 140-156 (Larson, J., dissenting).II AKansas argues that the Act's definition of "mental abnormality" satisfies "substantive" due process requirements. We agree. Although freedom from physical restraint "has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action," Foucha v. Louisiana, 504 U. S. 71, 80 (1992), that liberty interest is not absolute. The Court has recognized that an individual's constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context:"[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not357import an absolute right in each person to be, at all times and in all circumstances, wholly free from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members." Jacobson v. Massachusetts, 197 U. S. 11, 26 (1905).Accordingly, States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety. See, e. g., 1788 N. Y. Laws, ch. 31 (Feb. 9, 1788) (permitting confinement of the "furiously mad"); see also A. Deutsch, The Mentally III in America (1949) (tracing history of civil commitment in the 18th and 19th centuries); G. Grob, Mental Institutions in America: Social Policy to 1875 (1973) (discussing colonial and early American civil commitment statutes). We have consistently upheld such involuntary commitment statutes provided the confinement takes place pursuant to proper procedures and evidentiary standards. See Foucha, supra, at 80; Addington v. Texas, 441 U. S. 418, 426-427 (1979). It thus cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty. Cf. id., at 426.The challenged Act unambiguously requires a finding of dangerousness either to one's self or to others as a prerequisite to involuntary confinement. Commitment proceedings can be initiated only when a person "has been convicted of or charged with a sexually violent offense," and "suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence." Kan. Stat. Ann. § 59-29a02(a) (1994). The statute thus requires proof of more than a mere predisposition to violence; rather, it requires evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not inca-358pacitated. As we have recognized, "[p]revious instances of violent behavior are an important indicator of future violent tendencies." Heller v. Doe, 509 U. S. 312, 323 (1993); see also Schall v. Martin, 467 U. S. 253, 278 (1984) (explaining that "from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct").A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. We have sustained civil commitment statutes when they have coupled proof of dangerousness with the proof of some additional factor, such as a "mental illness" or "mental abnormality." See, e. g., Heller, supra, at 314-315 (Kentucky statute permitting commitment of "mentally retarded" or "mentally ill" and dangerous individual); Allen v. Illinois, 478 U. S. 364, 366 (1986) (Illinois statute permitting commitment of "mentally ill" and dangerous individual); Minnesota ex rel. Pearson v. Probate Court of Ramsey Cty., 309 U. S. 270, 271-272 (1940) (Minnesota statute permitting commitment of dangerous individual with "psychopathic personality"). These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Kansas Act is plainly of a kind with these other civil commitment statutes: It requires a finding of future dangerousness, and then links that finding to the existence of a "mental abnormality" or "personality disorder" that makes it difficult, if not impossible, for the person to control his dangerous behavior. Kan. Stat. Ann. § 59-29a02(b) (1994). The precommitment requirement of a "mental abnormality" or "personality disorder" is consistent with the requirements of these other statutes that we have upheld in that it narrows the class of persons eligible for confinement to those who are unable to control their dangerousness.Hendricks nonetheless argues that our earlier cases dictate a finding of "mental illness" as a prerequisite for civil commitment, citing Foucha and Addington. He then as-359serts that a "mental abnormality" is not equivalent to a "mental illness" because it is a term coined by the Kansas Legislature, rather than by the psychiatric community. Contrary to Hendricks' assertion, the term "mental illness" is devoid of any talismanic significance. Not only do "psychiatrists disagree widely and frequently on what constitutes mental illness," Ake v. Oklahoma, 470 U. S. 68,81 (1985), but the Court itself has used a variety of expressions to describe the mental condition of those properly subject to civil confinement. See, e. g., Addington, supra, at 425-426 (using the terms "emotionally disturbed" and "mentally ill"); Jackson v. Indiana, 406 U. S. 715, 732, 737 (1972) (using the terms "incompetency" and "insanity"); cf. Foucha, 504 U. S., at 88 (O'CONNOR, J., concurring in part and concurring in judgment) (acknowledging State's authority to commit a person when there is "some medical justification for doing so").Indeed, we have never required state legislatures to adopt any particular nomenclature in drafting civil commitment statutes. Rather, we have traditionally left to legislators the task of defining terms of a medical nature that have legal significance. Cf. Jones v. United States, 463 U. S. 354, 365, n. 13 (1983). As a consequence, the States have, over the years, developed numerous specialized terms to define mental health concepts. Often, those definitions do not fit precisely with the definitions employed by the medical community. The legal definitions of "insanity" and "competency," for example, vary substantially from their psychiatric counterparts. See, e. g., Gerard, The Usefulness of the Medical Model to the Legal System, 39 Rutgers L. Rev. 377, 391394 (1987) (discussing differing purposes of legal system and the medical profession in recognizing mental illness). Legal definitions, however, which must "take into account such issues as individual responsibility ... and competency," need not mirror those advanced by the medical profession. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders xxiii, xxvii (4th ed. 1994).360To the extent that the civil commitment statutes we have considered set forth criteria relating to an individual's inability to control his dangerousness, the Kansas Act sets forth comparable criteria and Hendricks' condition doubtless satisfies those criteria. The mental health professionals who evaluated Hendricks diagnosed him as suffering from pedophilia, a condition the psychiatric profession itself classifies as a serious mental disorder. See, e. g., id., at 524-525, 527528; 1 American Psychiatric Association, Treatments of Psychiatric Disorders 617-633 (1989); Abel & Rouleau, Male Sex Offenders, in Handbook of Outpatient Treatment of Adults 271 (M. Thase, B. Edelstein, & M. Hersen eds. 1990).3 Hendricks even conceded that, when he becomes "stressed out," he cannot "control the urge" to molest children. App. 172. This admitted lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes Hendricks from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings. Hendricks' diagnosis as a pedophile, which qualifies as a "mental abnormality" under the Act, thus plainly suffices for due process purposes.BWe granted Hendricks' cross-petition to determine whether the Act violates the Constitution's double jeopardy3We recognize, of course, that psychiatric professionals are not in complete harmony in casting pedophilia, or paraphilias in general, as "mental illnesses." Compare Brief for American Psychiatric Association as Amicus Curiae 26 with Brief for Menninger Foundation et al. as Amici Curiae 22-25. These disagreements, however, do not tie the State's hands in setting the bounds of its civil commitment laws. In fact, it is precisely where such disagreement exists that legislatures have been afforded the widest latitude in drafting such statutes. Cf. Jones v. United States, 463 U. S. 354, 365, n. 13 (1983). As we have explained regarding congressional enactments, when a legislature "undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation." Id., at 370 (internal quotation marks and citation omitted).361prohibition or its ban on ex post facto lawmaking. The thrust of Hendricks' argument is that the Act establishes criminal proceedings; hence confinement under it necessarily constitutes punishment. He contends that where, as here, newly enacted "punishment" is predicated upon past conduct for which he has already been convicted and forced to serve a prison sentence, the Constitution's Double Jeopardy and Ex Post Facto Clauses are violated. We are unpersuaded by Hendricks' argument that Kansas has established criminal proceedings.The categorization of a particular proceeding as civil or criminal "is first of all a question of statutory construction." Allen, 478 U. S., at 368. We must initially ascertain whether the legislature meant the statute to establish "civil" proceedings. If so, we ordinarily defer to the legislature's stated intent. Here, Kansas' objective to create a civil proceeding is evidenced by its placement of the Act within the Kansas probate code, Kan. Stat. Ann., Art. 29 (1994) ("Care and Treatment for Mentally III Persons"), instead of the criminal code, as well as its description of the Act as creating a "civil commitment procedure," § 59-29a01 (emphasis added). Nothing on the face of the statute suggests that the legislature sought to create anything other than a civil commitment scheme designed to protect the public from harm.Although we recognize that a "civil label is not always dispositive," Allen, supra, at 369, we will reject the legislature's manifest intent only where a party challenging the statute provides "the clearest proof" that "the statutory scheme [is] so punitive either in purpose or effect as to negate [the State's] intention" to deem it "civil," United States v. Ward, 448 U. S. 242, 248-249 (1980). In those limited circumstances, we will consider the statute to have established criminal proceedings for constitutional purposes. Hendricks, however, has failed to satisfy this heavy burden.As a threshold matter, commitment under the Act does not implicate either of the two primary objectives of criminal362punishment: retribution or deterrence. The Act's purpose is not retributive because it does not affix culpability for prior criminal conduct. Instead, such conduct is used solely for evidentiary purposes, either to demonstrate that a "mental abnormality" exists or to support a finding of future dangerousness. We have previously concluded that an Illinois statute was nonpunitive even though it was triggered by the commission of a sexual assault, explaining that evidence of the prior criminal conduct was "received not to punish past misdeeds, but primarily to show the accused's mental condition and to predict future behavior." Allen, supra, at 371. In addition, the Kansas Act does not make a criminal conviction a prerequisite for commitment-persons absolved of criminal responsibility may nonetheless be subject to confinement under the Act. See Kan. Stat. Ann. § 59-29a03(a) (1994). An absence of the necessary criminal responsibility suggests that the State is not seeking retribution for a past misdeed. Thus, the fact that the Act may be "tied to criminal activity" is "insufficient to render the statut[e] punitive." United States v. Ursery, 518 U. S. 267 (1996).Moreover, unlike a criminal statute, no finding of scienter is required to commit an individual who is found to be a sexually violent predator; instead, the commitment determination is made based on a "mental abnormality" or "personality disorder" rather than on one's criminal intent. The existence of a scienter requirement is customarily an important element in distinguishing criminal from civil statutes. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168 (1963). The absence of such a requirement here is evidence that confinement under the statute is not intended to be retributive.Nor can it be said that the legislature intended the Act to function as a deterrent. Those persons committed under the Act are, by definition, suffering from a "mental abnormality" or a "personality disorder" that prevents them from exercising adequate control over their behavior. Such persons are therefore unlikely to be deterred by the threat of363confinement. And the conditions surrounding that confinement do not suggest a punitive purpose on the State's part. The State has represented that an individual confined under the Act is not subject to the more restrictive conditions placed on state prisoners, but instead experiences essentially the same conditions as any involuntarily committed patient in the state mental institution. App. 50-56, 59-60. Because none of the parties argues that people institutionalized under the Kansas general civil commitment statute are subject to punitive conditions, even though they may be involuntarily confined, it is difficult to conclude that persons confined under this Act are being "punished."Although the civil commitment scheme at issue here does involve an affirmative restraint, "the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment." United States v. Salerno, 481 U. S. 739, 746 (1987). The State may take measures to restrict the freedom of the dangerously mentally ill. This is a legitimate nonpunitive governmental objective and has been historically so regarded. Cf. id., at 747. The Court has, in fact, cited the confinement of "mentally unstable individuals who present a danger to the public" as one classic example of nonpunitive detention. Id., at 748749. If detention for the purpose of protecting the community from harm necessarily constituted punishment, then all involuntary civil commitments would have to be considered punishment. But we have never so held.Hendricks focuses on his confinement's potentially indefinite duration as evidence of the State's punitive intent. That focus, however, is misplaced. Far from any punitive objective, the confinement's duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. Cf. Jones, 463 U. S., at 368 (noting with approval that "because it is impossible to predict how long it will take for any given individual to recover [from insan-364ity]-or indeed whether he will ever recover-Congress has chosen ... to leave the length of commitment indeterminate, subject to periodic review of the patient's suitability for release"). If, at any time, the confined person is adjudged "safe to be at large," he is statutorily entitled to immediate release. Kan. Stat. Ann. § 59-29a07 (1994).Furthermore, commitment under the Act is only potentially indefinite. The maximum amount of time an individual can be incapacitated pursuant to a single judicial proceeding is one year. § 59-29a08. If Kansas seeks to continue the detention beyond that year, a court must once again determine beyond a reasonable doubt that the detainee satisfies the same standards as required for the initial confinement. Ibid. This requirement again demonstrates that Kansas does not intend an individual committed pursuant to the Act to remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.Hendricks next contends that the State's use of procedural safeguards traditionally found in criminal trials makes the proceedings here criminal rather than civil. In Allen, we confronted a similar argument. There, the petitioner "place[d] great reliance on the fact that proceedings under the Act are accompanied by procedural safeguards usually found in criminal trials" to argue that the proceedings were civil in name only. 478 U. S., at 371. We rejected that argument, however, explaining that the State's decision "to provide some of the safeguards applicable in criminal trials cannot itself turn these proceedings into criminal prosecutions." Id., at 372. The numerous procedural and evidentiary protections afforded here demonstrate that the Kansas Legislature has taken great care to confine only a narrow class of particularly dangerous individuals, and then only after meeting the strictest procedural standards. That Kansas chose to afford such procedural protections does not365transform a civil commitment proceeding into a criminal prosecution.Finally, Hendricks argues that the Act is necessarily punitive because it fails to offer any legitimate "treatment." Without such treatment, Hendricks asserts, confinement under the Act amounts to little more than disguised punishment. Hendricks' argument assumes that treatment for his condition is available, but that the State has failed (or refused) to provide it. The Kansas Supreme Court, however, apparently rejected this assumption, explaining:"It is clear that the overriding concern of the legislature is to continue the segregation of sexually violent offenders from the public. Treatment with the goal of reintegrating them into society is incidental, at best. The record reflects that treatment for sexually violent predators is all but nonexistent. The legislature concedes that sexually violent predators are not amenable to treatment under [the existing Kansas involuntary commitment statute]. If there is nothing to treat under [that statute], then there is no mental illness. In that light, the provisions of the Act for treatment appear somewhat disingenuous." 259 Kan., at 258, 912 P. 2d, at 136.It is possible to read this passage as a determination that Hendricks' condition was untreatable under the existing Kansas civil commitment statute, and thus the Act's sole purpose was incapacitation. Absent a treatable mental illness, the Kansas court concluded, Hendricks could not be detained against his will.Accepting the Kansas court's apparent determination that treatment is not possible for this category of individuals does not obligate us to adopt its legal conclusions. We have already observed that, under the appropriate circumstances and when accompanied by proper procedures, incapacitation366may be a legitimate end of the civil law. See Allen, supra, at 373; Salerno, 481 U. S., at 748-749. Accordingly, the Kansas court's determination that the Act's "overriding concern" was the continued "segregation of sexually violent offenders" is consistent with our conclusion that the Act establishes civil proceedings, 259 Kan., at 258, 912 P. 2d, at 136, especially when that concern is coupled with the State's ancillary goal of providing treatment to those offenders, if such is possible. While we have upheld state civil commitment statutes that aim both to incapacitate and to treat, see Allen, supra, we have never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others. A State could hardly be seen as furthering a "punitive" purpose by involuntarily confining persons afflicted with an untreatable, highly contagious disease. Accord, Compagnie Francaise de Navigation a Vapeur v. Louisiana Bd. of Health, 186 U. S. 380 (1902) (permitting involuntary quarantine of persons suffering from communicable diseases). Similarly, it would be of little value to require treatment as a precondition for civil confinement of the dangerously insane when no acceptable treatment existed. To conclude otherwise would obligate a State to release certain confined individuals who were both mentally ill and dangerous simply because they could not be successfully treated for their afflictions. Cf. Greenwood v. United States, 350 U. S. 366, 375 (1956) ("The fact that at present there may be little likelihood of recovery does not defeat federal power to make this initial commitment of the petitioner"); O'Connor v. Donaldson, 422 U. S. 563, 584 (1975) (Burger, C. J., concurring) ("[I]t remains a stubborn fact that there are many forms of mental illness which are not understood, some which are untreatable in the sense that no effective therapy has yet been discovered for them, and that rates of 'cure' are generally low").Alternatively, the Kansas Supreme Court's opinion can be read to conclude that Hendricks' condition is treatable, but367that treatment was not the State's "overriding concern," and that no treatment was being provided (at least at the time Hendricks was committed). 259 Kan., at 258, 912 P. 2d, at 136. See also ibid. ("It is clear that the primary objective of the Act is to continue incarceration and not to provide treatment"). Even if we accept this determination that the provision of treatment was not the Kansas Legislature's "overriding" or "primary" purpose in passing the Act, this does not rule out the possibility that an ancillary purpose of the Act was to provide treatment, and it does not require us to conclude that the Act is punitive. Indeed, critical language in the Act itself demonstrates that the Secretary, under whose custody sexually violent predators are committed, has an obligation to provide treatment to individuals like Hendricks. § 59-29a07(a) ("If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the secretary of social and rehabilitation services for control, care and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large" (emphasis added)). Other of the Act's sections echo this obligation to provide treatment for committed persons. See, e. g., § 59-29a01 (establishing civil commitment procedure "for the long-term care and treatment of the sexually violent predator"); § 59-29a09 (requiring the confinement to "conform to constitutional requirements for care and treatment"). Thus, as in Allen, "the State has a statutory obligation to provide 'care and treatment for [persons adjudged sexually dangerous] designed to effect recovery,'" 478 U. S., at 369 (quoting Ill. Rev. Stat., ch. 38, , 105-8 (1985)), and we may therefore conclude that "the State has ... provided for the treatment of those it commits," 478 U. S., at 370.Although the treatment program initially offered Hendricks may have seemed somewhat meager, it must be remembered that he was the first person committed under the368Act. That the State did not have all of its treatment procedures in place is thus not surprising. What is significant, however, is that Hendricks was placed under the supervision of the Kansas Department of Health and Social and Rehabilitative Services, housed in a unit segregated from the general prison population and operated not by employees of the Department of Corrections, but by other trained individuals.4 And, before this Court, Kansas declared "[a]bsolutely" that persons committed under the Act are now receiving in the neighborhood of "31-'l2 hours of treatment per week." Tr. of Oral Arg. 14-15, 16.5Where the State has "disavowed any punitive intent"; limited confinement to a small segment of particularly dangerous individuals; provided strict procedural safeguards; directed that confined persons be segregated from the general prison population and afforded the same status as others who have been civilly committed; recommended treatment if such is possible; and permitted immediate release upon a showing4 We have explained that the States enjoy wide latitude in developing treatment regimens. Youngberg v. Romeo, 457 U. S. 307, 317 (1982) (observing that the State "has considerable discretion in determining the nature and scope of its responsibilities"). In Allen v. Illinois, 478 U. S. 364 (1986), for example, we concluded that "the State serves its purpose of treating rather than punishing sexually dangerous persons by committing them to an institution expressly designed to provide psychiatric care and treatment." Id., at 373 (emphasis deleted). By this measure, Kansas has doubtless satisfied its obligation to provide available treatment.5 Indeed, we have been informed that in an August 28, 1995, hearing on Hendricks' petition for state habeas corpus relief, the trial court, over admittedly conflicting testimony, ruled: "[T]he allegation that no treatment is being provided to any of the petitioners or other persons committed to the program designated as a sexual predator treatment program is not true. I find that they are receiving treatment." App. 453-454. Thus, to the extent that treatment is available for Hendricks' condition, the State now appears to be providing it. By furnishing such treatment, the Kansas Legislature has indicated that treatment, if possible, is at least an ancillary goal of the Act, which easily satisfies any test for determining that the Act is not punitive.369that the individual is no longer dangerous or mentally impaired, we cannot say that it acted with punitive intent. We therefore hold that the Act does not establish criminal proceedings and that involuntary confinement pursuant to the Act is not punitive. Our conclusion that the Act is nonpunitive thus removes an essential prerequisite for both Hendricks' double jeopardy and ex post facto claims.1The Double Jeopardy Clause provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." Although generally understood to preclude a second prosecution for the same offense, the Court has also interpreted this prohibition to prevent the State from "punishing twice, or attempting a second time to punish criminally, for the same offense." Witte v. United States, 515 U. S. 389, 396 (1995) (emphasis and internal quotation marks omitted). Hendricks argues that, as applied to him, the Act violates double jeopardy principles because his confinement under the Act, imposed after a conviction and a term of incarceration, amounted to both a second prosecution and a second punishment for the same offense. We disagree.Because we have determined that the Kansas Act is civil in nature, initiation of its commitment proceedings does not constitute a second prosecution. Cf. Jones v. United States, 463 U. S. 354 (1983) (permitting involuntary civil commitment after verdict of not guilty by reason of insanity). Moreover, as commitment under the Act is not tantamount to "punishment," Hendricks' involuntary detention does not violate the Double Jeopardy Clause, even though that confinement may follow a prison term. Indeed, in Baxstrom v. Herold, 383 U. S. 107 (1966), we expressly recognized that civil commitment could follow the expiration of a prison term without offending double jeopardy principles. We reasoned that "there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal370term from all other civil commitments." Id., at 111-112. If an individual otherwise meets the requirements for involuntary civil commitment, the State is under no obligation to release that individual simply because the detention would follow a period of incarceration.Hendricks also argues that even if the Act survives the "multiple punishments" test, it nevertheless fails the "same elements" test of Blockburger v. United States, 284 U. S. 299 (1932). Under Blockburger, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Id., at 304. The Blockburger test, however, simply does not apply outside of the successive prosecution context. A proceeding under the Act does not define an "offense," the elements of which can be compared to the elements of an offense for which the person may previously have been convicted. Nor does the Act make the commission of a specified "offense" the basis for invoking the commitment proceedings. Instead, it uses a prior conviction (or previously charged conduct) for evidentiary purposes to determine whether a person suffers from a "mental abnormality" or "personality disorder" and also poses a threat to the public. Accordingly, we are unpersuaded by Hendricks' novel application of the Blockburger test and conclude that the Act does not violate the Double Jeopardy Clause.2Hendricks' ex post facto claim is similarly flawed. The Ex Post Facto Clause, which" 'forbids the application of any new punitive measure to a crime already consummated,'" has been interpreted to pertain exclusively to penal statutes. California Dept. of Corrections v. Morales, 514 U. S. 499, 505 (1995) (quoting Lindsey v. Washington, 301 U. S. 397, 401 (1937)). As we have previously determined, the Act does not impose punishment; thus, its application does not raise371ex post facto concerns. Moreover, the Act clearly does not have retroactive effect. Rather, the Act permits involuntary confinement based upon a determination that the person currently both suffers from a "mental abnormality" or "personality disorder" and is likely to pose a future danger to the public. To the extent that past behavior is taken into account, it is used, as noted above, solely for evidentiary purposes. Because the Act does not criminalize conduct legal before its enactment, nor deprive Hendricks of any defense that was available to him at the time of his crimes, the Act does not violate the Ex Post Facto Clause.IIIWe hold that the Kansas Sexually Violent Predator Act comports with due process requirements and neither runs afoul of double jeopardy principles nor constitutes an exercise in impermissible ex post facto lawmaking. Accordingly, the judgment of the Kansas Supreme Court is reversed.It is so ordered

OCTOBER TERM, 1996SyllabusKANSAS v. HENDRICKSCERTIORARI TO THE SUPREME COURT OF KANSAS No. 95-1649. Argued December 10, 1996-Decided June 23,1997*Kansas' Sexually Violent Predator Act establishes procedures for the civil commitment of persons who, due to a "mental abnormality" or a "personality disorder," are likely to engage in "predatory acts of sexual violence." Kansas filed a petition under the Act in state court to commit respondent (and cross-petitioner) Hendricks, who had a long history of sexually molesting children and was scheduled for release from prison. The court reserved ruling on Hendricks' challenge to the Act's constitutionality, but granted his request for a jury trial. After Hendricks testified that he agreed with the state physician's diagnosis that he suffers from pedophilia and is not cured and that he continues to harbor sexual desires for children that he cannot control when he gets "stressed out," the jury determined that he was a sexually violent predator. Finding that pedophilia qualifies as a mental abnormality under the Act, the court ordered him committed. On appeal, the State Supreme Court invalidated the Act on the ground that the pre commitment condition of a "mental abnormality" did not satisfy what it perceived to be the "substantive" due process requirement that involuntary civil commitment must be predicated on a "mental illness" finding. It did not address Hendricks' ex post facto and double jeopardy claims.Held:1. The Act's definition of "mental abnormality" satisfies "substantive" due process requirements. An individual's constitutionally protected liberty interest in avoiding physical restraint may be overridden even in the civil context. Jacobson v. Massachusetts, 197 U. S. 11, 26. This Court has consistently upheld involuntary commitment statutes that detain people who are unable to control their behavior and thereby pose a danger to the public health and safety, provided the confinement takes place pursuant to proper procedures and evidentiary standards. Foucha v. Louisiana, 504 U. S. 71,80. The Act unambiguously requires a pre commitment finding of dangerousness either to one's self or to others, and links that finding to a determination that the person suffers from a "mental abnormality" or "personality disorder." Generally, this Court has sustained a commitment statute if it couples proof of dangerousness*Together with No. 95-9075, Hendricks v. Kansas, also on certiorari to the same court.347with proof of some additional factor, such as a "mental illness" or "mental abnormality," see, e. g., Heller v. Doe, 509 U. S. 312, 314-315, for these additional requirements serve to limit confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Act sets forth comparable criteria with its pre commitment requirement of "mental abnormality" or "personality disorder." Contrary to Hendricks' argument, this Court has never required States to adopt any particular nomenclature in drafting civil commitment statutes and leaves to the States the task of defining terms of a medical nature that have legal significance. Cf. Jones v. United States, 463 U. S. 354, 365, n. 13. The legislature is therefore not required to use the specific term "mental illness" and is free to adopt any similar term. Pp. 356-360.2. The Act does not violate the Constitution's double jeopardy prohibition or its ban on ex post facto lawmaking. pp. 360-371.(a) The Act does not establish criminal proceedings, and involuntary confinement under it is not punishment. The categorization of a particular proceeding as civil or criminal is a question of statutory construction. Allen v. Illinois, 478 U. S. 364, 368. Nothing on the face of the Act suggests that the Kansas Legislature sought to create anything other than a civil commitment scheme. That manifest intent will be rejected only if Hendricks provides the clearest proof that the scheme is so punitive in purpose or effect as to negate Kansas' intention to deem it civil. United States v. Ward, 448 U. S. 242, 248-249. He has failed to satisfy this heavy burden. Commitment under the Act does not implicate either of the two primary objectives of criminal punishment: retribution or deterrence. Its purpose is not retributive: It does not affix culpability for prior criminal conduct, but uses such conduct solely for evidentiary purposes; it does not make criminal conviction a prerequisite for commitment; and it lacks a scienter requirement, an important element in distinguishing criminal and civil statutes. Nor can the Act be said to act as a deterrent, since persons with a mental abnormality or personality disorder are unlikely to be deterred by the threat of confinement. The conditions surrounding confinement-essentially the same as conditions for any civilly committed patient-do not suggest a punitive purpose. Although the commitment scheme here involves an affirmative restraint, such restraint of the dangerously mentally ill has been historically regarded as a legitimate nonpunitive objective. Cf. United States v. Salerno, 481 U. S. 739, 747. The confinement's potentially indefinite duration is linked, not to any punitive objective, but to the purpose of holding a person until his mental abnormality no longer causes him to be a threat to others. He is thus permitted immediate release upon a showing that he is no longer dangerous, and the longest348Syllabushe can be detained pursuant to a single judicial proceeding is one year. The State's use of procedural safeguards applicable in criminal trials does not itself turn the proceedings into criminal prosecutions. Allen, supra, at 372. Finally, the Act is not necessarily punitive if it fails to offer treatment where treatment for a condition is not possible, or if treatment, though possible, is merely an ancillary, rather than an overriding, state concern. The conclusion that the Act is nonpunitive removes an essential prerequisite for both Hendricks' double jeopardy and ex post facto claims. Pp. 360-369.(b) Hendricks' confinement does not amount to a second prosecution and punishment for the offense for which he was convicted. Because the Act is civil in nature, its commitment proceedings do not constitute a second prosecution. Cf. Jones, supra. As this commitment is not tantamount to punishment, the detention does not violate the Double Jeopardy Clause, even though it follows a prison term. Baxstrom v. Herold, 383 U. S. 107. Hendricks' argument that, even if the Act survives the "multiple punishments" test, it fails the "same elements" test of Blockburger v. United States, 284 U. S. 299, is rejected, since that test does not apply outside of the successive prosecution context. Pp. 369-370.(c) Hendricks' ex post facto claim is similarly flawed. The Ex Post Facto Clause pertains exclusively to penal statutes. California Dept. of Corrections v. Morales, 514 U. S. 499, 505. Since the Act is not punishment, its application does not raise ex post facto concerns. Moreover, the Act clearly does not have retroactive effect. It does not criminalize conduct legal before its enactment or deprive Hendricks of any defense that was available to him at the time of his crimes. Pp.370-371.259 Kan. 246, 912 P. 2d 129, reversed.THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 371. BREYER, J., filed a dissenting opinion, in which STEVENS and SOUTER, JJ., joined, and in which GINSBURG, J., joined as to Parts II and III, post, p. 373.

1972_71-1021

MR. JUSTICE DOUGLAS delivered the opinion of the Court.The Eleventh Amendment, adopted in 1795, and formally ratified in 1798, provides:"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."The Eleventh Amendment is the basis of a motion by Missouri to dismiss a complaint filed by employees of state agencies of that State, the Department of Public Health and Welfare, and two of its divisions, the Division of Mental Disease and the Division of Health, and various officials of the Department and of the two Divisions.Although the Eleventh Amendment is not literally applicable, since petitioners who brought suit are citizens of Missouri, it is established that an unconsenting State is immune from suits brought in federal courts by her own citizens, as well as by citizens of another State. See Hans v. Louisiana, 134 U. S. 1; Duhne v. New Jersey, 251 U. S. 311; Parden v. Terminal R. Co., [Footnote 1] 377 U. S. 184; 1 C. Jacobs, The Eleventh Amendment and Sovereign Immunity 109-110 (1972). Page 411 U. S. 281The employees seek overtime compensation due them under 16(b) of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U.S.C. § 216(b), and an equal amount as liquidated damages and attorneys' fees. The District Court dismissed the complaint. The Court of Appeals, sitting in a panel of three, reversed, one judge dissenting. No. 20,204, Apr. 2, 1971 (not reported). On the filing of a petition for rehearing, the Court of Appeals sat en banc and, by a closely divided vote, set aside the panel decision and affirmed the judgment of the District Court. 452 F.2d 820. The case is here on a petition for a writ of certiorari, which we granted. 405 U.S. 1016.The panel of three thought the present case was governed by Parden v. Terminal R. Co., supra. The court, sitting en banc, thought Parden was distinguishable. That is the central issue argued in the present case. Page 411 U. S. 282Parden involved a state-owned railroad operating in interstate commerce, and the claims were those of employees under the Federal Employers' Liability Act (FELA), 35 Stat. 65, as amended, 45 U.S.C. § 51 et seq. The term "carrier," for purposes of that Act, was defined by Congress as including "[e]very common carrier by railroad while engaging in commerce between any of the several States." Id., § 51. The Court concluded that Congress designed to bring state-owned, as well as privately owned, carriers within that definition and that it was empowered to do so by the Commerce Clause. The State's operation of its railroad in interstate commerce, it held, was in subordination to the power of Congress to regulate interstate commerce and application of the FELA to a State in those circumstances was not precluded by sovereign immunity. 377 U.S. at 377 U. S. 191-193. The Parden case, in final analysis, turned on the question of waiver, a majority of the Court holding that it was a federal question, since any consent of the State to suit did not arise from an act "wholly within its own sphere of authority," but in the area of commerce, which is subject to pervasive federal regulation. Id. at 377 U. S. 196.It is said that the Fair Labor Standards Act (FLSA) stands on the same foundation, reflecting the power of Congress to regulate conditions of work of those producing goods for commerce, United States v. Darby, 312 U. S. 100, and those whose activities are necessary to the production of goods for commerce. Kirschbaum Co. v. Walling, 316 U. S. 517, 316 U. S. 524. By § 3(d) of the Act, "employer" was first defined to exclude the United States or any State or political subdivision of a State. But, in 1966, there was added to § 3(d) an "except" clause which reads"except with respect to employees of a State, or a political subdivision thereof, employed (1) in a hospital, institution, or school referred to in the last sentence of subsection Page 411 U. S. 283 (r) of this section. . . ."Section 3(r) was amended at the same time to include:"the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, an elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit). . . ."Identical language was also added in 1966 to subsection 3(s), which defines "[e]nterprise engaged in commerce or in the production of goods for commerce."By reason of the literal language of the present Act, Missouri and the departments joined as defendants are constitutionally covered by the Act, as the Court held in Maryland v. Wirtz, 392 U. S. 183. The question is whether Congress has brought the States to heel, in the sense of lifting their immunity from suit in a federal court -- a question we reserved in Maryland v. Wirtz, supra, at 392 U. S. 199-201.There is no doubt that Congress desired to bring under the Act employees of hospitals and related institutions. S.Rep. No. 1487, 89th Cong., 2d Sess., 8, 22-23; H.R.Rep. No. 1366, 89th Cong., 2d Sess., 3, 11-12, 15, 16-17, 18. But § 16(b) remained the same. Prior to 1966 and afterward, it read in relevant part:"Any employer who violates the provisions of section 6 or section 7 of this Act shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction. . . . "Page 411 U. S. 284The history and tradition of the Eleventh Amendment indicate that, by reason of that barrier, a federal court is not competent to render judgment against a nonconsenting State. Parden involved the railroad business which Alabama operated "for profit." 377 U.S. at 377 U. S. 185. Parden was in the area where private persons and corporations normally ran the enterprise.State mental hospitals, state cancer hospitals, and training schools for delinquent girls which are not operated for profit are not proprietary."Before 1810, only a few eastern-seaboard states had incorporated private institutions to care for the mentally ill, and Virginia alone had established a public asylum."D. Rothman, The Discovery of the Asylum 130 (1971). But, as Rothman relates, after that, the public sector took over. [Footnote 2]Where employees in state institutions not conducted for profit have such a relation to interstate commerce that national policy, of which Congress is the keeper, indicates that their status should be raised, Congress can act. And when Congress does act, it may place new or even enormous fiscal burdens on the States. Congress, acting responsibly, would not be presumed to take such Page 411 U. S. 285 action silently. The dramatic circumstances of the Parden case, which involved a rather isolated state activity, can be put to one side. We deal here with problems that may well implicate elevator operators, janitors, charwomen, security guards, secretaries, and the like in every office building in a State's governmental hierarchy. Those who follow the teachings of Kirschbaum v. Walling, supra, and see its manifold applications will appreciate how pervasive such a new federal scheme of regulation would be.But we have found not a word in the history of the 1966 amendments to indicate a purpose of Congress to make it possible for a citizen of that State or another State to sue the State in the federal courts. The Parden opinion did state that it would be "surprising" to learn that Congress made state railroads liable to employees under the FELA, yet provided "no means by which that liability may be enforced." 377 U.S. at 377 U. S. 197. It would also be surprising in the present case to infer that Congress deprived Missouri of her constitutional immunity without changing the old § 16(b) under which she could not be sued or indicating in some way by clear language that the constitutional immunity was swept away. It is not easy to infer that Congress, in legislating pursuant to the Commerce Clause, which has grown to vast proportions in its applications, desired silently to deprive the States of an immunity they have long enjoyed under another part of the Constitution. Thus, we cannot conclude that Congress conditioned the operation of these facilities on the forfeiture of immunity from suit in a federal forum.By holding that Congress did not lift the sovereign immunity of the States under the FLSA, we do not make the extension of coverage to state employees meaningless. Cf. Parden v. Terminal R. Co., supra, at 377 U. S. 190. Section 16(c) gives the Secretary of Labor authority to Page 411 U. S. 286 bring suit for unpaid minimum wages or unpaid overtime compensation under the FLSA. Once the Secretary acts under § 16(c), the right of any employee or employees to sue under § 16(b) terminates. Section 17 gives the Secretary power to seek to enjoin violations of the Act and to obtain restitution in behalf of employees. Sections 16 and 17 suggest that, since private enforcement of the Act was not a paramount objective, disallowance of suits by state employees and remitting them to relief through the Secretary of Labor may explain why Congress was silent as to waiver of sovereign immunity of the States. For suits by the United States against a State are not barred by the Constitution. See United States v. Mississippi, 380 U. S. 128, 380 U. S. 140-141. In this connection, it is not amiss to note that § 16(b) allows recovery by employees not only of the amount of unpaid wages, but of an equal amount as liquidated damages and attorneys' fees. It is one thing, as in Parden, to make a state employee whole; it is quite another to let him recover double against a State. Recalcitrant private employers may be whipped into line in that manner. But we are reluctant to believe that Congress, in pursuit of a harmonious federalism, desired to treat the States so harshly. The policy of the Act, so far as the States are concerned, is wholly served by allowing the delicate federal state relationship to be managed through the Secretary of Labor.The Solicitor General, as amicus curiae, argues that Hans v. Louisiana, 134 U. S. 1, should not be construed to apply to the present case, his theory being that, in Hans, the suit was one to collect on coupons attaching to state bonds, while, in the instant case, the suit is a cause of action created by Congress and contained in § 16(b) of the Act. It is true that, as the Court said in Parden, "the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce." 377 U.S. at 377 U. S. 191. But we decline to extend Page 411 U. S. 287 Parden to cover every exercise by Congress of its commerce power, where the purpose of Congress to give force to the Supremacy Clause by lifting the sovereignty of the States and putting the States on the same footing as other employers is not clear.We are told that the FLSA, in 1971, covered 45.4 million employees, and nearly 2 million establishments, and that 2.7 million of these employees and 118,000 of these establishments were in state or local government employment. We are also told that less than 4% of these establishments can be investigated by the Secretary of Labor each year. The argument is that, if we deny this direct federal court remedy, we, in effect, are recognizing that there is a right without any remedy. Section 16(b), however, authorizes employee suits in "any court of competent jurisdiction." Arguably, that permits suit in the Missouri courts, but that is a question we need not reach. We are concerned only with the problem of this Act, and the constitutional constraints on "the judicial power" of the United States.Affirmed

U.S. Supreme CourtEmployees v. Missouri Pub. Health Dept., 411 U.S. 279 (1973)Employees of the Department of Public Health & Welfare ofMissouri v. Missouri Public Health & Welfare of MissouriNo. 71-1021Argued January 15, 1973Decided April 18, 1973411 U.S. 279SyllabusPetitioners, employees of state health facilities, brought suit for overtime pay due them under § 16(b) of the Fair Labor Standards Act (FLSA) and damages, which the District Court dismissed as being an unconsented action against the State of Missouri, and thus barred by the Eleventh Amendment. The Court of Appeals affirmed.Held: Although amendments to the FLSA in 1966 extended statutory coverage to state employees, the legislative history discloses no congressional purpose to deprive a State of its constitutional immunity to suit in a federal forum by employees of its nonprofit institutions, particularly since Congress made no change in § 16(b), which makes no reference to suits by employees against the State. Parden v. Terminal R. Co., 377 U. S. 184, distinguished. The amendments' extension of coverage to state employees is not without meaning as the Secretary of Labor is thereby enabled to bring remedial action on their behalf under § 17 of the FLSA. Pp. 411 U. S. 281-287.452 F.2d 820, affirmed.DOUGLAS, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in the result, in which STEWART, J., joined, post, p. 411 U. S. 287. BRENNAN, J., filed a dissenting opinion, post, p. 411 U. S. 298. Page 411 U. S. 280

1959_376

MR. JUSTICE BRENNAN delivered the opinion of the Court.These two cases concern the provision of the Internal Revenue Code which excludes from the gross income of an income taxpayer "the value of property acquired by Page 363 U. S. 280 gift." [Footnote 1] They pose the frequently recurrent question whether a specific transfer to a taxpayer in fact amounted to a "gift" to him within the meaning of the statute. The importance to decision of the facts of the cases requires that we state them in some detail.No. 376, Commissioner v. Duberstein. The taxpayer, Duberstein, [Footnote 2] was president of the Duberstein Iron & Metal Company, a corporation with headquarters in Dayton, Ohio. For some years, the taxpayer's company had done business with Mohawk Metal Corporation, whose headquarters were in New York City. The president of Mohawk was one Berman. The taxpayer and Berman had generally used the telephone to transact their companies' business with each other, which consisted of buying and selling metals. The taxpayer testified, without elaboration, that he knew Berman "personally," and had known him for about seven years. From time to time in their telephone conversations, Berman would ask Duberstein whether the latter knew of potential customers for some of Mohawk's products in which Duberstein's company itself was not interested. Duberstein provided the names of potential customers for these items.One day in 1951, Berman telephoned Duberstein and said that the information Duberstein had given him had proved so helpful that he wanted to give the latter a present. Duberstein stated that Berman owed him nothing. Berman said that he had a Cadillac as a gift for Duberstein, and that the latter should send to New York for it; Berman insisted that Duberstein accept the car, and the latter finally did so, protesting, however, that Page 363 U. S. 281 he had not intended to be compensated for the information. At the time, Duberstein already had a Cadillac and an Oldsmobile, and felt that he did not need another car. Duberstein testified that he did not think Berman would have sent him the Cadillac if he had not furnished him with information about the customers. It appeared that Mohawk later deducted the value of the Cadillac as a business expense on its corporate income tax return.Duberstein did not include the value of the Cadillac in gross income for 1951, deeming it a gift. The Commissioner asserted a deficiency for the car's value against him, and, in proceedings to review the deficiency, the Tax Court affirmed the Commissioner's determination. It said that"The record is significantly barren of evidence revealing any intention on the part of the payor to make a gift. . . . The only justifiable inference is that the automobile was intended by the payor to be remuneration for services rendered to it by Duberstein."The Court of Appeals for the Sixth Circuit reversed. 265 F.2d 28, 30.No. 546, Stanton v. United States. The taxpayer, Stanton, had been for approximately 10 years in the employ of Trinity Church in New York City. He was comptroller of the Church corporation, and president of a corporation, Trinity Operating Company, the church set up as a fully owned subsidiary to manage its real estate holdings, which were more extensive than simply the church property. His salary by the end of his employment there in 1942 amounted to $22,500 a year. Effective November 30, 1942, he resigned from both positions to go into business for himself. The Operating Company's directors, who seem to have included the rector and vestrymen of the church, passed the following resolution upon his resignation:"Be it resolved that, in appreciation of the services rendered by Mr. Stanton . . . , a gratuity is hereby awarded to him of Twenty Thousand Dollars, payable to him in equal instalments of Two Thousand Dollars Page 363 U. S. 282 at the end of each and every month commencing with the month of December, 1942; provided that, with the discontinuance of his services, the Corporation of Trinity Church is released from all rights and claims to pension and retirement benefits not already accrued up to November 30, 1942."The Operating Company's action was later explained by one of its directors as based on the fact that"Mr. Stanton was liked by all of the Vestry personally. He had a pleasing personality. He had come in when Trinity's affairs were in a difficult situation. He did a splendid piece of work, we felt. Besides that . . . , he was liked by all of the members of the Vestry personally."And by another:"[W]e were all unanimous in wishing to make Mr. Stanton a gift. Mr. Stanton had loyally and faithfully served Trinity in a very difficult time. We thought of him in the highest regard. We understood that he was going in business for himself. We felt that he was entitled to that evidence of good will."On the other hand, there was a suggestion of some ill feeling between Stanton and the directors, arising out of the recent termination of the services of one Watkins, the Operating Company's treasurer, whose departure was evidently attended by some acrimony. At a special board meeting on October 28, 1942, Stanton had intervened on Watkins' side and asked reconsideration of the matter. The minutes reflect that"resentment was expressed as to the 'presumptuous' suggestion that the action of the Board, taken after long deliberation, should be changed."The Board adhered to its determination that Watkins be separated from employment, giving him an opportunity to resign rather than be discharged. At another special meeting two days later, it was revealed that Watkins had not resigned; the previous resolution terminating his services was then viewed as effective, and the Board voted the payment of six months' salary Page 363 U. S. 283 to Watkins in a resolution similar to that quoted in regard to Stanton, but which did not use the term "gratuity." At the meeting, Stanton announced that, in order to avoid any such embarrassment or question at any time as to his willingness to resign if the Board desired, he was tendering his resignation. It was tabled, though not without dissent. The next week, on November 5, at another special meeting, Stanton again tendered his resignation, which this time was accepted.The "gratuity" was duly paid. So was a smaller one to Stanton's (and the Operating Company's) secretary, under a similar resolution, upon her resignation at the same time. The two corporations shared the expense of the payments. There was undisputed testimony that there were in fact no enforceable rights or claims to pension and retirement benefits which had not accrued at the time of the taxpayer's resignation, and that the last proviso of the resolution was inserted simply out of an abundance of caution. The taxpayer received in cash a refund of his contributions to the retirement plans, and there is no suggestion that he was entitled to more. He was required to perform no further services for Trinity after his resignation.The Commissioner asserted a deficiency against the taxpayer after the latter had failed to include the payments in question in gross income. After payment of the deficiency and administrative rejection of a refund claim, the taxpayer sued the United States for a refund in the District Court for the Eastern District of New York. 137 F. Supp. 803. The trial judge, sitting without a jury, made the simple finding that the payments were a "gift," [Footnote 3] and judgment was entered for the taxpayer. The Court of Appeals for the Second Circuit reversed. 268 F.2d 727.The Government, urging that clarification of the problem typified by these two cases was necessary, and that Page 363 U. S. 284 the approaches taken by the Courts of Appeals for the Second and the Sixth Circuits were in conflict, petitioned for certiorari in No. 376, and acquiesced in the taxpayer's petition in No. 546. On this basis, and because of the importance of the question in the administration of the income tax laws, we granted certiorari in both cases. 361 U.S. 923.The exclusion of property acquired by gift from gross income under the federal income tax laws was made in the first income tax statute [Footnote 4] passed under the authority of the Sixteenth Amendment, and has been a feature of the income tax statutes ever since. The meaning of the term "gift" as applied to particular transfers has always been a matter of contention. [Footnote 5] Specific and illuminating legislative history on the point does not appear to exist. Analogies and inferences drawn from other revenue provisions, such as the estate and gift taxes, are dubious. See Lockard v. Commissioner, 166 F.2d 409. The meaning of the statutory term has been shaped largely by the decisional law. With this, we turn to the contentions made by the Government in these cases.First. The Government suggests that we promulgate a new "test" in this area to serve as a standard to be applied by the lower courts and by the Tax Court in dealing with the numerous cases that arise. [Footnote 6] We reject this invitation. We are of opinion that the governing principles are necessarily general, and have already been spelled out in the opinions of this Court, and that the problem is one which, under the present statutory framework, does not lend itself to any more definitive statement Page 363 U. S. 285 that would produce a talisman for the solution of concrete cases. The cases at bar are fair examples of the settings in which the problem usually arises. They present situations in which payments have been made in a context with business overtones -- an employer making a payment to a retiring employee; a businessman giving something of value to another businessman who has been of advantage to him in his business. In this context, we review the law as established by the prior cases here.The course of decision here makes it plain that the statute does not use the term "gift" in the common law sense, but in a more colloquial sense. This Court has indicated that a voluntarily executed transfer of his property by one to another, without any consideration or compensation therefor, though a common law gift, is not necessarily a "gift" within the meaning of the statute. For the Court has shown that the mere absence of a legal or moral obligation to make such a payment does not establish that it is a gift. Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 279 U. S. 730. And, importantly, if the payment proceeds primarily from "the constraining force of any moral or legal duty," or from "the incentive of anticipated benefit" of an economic nature, Bogardus v. Commissioner, 302 U. S. 34, 302 U. S. 41, it is not a gift. And, conversely, "[w]here the payment is in return for services rendered, it is irrelevant that the donor derives no economic benefit from it." Robertson v. United States, 343 U. S. 711, 343 U. S. 714. [Footnote 7] A gift in the statutory sense, on the other hand, proceeds from a "detached and disinterested generosity," Commissioner v. LoBue, 351 U. S. 243, 351 U. S. 246; "out of affection, respect, admiration, charity or like impulses." Robertson v. United States, supra, at 343 U. S. 714. And, in this regard, the most critical consideration, as the Court was agreed in the leading case here, is the transferor's "intention." Page 363 U. S. 286 Bogardus v. Commissioner, 302 U. S. 34, 302 U. S. 43. "What controls is the intention with which payment, however voluntary, has been made." Id. at 302 U. S. 45 (dissenting opinion). [Footnote 8]The Government says that this "intention" of the transferor cannot mean what the cases on the common law concept of gift call "donative intent." With that we are in agreement, for our decisions fully support this. Moreover, the Bogardus case itself makes it plain that the donor's characterization of his action is not determinative -- that there must be an objective inquiry as to whether what is called a gift amounts to it in reality. 302 U.S. at 302 U. S. 40. It scarcely needs adding that the parties' expectations or hopes as to the tax treatment of their conduct, in themselves, have nothing to do with the matter.It is suggested that the Bogardus criterion would be more apt if rephrased in terms of "motive," rather than "intention." We must confess to some skepticism as to whether such a verbal mutation would be of any practical consequence. We take it that the proper criterion, established by decision here, is one that inquires what the basic reason for his conduct was in fact -- the dominant reason that explains his action in making the transfer. Further than that we do not think it profitable to go. Page 363 U. S. 287Second. The Government's proposed "test," while apparently simple and precise in its formulation, depends frankly on a set of "principles" or "presumptions" derived from the decided cases, and concededly subject to various exceptions; and it involves various corollaries, which add to its detail. Were we to promulgate this test as a matter of law, and accept with it its various presuppositions and stated consequences, we would be passing for beyond the requirements of the cases before us, and would be painting on a large canvas with indeed a broad brush. The Government derives it test from such propositions as the following: that payments by an employer to an employee, even though voluntary, ought, by and large, to be taxable; that the concept of a gift is inconsistent with a payment's being a deductible business expense; that a gift involves "personal" elements; that a business corporation cannot properly make a gift of its assets. The Government admits that there are exceptions and qualifications to these propositions. We think, to the extent they are correct, that these propositions are not principles of law, but rather maxims of experience that the tribunals which have tried the facts of cases in this area have enunciated in explaining their factual determinations. Some of them simply represent truisms: it doubtless is, statistically speaking, the exceptional payment by an employer to an employee that amounts to a gift. Others are overstatements of possible evidentiary inferences relevant to a factual determination on the totality of circumstances in the case: it is doubtless relevant to the over-all inference that the transferor treats a payment as a business deduction, or that the transferor is a corporate entity. But these inferences cannot be stated in absolute terms. Neither factor is a shibboleth. The taxing statute does not make nondeductibility by the transferor a condition on the "gift" exclusion; nor does it draw and distinction, in terms, between transfers by corporations Page 363 U. S. 288 and individuals, as to the availability of the "gift" exclusion to the transferee. The conclusion whether a transfer amounts to a "gift" is one that must be reached on consideration of all the factors.Specifically, the trier of fact must be careful not to allow trial of the issue whether the receipt of a specific payment is a gift to turn into a trial of the tax liability, or of the propriety, as a matter of fiduciary or corporate law, attaching to the conduct of someone else. The major corollary to the Government's suggested "test" is that, as an ordinary matter, a payment by a corporation cannot be a gift, and, more specifically, there can be no such thing as a "gift" made by a corporation which would allow it to take a deduction for an ordinary and necessary business expense. As we have said, we find no basis for such a conclusion in the statute; and if it were applied as a determinative rule of "law," it would force the tribunals trying tax cases involving the donee's liability into elaborate inquiries into the local law of corporations or into the peripheral deductibility of payments as business expenses. The former issue might make the tax tribunals the most frequent investigators of an important and difficult issue of the laws of the several States, and the latter inquiry would summon one difficult and delicate problem of federal tax law as an aid to the solution of another. [Footnote 9] Or perhaps there would be required a trial of the vexed issue whether there was a "constructive" distribution of corporate property, for income tax purposes, to the corporate Page 363 U. S. 289 agents who had sponsored the transfer. [Footnote 10] These considerations, also, reinforce us in our conclusion that, while the principles urged by the Government may, in nonabsolute form as crystallizations of experience, prove persuasive to the trier of facts in a particular case, neither they nor any more detailed statement than has been made can be laid down as a matter of law.Third. Decision of the issue presented in these cases must be based ultimately on the application of the factfinding tribunal's experience with the mainsprings of human conduct to the totality of the facts of each case. The nontechnical nature of the statutory standard, the close relationship of it to the date of practical human experience, and the multiplicity of relevant factual elements, with their various combinations, creating the necessity of ascribing the proper force to each, confirm us in our conclusion that primary weight in this area must be given to the conclusions of the trier of fact. Baker v. Texas & Pacific R. Co., 359 U. S. 227; Commissioner v. Heininger, 320 U. S. 467, 320 U. S. 475; United States v. Yellow Cab Co., 338 U. S. 338, 338 U. S. 341; Bogardus v. Commissioner, supra, at 302 U. S. 45 (dissenting opinion). [Footnote 11] Page 363 U. S. 290This conclusion may not satisfy an academic desire for tidiness, symmetry, and precision in this area, any more than a system based on the determinations of various factfinders ordinarily does. But we see it as implicit in the present statutory treatment of the exclusion for gifts, and in the variety of forums in which federal income tax cases can be tried. If there is fear of undue uncertainty or overmuch litigation, Congress may make more precise its treatment of the matter by singling out certain factors and making them determinative of the matters, as it has done in one field of the "gift" exclusion's former application, that of prizes and awards. [Footnote 12] Doubtless diversity of result will tend to be lessened somewhat, since federal income tax decisions, even those in tribunals of first instance turning on issues of fact, tend to be reported, and since there may be a natural tendency of professional triers of fact to follow one another's determinations, even as to factual matters. But the question here remains basically one of fact, for determination on a case-by-case basis.One consequence of this is that appellate review of determinations in this field must be quite restricted. Where a jury has tried the matter upon correct instructions, Page 363 U. S. 291 the only inquiry is whether it cannot be said that reasonable men could reach differing conclusions on the issue. Baker v. Texas & Pacific R. Co., supra, at 359 U. S. 228. Where the trial has been by a judge without a jury, the judge's findings must stand unless "clearly erroneous." Fed.Rules Civ.Proc. 52(a)."A finding is 'clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."United States v. United States Gypsum Co., 333 U. S. 364, 333 U. S. 395. The rule itself applies also to factual inferences from undisputed basic facts, id. at 333 U. S. 394, as will on many occasions be presented in this area. Cf. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U. S. 605, 339 U. S. 609-610. And Congress has, in the most explicit terms, attached the identical weight to the findings of the Tax Court. I.R.C. § 7482(a). [Footnote 13]Fourth. A majority of the Court is in accord with the principles just outlined. And, applying them to the Duberstein case, we are in agreement, on the evidence we have set forth, that it cannot be said that the conclusion of the Tax Court was "clearly erroneous." It seems to us plain that, as trier of the facts, it was warranted in concluding that, despite the characterization of the transfer of the Cadillac by the parties, and the absence of any obligation, even of a moral nature, to make it, it was, Page 363 U. S. 292 at bottom, a recompense for Duberstein's past services, or an inducement for him to be of further service in the future. We cannot say with the Court of Appeals that such a conclusion was "mere suspicion" on the Tax Court's part. To us, it appears based in the sort of informed experience with human affairs that factfinding tribunals should bring to this task.As to Stanton, we are in disagreement. To four of us, it is critical here that the District Court as trier of fact made only the simple and unelaborated finding that the transfer in question was a "gift." [Footnote 14] To be sure, conciseness is to be strived for, and prolixity avoided, in findings; but, to the four of us, there comes a point where findings become so sparse and conclusory as to give to revelation of what the District Court's concept of the determining facts and legal standard may be. See Matton Oil Transfer Corp. v. The Dynamic, 123 F.2d 999, 1000-1001. Such conclusory, general findings do not constitute compliance with Rule 52's direction to "find the facts specially and state separately . . . conclusions of law thereon." While the standard of law in this area is not a complex one, we four think the unelaborated finding of ultimate fact here cannot stand as a fulfillment of these requirements. It affords the reviewing court not the semblance of an indication of the legal standard with which the trier of fact has approached his task. For all that appears, the District Page 363 U. S. 293 Court may have viewed the form of the resolution or the simple absence of legal consideration as conclusive. While the judgment of the Court of Appeals cannot stand, the four of us think there must be further proceedings in the District Court looking toward new and adequate findings of fact. In this, we are joined by MR. JUSTICE WHITTAKER, who agrees that the findings were inadequate, although he does not concur generally in this opinion.Accordingly, in No. 376, the judgment of this Court is that the judgment of the Court of Appeals is reversed, and in No. 546, that the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtCommissioner v. Duberstein, 363 U.S. 278 (1960)Commissioner v. DubersteinNo. 376Argued March 23, 1960Decided June 13, 1960*363 U.S. 278Syllabus1. This Court rejects the Government's suggestion that it promulgate a new "test" to serve as a standard to be applied by the lower courts and by the Tax Court in dealing with numerous cases involving the question what is a "gift" excludable from income under the Internal Revenue Code, since the governing principles are necessarily general, and have already been spelled out in the opinions of this Court. Pp. 363 U. S. 284-286.2. The conclusion whether a transfer amounts to a "gift" is one that must be reached on consideration of all the factors. While the principles urged by the Government may, in nonabsolute form as crystallizations of experience, prove persuasive to the trier of facts in a particular case, they cannot be laid down as a matter of law. Pp. 363 U. S. 287-289.3. Determination in each individual case as to whether the transaction in question was a "gift" must be based ultimately on the application of the factfinding tribunal's experience with the mainsprings of human conduct to the totality of the facts in the case, and appellate review of the conclusion reached by the fact-finding tribunal must be quite restricted. Pp. 363 U. S. 289-291.4. In No. 376, Duberstein, an individual taxpayer, gave to a business corporation, upon request, the names of potential customers. The information proved valuable, and the corporation reciprocated by giving Duberstein a Cadillac automobile, charging the cost thereof as a business expense on its own corporate income tax return. The Tax Court concluded that the car was not a "gift" excludable from income under § 22(b)(3) of the Internal Revenue Code of 1939.Held: on the record in this case, it cannot be said Page 363 U. S. 279 that the Tax Court's conclusion was "clearly erroneous," and the Court of Appeals erred in reversing its judgment. Pp. 363 U. S. 279-281, 363 U. S. 291-292.5. In No. 546, Stanton, upon resigning as comptroller of a church corporation and as president of its wholly owned subsidiary created to manage its extensive real estate holdings, was given "a gratuity" of $20,000 "in appreciation of" his past services. The Commissioner assessed an income tax deficiency against him for failure to include this amount in his gross income. Stanton paid the deficiency and sued in a Federal District Court for a refund. The trial judge, sitting without a jury, made the simple finding that the payment was a "gift," and entered judgment for Stanton. The Court of Appeals reversed.Held: the finding of the District Court was inadequate; the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for further proceedings. Pp. 363 U. S. 281-283, 363 U. S. 292-293.265 F.2d 28 reversed.268 F.2d 727, judgment vacated and cause remanded.

1958_518

MR. JUSTICE CLARK delivered the opinion of the Court.This proceeding tests the jurisdiction, as well as the discretion, of the Federal Power Commission in the certificating of the sale of natural gas under § 7(e) of the Natural Gas Act of 1938, as amended, 15 U.S.C. § 717 et seq. [Footnote 1] The Commission has issued a certificate of public convenience and necessity to petitioners, producers of natural gas, [Footnote 2] to sell to petitioner Tennessee Gas Transmission Co. 1.67 trillion cubic feet of natural gas at an initial price of 224 cents per MCF, Page 360 U. S. 381 including a tax of 1 cent per MCF. Continental Oil Co., 17 F.P.C. 880. In the same proceeding and on the same evidence, it had twice refused to issue such an unconditional certificate because of insufficient evidence or testimony"on which to base a finding that the public convenience and necessity requires the sale of these volumes of gas at the particular rate level here proposed."On the second occasion, it proposed to petitioners that the certificates be conditioned upon an initial price of 18 cents per MCF (including the 1-cent tax), to be increased to 22.4 cents per MCF (including the 1-cent tax) after the first 24-hour delivery period, the latter rate to be subjected to the "just and reasonable" provisions of § 4 of the Act, 15 U.S.C. § 717c. The petitioners refused this proposal, and Tennessee advised the Commission that, unless the certificates were issued without such conditions, CATCO would not dedicate its gas to the interstate market. Upon rehearing, after argument but without additional evidence, the Commission issued the certificates declaring"important as is the issue of price, that, as far as the public is concerned, the precise charge that is made initially is less important than the assurance of this great supply of gas"for interstate markets. 17 F.P.C. at 881.The respondents, other than the Public Service Commission of the State of New York, are public utilities in New York and New Jersey. They buy gas from petitioner Tennessee for distribution in those States. They and the New York Commission oppose the issuance of the certificates on the ground that their issuance will increase the price of gas to consumers in those States, of whom there are over a million, using Tennessee's gas. Upon the issuance of the certificates, the respondents filed petitions for review with the Court of Appeals. It held that"Congress has not given the Commission power to inquire into the issue of public convenience and necessity where, as Page 360 U. S. 382 here, the applicant circumscribes the scope of that inquiry by attaching a condition to its application requiring the Commission to forego the consideration of an element which may be necessary in the formulation of its judgment."Public Service Comm'n of New York v. Federal Power Comm'n, 3 Cir., 257 F.2d 717, 723. Concluding that the Commission had no jurisdiction to conduct such "a limited inquiry," ibid., it vacated the order granting the certificates and remanded the case to the Commission. The importance in the administration of the Act of the questions thus posed required the granting of certiorari, 358 U.S. 926 (1959). We have concluded that the Court of Appeals was in error in deciding that the Commission had no jurisdiction. However, for reasons hereafter developed, we hold that the order of the Commission in granting the certificates was in error, and we therefore affirm the judgment of the Court of Appeals.The natural gas involved here is of a Miocene sand located below seabed out in the Gulf of Mexico some 15 to 25 miles offshore from Cameron and Vermilion Parishes, Louisiana. The petitioners in No. 518 are each independent natural gas producers. They jointly own oil and gas leases (25% to each company) which they obtained from Louisiana covering large acreages of the Continental Shelf off the Louisiana coast. Jurisdiction over the Continental Shelf is claimed by the United States, and the question is now in litigation. The Congress has continued existing leases in effect pending the outcome of the controversy over the title. 67 Stat. 462, 43 U.S.C. (Supp. I, 1954) §§ 1331-1343. The four companies' joint venture has resulted in the discovery of huge fields of natural gas, and they have dedicated some 1.75 trillion cubic feet of gas from 95,000 acres of their leases to the petitioner Tennessee Gas Transmission Company, a natural gas company subject to the jurisdiction of the Page 360 U. S. 383 Commission. [Footnote 3] The latter is the petitioner in No. 536, which has been consolidated with No. 518.The four contracts dedicating the gas to Tennessee run from each of the petitioner producers. The contracts call for an initial price of 22.4 cents per MCF for the gas, including 1-cent tax, with escalator clauses calling for periodic increases in specific amounts. [Footnote 4] In addition, they provide for Tennessee to receive the gas at platforms on the well sites out some 15 to 25 miles in the Gulf. This requires it to build approximately 107 miles of pipeline from its nearest existing pipeline point to the offshore platforms at wellhead. The estimated cost was $16,315,412. It further appears that the necessity for the certificates was based on an application of Tennessee, Docket G-11107, in which Tennessee requested certification to enlarge and extend its facilities. This program included the building of a pipeline from southeast Louisiana to Portland, Tennessee, which would carry a large proportion of the gas from these leases. Its cost was estimated at $85,000,000. In addition, the contracts provide that Tennessee give free carriage from the wells to the shore of all condensate or distillate in the gas for the account of producers who have the option to separate it from the gas at shore stations. We need not discuss the contract provisions more minutely, though respondents do claim that Page 360 U. S. 384 other requirements place a greater burden on Tennessee and, in practical effect, increase the stated price of the gas to it.The Presiding Examiner, on March 29, 1957, found that the sales were required by the public convenience and necessity. Continental Oil Co., 17 F.P.C. 563. While he found that the proposed price was higher than any price Tennessee was then paying, he pointed to other prices currently paid for onshore sales "for smaller reserves and smaller future potentials." Id. at 571. The average weighted cost of gas to Tennessee he found would be increased, if the contract price was certificated, by .97 cent per MCF. [Footnote 5] However, he said that no showing had been made that this would lead to an increase in Tennessee's rates to jurisdictional customers or result in an increase in the price governing its other purchases. He refused to condition the certificates on the acceptance of a lower price by the parties on the ground that no "showing of imprudence or of abuse of discretion by management," ibid., had been made that indicated the proposed price could not be accepted temporarily as consistent with the public convenience and necessity, pending review in a § 5(a) proceeding. However, he did condition Page 360 U. S. 385 his recommendation on the approval of Tennessee's application in Docket G-11107 above mentioned.The Commission, as we have indicated, took three strikes at the recommendations of the Examiner. On April 22, it reversed his finding on public convenience and necessity because the evidence was insufficient as to price. It said:"The importance of this issue in certificating this sale cannot easily be overemphasized. This is the largest reserve ever committed to one sale. This is the first sale from the newly developed offshore fields from which large proportions of future gas supplies will be taken. This is the highest price level at which the sale of gas to Tennessee Gas has been proposed.""These factors make it abundantly evident that, in the public interest, this crucial sale should not be permanently certificated unless the rate level has been shown to be in the public interest."Id. at 575. The Commission granted petitioners temporary certificates and remanded the proceeding to the Examiner "to determine at what rates the public convenience and necessity requires these sales" of natural gas to Tennessee under a permanent certificate. Id. at 576. The producers immediately moved for modification, asserting that they could not present sufficient evidence "within any reasonable period in the future" to meet the necessities of the remand and, further, could not "afford to commence construction until at least the initial rate [question] is resolved." The Commission, on May 20, however, reiterated its belief that"the record does not contain sufficient evidence on which to base a finding that the public convenience and necessity requires the sale of the gas at that particular rate level."17 F.P.C. 732, 733-734. In an Page 360 U. S. 386 effort to ameliorate the situation represented by the producers, the Commission did grant the certificates, but conditioned them upon the producers' acceptance of an initial price of 17 cents per MCF (plus the 1-cent tax), which was the highest price theretofore paid by Tennessee in the Southwest. It also agreed that, one day after the commencement of deliveries of gas, the 17-cent price would be escalated to 21.4 cents (plus 1 cent for taxes), the increase to be collected under bond, subject to proof and refund under the provisions of § 4 of the Act. This time, Tennessee sought rehearing, advising the Commission that the producers would not accept the 17-cent initial price order of May 20, and that "the contracts will be terminated," with the consequent "loss of natural gas supplies" required for Tennessee's customers. The Commission, after oral argument, did not withdraw its previous findings in the matter, but predicated its third order on"the primary consideration that the public served through the Tennessee Gas system is greatly in need of increased supplies of natural gas. . . . In view of these circumstances and the fact that the record does not show that the 21.4-cent (plus 1 cent for taxes) rate is necessarily excessive, we agree with the presiding examiner that this certificate proceeding . . . should not assume the character of a rate proceeding under Section 5(a)."17 F.P.C. 880, 881. Asserting that it was of the opinion that it would be able "to adequately protect the public interest with respect to the matter of price," ibid., it ordered the certificates issued and directed that, since the price"is higher than Tennessee Gas is paying under any other contract, it should be subject to prompt investigation under Section 5(a) as to its reasonableness."Id. at 882.We note that the Commission did not seek certiorari here, but has filed a brief amicus curiae. [Footnote 6] It does not urge Page 360 U. S. 387 reversal of the judgment, but attacks the ground upon which the Court of Appeals bottomed its remand, namely, lack of Commission jurisdiction to consider the limited proposal of petitioners. The Commission's brief suggests that the Court not reach the issue tendered by petitioners, i.e., must the Commission, in a § 7 proceeding, decide whether the proposed initial rate is just and reasonable? Instead, the Commission says, if the judgment must be affirmed, it would be better to base the affirmance on the ground that its order "was not supported by sufficient evidence, and hence constituted an abuse of discretion in the circumstances of the particular case. . . ." Brief for the Federal Power Commission, p. 31. Petitioners oppose such a disposition, contending the evidence was quite substantial.I. JURISDICTION OF THE COMMISSIONThe Court of Appeals thought that the Commission had no jurisdiction to consider petitioners' proposal because it was limited to a firm price agreed upon by the parties applicant. Their refusal to accept certification at a lower price, even to the extent of canceling their contracts and withholding the gas from interstate commerce, the court held, resulted in the Commission's losing jurisdiction. We do not believe that this follows. No sales, intrastate or interstate, of gas had ever been made from the leases involved here. The contracts under which the petitioners proposed to sell the gas in the interstate market were all conditioned on the issuance of certificates of public convenience and necessity. A failure by either party to secure such certificates rendered the contracts subject to termination. Certainly the filing of the application for a certificate did not constitute a dedication to the interstate market of the gas recoverable under these leases. Nor is there doubt that the producers were at liberty to refuse conditional certificates proposed by Page 360 U. S. 388 the Commission's second order. While the refusal might have been couched in more diplomatic language, it had no effect on the Commission's power to act on the rehearing requested. Even though the Commission did march up the hill only to march down again upon reaching the summit, we cannot say that this about-face deprived it of jurisdiction. We find nothing illegal in the petitioners' rejection of the alternative price proposed by the Commission and their standing firm on their own.II. THE VALIDITY OF THE ORDERThe purpose of the Natural Gas Act was to underwrite just and reasonable rates to the consumers of natural gas. Federal Power Commission v. Hope Natural Gas Co., 320 U. S. 591 (1944). As the original § 7(c) provided, it was"the intention of Congress that natural gas shall be sold in interstate commerce for resale for ultimate public consumption for domestic, commercial, industrial, or any other use at the lowest possible reasonable rate consistent with the maintenance of adequate service in the public interest."52 Stat. 825. [Footnote 7] The Act was so framed as to afford consumers a complete, permanent and effective bond of protection from excessive rates and charges. The heart of the Act is found in those provisions requiring initially that any"proposed service, sale, operation, construction, extension, or acquisition . . . will be required by the present or future public convenience and necessity,"§ 7(e), 15 U.S.C. § 717f(e), and that all rates and charges "made, demanded, or received" shall be "just and reasonable," § 4, 15 U.S.C. § 717c. The Act prohibits such movements unless and until the Commission Page 360 U. S. 389 issues a certificate of public convenience and necessity therefor, § 7(c), 15 U.S.C. § 717f(c). Section 7(e) vests in the Commission control over the conditions under which gas may be initially dedicated to interstate use. Moreover, once so dedicated, there can be no withdrawal of that supply from continued interstate movement without Commission approval. The gas operator, although to this extent a captive subject to the jurisdiction of the Commission, is not without remedy to protect himself. He may, unless otherwise bound by contract, United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332 (1956), file new rate schedules with the Commission. This rate becomes effective upon its filing, subject to the 5-month suspension provision of § 4 and the posting of a bond, where required. This not only gives the natural gas company opportunity to increase its rates where justified, but likewise guarantees that the consumer may recover refunds for moneys paid under excessive increases. The overriding intent of the Congress to give full protective coverage to the consumer as to price is further emphasized in § 5 of the Act, 15 U.S.C. § 717d, which authorizes the Commission, sua sponte or otherwise, to institute an investigation into existing rates and charges and to fix them at a just and reasonable level. Under this section, however, the rate found by the Commission to be just and reasonable becomes effective prospectively only. Gas purchasers, therefore, have no protection from excessive charges collected during the pendency of a § 5 proceeding.In view of this framework in which the Commission is authorized and directed to act, the initial certificating of a proposal under § 7(e) of the Act as being required by the public convenience and necessity becomes crucial. This is true because the delay incident to determination in § 5 proceedings through which initial certificated rates are reviewable appears nigh interminable. Although Page 360 U. S. 390 Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, was decided in 1954, cases instituted under § 5 are still in the investigative stage. This long delay, without the protection of refund, as is possible in a § 4 proceeding, would provide a windfall for the natural gas company, with a consequent squall for the consumers. This the Congress did not intend. Moreover, the fact that the Commission was not given the power to suspend initial rates under § 7 makes it the more important, as the Commission itself says, that "this crucial sale should not be permanently certificated unless the rate level has been shown to be in the public interest." 17 F.P.C. 563, 575.This is especially true where, as here, the initial price will set a pattern in an area where enormous reserves of gas appear to be present. We note that, in petitioners' proof, a map of the Continental Shelf area off of the coast of Louisiana shows that the leases here involved cover but 17 out of a blocked-out area covering some 900 blocks of 5,000 acres each. The potential of this vast acreage, in light of discoveries already made as shown by the record, is stupendous. The Commission has found that the transaction here covers the largest reserve ever committed to interstate commerce in a single sale. Indications are that it is but a puff in comparison to the enormous potentials present under the seabed of the Gulf. The price certificated will, in effect, become the floor for future contracts in the area. This has been proven by conditions in southern Louisiana, where prices have now vaulted from 17 cents to over 23 cents per MCF. New price plateaus will thus be created as new contracts are made, and, unless controlled, will result in "exploitation" at the expense of the consumer, who eventually pays for the increases in his monthly bill.It is true that the Act does not require a determination of just and reasonable rates in a § 7 proceeding as it does in one under either § 4 or § 5. Nor do we hold that a Page 360 U. S. 391 "just and reasonable" rate hearing is a prerequisite to the issuance of producer certificates. What we do say is that the inordinate delay presently existing in the processing of § 5 proceedings requires a most careful scrutiny and responsible reaction to initial price proposals of producers under § 7. Their proposals must be supported by evidence showing their necessity to "the present or future public convenience and necessity" before permanent certificates are issued. This is not to say that rates are the only factor bearing on the public convenience and necessity, for § 7(e) requires the Commission to evaluate all factors bearing on the public interest. The fact that prices have leaped from one plateau to the higher levels of another, as is indicated here, does make price a consideration of prime importance. This is the more important during this formative period when the ground rules of producer regulation are being evolved. Where the application, on its face or on presentation of evidence, signals the existence of a situation that probably would not be in the public interest, a permanent certificate should not be issued.There is, of course, available in such a situation a method by which the applicant and the Commission can arrive at a rate that is in keeping with the public convenience and necessity. The Congress, in § 7(e), has authorized the Commission to condition certificates in such manner as the public convenience and necessity may require. Where the proposed price is not in keeping with the public interest because it is out of line or because its approval might result in a triggering of general price rises or an increase in the applicant's existing rates by reason of "favored nation" clauses or otherwise, the Commission, in the exercise of its discretion, might attach such conditions as it believes necessary.This is not an encroachment upon the initial ratemaking privileges allowed natural gas companies under the Page 360 U. S. 392 Act, United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, but merely the exercise of that duty imposed on the Commission to protect the public interest in determining whether the issuance of the certificate is required by the public convenience and necessity, which is the Act's standard in § 7 applications. In granting such conditional certificates, the Commission does not determine initial prices, nor does it overturn those agreed upon by the parties. Rather, it so conditions the certificate that the consuming public may be protected while the justness and reasonableness of the price fixed by the parties is being determined under other sections of the Act. Section 7 procedures in such situations thus act to hold the line awaiting adjudication of a just and reasonable rate. Thus, the purpose of the Congress "to create a comprehensive and effective regulatory scheme," Panhandle Eastern Pipe Line Co. v. Public Service Comm'n of Indiana, 332 U. S. 507, 332 U. S. 520 (1947), is given full recognition. And § 7 is given only that scope necessary for"a single statutory scheme under which all rates are established initially by the natural gas companies, by contract or otherwise, and all rates are subject to being modified by the Commission. . . ."United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, at 350 U. S. 341. On the other hand, if unconditional certificates are issued where the rate is not clearly shown to be required by the public convenience and necessity, relief is limited to § 5 proceedings, and, as we have indicated, full protection of the public interest is not afforded.Our examination of the record here indicates that there was insufficient evidence to support a finding of public convenience and necessity prerequisite to the issuance of the permanent certificates. The witnesses tendered developed little more information than was included in the printed contracts. As the proposed contract price was higher than any paid by Tennessee, including offshore Page 360 U. S. 393 production in the West Delta area of Louisiana, it is surprising that evidence, if available, was not introduced as to the relative costs of production in the two submerged areas. Moreover, the record indicates that the proposed price was some 70% higher than the weighted average cost of gas to Tennessee; still, no effort was made to give the "reason why." More damaging, was the evidence that this price was greatly in excess of that which Tennessee pays from any lease in southern Louisiana. Likewise the $16,000,000 pipeline to the producers' wells was unsupported by evidence of practice or custom. Respondents contend -- and it stands undenied -- that this alone would add 2 cents per MCF to the cost of the gas. Again, the free movement of distillates retained by the producers was "shrugged off" as being de minimis without any supporting data whatever. Nor was the evidence as to whether the certification of this price would "trigger" increases in leases with "favored nation" clauses convincing, and the claim that it would not lead to an increase in rates by Tennessee was not only unsupported, but has already proven unfounded. [Footnote 8]Nor do we find any support whatever in the record for the conclusory finding on which the order was based that "the public served through the Tennessee Gas system is greatly in need of increased supplies of natural gas." 17 F.P.C. 880, 881. Admittedly any such need was wrapped up in the Commission's action in Docket G-11107, where Tennessee was asking for permission to enlarge its facilities. However, the two dockets were not consolidated, and the Presiding Examiner conditioned his approval here on the granting of the application in Docket G-11107, no part of which record is here. Neither is Page 360 U. S. 394 there evidence supporting the finding that the producers "would seek to dispose of their gas elsewhere than to Tennessee Gas and the interstate market," ibid. While the Commission says that statements were made in argument, apparently by counsel, that this was the case, we find no such testimony. Since some 90% of all commercial gas moves into the interstate market, the sale of such vast quantities as available here would hardly be profitable except interstate.These considerations require an affirmance of the judgment with instructions that the applications be remanded to the Commission for further proceedings.It is so ordered

U.S. Supreme CourtAtlantic Refining Co. v. Pub. Serv. Comm'n, 360 U.S. 378 (1959)Atlantic Refining Co. v. Public Service Commission of New YorkNo. 518Argued May 20-21, 1959Decided June 22, 1959*360 U.S. 378SyllabusFour independent producers applied to the Federal Power Commission under § 7(e) of the Natural Gas Act for a certificate of convenience and necessity authorizing the sale to an interstate pipeline company of an enormous quantity of natural gas from wells in the Gulf of Mexico off the shore of Louisiana at a much higher rate than the pipeline company was then paying for gas. The pipeline company intervened, as did some of its distributor customers and other interested parties, the latter urging a lower rate. After twice refusing to issue the certificate on the ground that the record was insufficient to support a finding that public convenience and necessity required the sale at the proposed rate, the Commission was told that the producers would not dedicate the gas to the interstate market unless a permanent certificate was granted unconditionally and at the rate proposed. Upon rehearing, but without additional evidence, the Commission then issued such a certificate.Held:1. The facts that the producers limited their application to a firm price agreed upon between them and the pipeline company, refused to accept certification at a lower price, and threatened to cancel the contract and withhold the gas from interstate commerce did not deprive the Commission of jurisdiction. Pp. 360 U. S. 387-388.2. The order of the Commission granting the certificates was in error, and it must be vacated and the case remanded to the Commission for further proceedings. Pp. 360 U. S. 382, 360 U. S. 388-394.(a) In view of the framework in which the Commission is authorized and directed to act and the inordinate delay presently existing in proceedings under § 5 to review rates initially certificated, the initial certificating of a proposal under § 7(e) as being Page 360 U. S. 379 required by public convenience and necessity is crucial, and a permanent certificate should not be issued unless the proposed rate has been shown to be in the public interest. Pp. 360 U. S. 388-391.(b) When the price proposed in an application under § 7(e) is not in keeping with the public interest because it is out of line or because its approval might trigger general price rises or an increase in the applicant's existing rates, the Commission, in the exercise of its discretion, may attach such conditions as it may deem necessary. P. 360 U. S. 391.(c) In granting such conditional certificates, the Commission does not determine initial prices, nor does it overturn those agreed upon by the parties. Rather it so conditions the certificates that the consuming public may be protected while the justness and reasonableness of the prices fixed by the parties are being determined under other sections of the Act. Pp. 360 U. S. 391-392.(d) If unconditional certificates are issued where the rate is not clearly shown to be required by the public convenience and necessity, relief is limited to § 5 proceedings, and full protection of the public interest is not afforded. P. 360 U. S. 392.(e) The record contains insufficient evidence to support a finding of public convenience and necessity prerequisite to the issuance of permanent certificates. Pp. 360 U. S. 392-394.257 F.2d 717 affirmed on different grounds. Page 360 U. S. 380

1990_90-5193

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner Dawud Majid Mu'Min was convicted of murdering a woman in Prince William County, Virginia, while out of prison on work detail, and was sentenced to death. The case engendered substantial publicity, and 8 of the 12 venirepersons eventually sworn as jurors answered on voir dire that they had read or heard something about the case. None of those who had read or heard something indicated that they had formed an opinion based on the outside information, or that it would affect their ability to determine petitioner's guilt or innocence based solely on the evidence presented at trial. Petitioner contends, however, that his Sixth Amendment right to an impartial jury and his right to due process under the Fourteenth Amendment were violated because the trial judge refused to question further prospective jurors about the specific contents of the news reports to which they had been exposed. We reject petitioner's submission. Page 500 U. S. 418Mu'Min was an inmate at the Virginia Department of Corrections' Haymarket Correctional Unit serving a 48-year sentence for a 1973 first-degree murder conviction. On September 22, 1988, he was transferred to the Virginia Department of Transportation (VDOT) Headquarters in Prince William County and assigned to a work detail supervised by a VDOT employee. During his lunch break, he escaped over a perimeter fence at the VDOT facility and made his way to a nearby shopping center. Using a sharp instrument that he had fashioned at the VDOT shop, Mu'Min murdered and robbed Gladys Nopwasky, the owner of a retail carpet and flooring store. Mu'Min then returned to his prison work crew at the VDOT, discarding his bloodied shirt and the murder weapon near the highway.About three months before trial, petitioner submitted to the trial court, in support of a motion for a change of venue, 47 newspaper articles relating to the murder. [Footnote 1] One or more of the articles discussed details of the murder and investigation, and included information about petitioner's prior criminal record (App. 963-969), the fact that he had been rejected for parole six times (id., at 923, 942), accounts of alleged prison infractions (id. at 921, 931, 942), details about the prior murder for which Mu'Min was serving his sentence at the time of this murder (id. at 948, 951), a comment that the death penalty had not been available when Mu'Min was convicted for this earlier murder (id. at 948), and indications that Mu'Min had confessed to killing Gladys Nopwasky (id. at 975). Several articles focused on the alleged laxity in the supervision of work gangs (id. at 922-924, 930-931), and argued for reform of the prison work-crew system (id. at 974). The trial judge deferred ruling on the venue motion until after Page 500 U. S. 419 making an attempt to seat a jury (Joint Appendix 8-15 (J.A.)).Shortly before the date set for trial, petitioner submitted to the trial judge 64 proposed voir dire questions [Footnote 2] (id. at 2-7) and filed a motion for individual voir dire. The trial court denied the motion for individual voir dire; it ruled that voir dire would begin with collective questioning of the venire, but the venire would be broken down into panels of four, if necessary, to deal with issues of publicity (id. at 16-17). The trial court also refused to ask any of petitioner's proposed questions relating to the content of news items that potential jurors might have read or seen.Twenty-six prospective jurors were summoned into the courtroom and questioned as a group (id. at 42-66). When asked by the judge whether anyone had acquired any information about the alleged offense or the accused from the news media or from any other source, 16 of the potential jurors replied that they had (id. at 46-47). The prospective jurors were not asked about the source or content of prior knowledge, but the court then asked the following questions: Page 500 U. S. 420"Would the information that you heard, received, or read from whatever source, would that information affect your impartiality in this case?""Is there anyone that would say what you've read, seen, heard, or whatever information you may have acquired from whatever the source would affect your impartiality so that you could not be impartial?"* * * *"Considering what the ladies and gentlemen who have answered in the affirmative have heard or read about this case, do you believe that you can enter the Jury box with an open mind and wait until the entire case is presented before reaching a fixed opinion or conclusion as to the guilt or innocence of the accused?"* * * *". . . In view of everything that you've seen, heard, or read, or any information from whatever source that you've acquired about this case, is there anyone who believes that you could not become a Juror, enter the Jury box with an open mind and wait until the entire case is presented before reaching a fixed opinion or a conclusion as to the guilt or innocence of the accused?"(Id. at 47-48.) One of the 16 panel members who admitted to having prior knowledge of the case answered in response to these questions that he could not be impartial, and was dismissed for cause (id. at 48-49). Petitioner moved that all potential jurors who indicated that they had been exposed to pretrial publicity be excused for cause (id. at 68). This motion was denied (id. at 69), as was petitioner's renewed motion for a change of venue based on the pretrial publicity (id. at 71).The trial court then conducted further voir dire of the prospective jurors in panels of four (id. at 72-94). Whenever a potential juror indicated that he had read or heard something about the case, the juror was then asked whether he had formed an opinion, and whether he could nonetheless be impartial. Page 500 U. S. 421 None of those eventually seated stated that he had formed an opinion, or gave any indication that he was biased or prejudiced against the defendant. All swore that they could enter the jury box with an open mind and wait until the entire case was presented before reaching a conclusion as to guilt or innocence.If any juror indicated that he had discussed the case with anyone, the court asked follow-up questions to determine with whom the discussion took place, and whether the juror could have an open mind despite the discussion. One juror who equivocated as to whether she could enter the jury box with an open mind was removed sua sponte by the trial judge (id. at 90). One juror was dismissed for cause because she was not "as frank as she could [be]" concerning the effect of her feelings toward members of the Islamic Faith and toward defense counsel (id. at 81). One juror was dismissed because of her inability to impose the death penalty (id. at 86-87), while another was removed based upon his statement that, upon a finding of capital murder, he could not consider a penalty less than death (App. 339-341). The prosecution and the defense each peremptorily challenged 6 potential jurors, and the remaining 14 were seated and sworn as jurors (two as alternates). Petitioner did not renew his motion for change of venue or make any other objection to the composition of the jury. Of the 12 jurors who decided petitioner's case, 8 had at one time or another read or heard something about the case. None had indicated that he had formed an opinion about the case or would be biased in any way.The jury found petitioner guilty of capital murder and recommended that he be sentenced to death. After taking the matter under advisement and reviewing a presentence report, the trial judge accepted the jury's recommendation and sentenced Mu'Min to death. Mu'Min appealed, contending that he was entitled to a new trial as a result of the judge's failure to permit the proposed voir dire questions. By a divided vote, the Supreme Court of Virginia affirmed his conviction Page 500 U. S. 422 and sentence, finding that, while a criminal defendant may properly ask on voir dire whether a juror has previously acquired any information about the case, the defendant does not have a constitutional right to explore the content of the acquired information. Rather, an accused is only entitled to know whether the juror can remain impartial in light of the previously obtained information. 239 Va. 433, 443, 389 S.E.2d 886, 893 (1990). We granted certiorari, 498 U.S. 894 (1990), and now affirm.Our cases dealing with the requirements of voir dire are of two kinds: those that were tried in federal courts, and are therefore subject to this Court's supervisory power, see Rosales-Lopez v. United States, 451 U. S. 182 (1981); Aldridge v. United States, 283 U. S. 308 (1931); and Connors v. United States, 158 U. S. 408 (1895); and those that were tried in state courts, with respect to which our authority is limited to enforcing the commands of the United States Constitution. See Turner v. Murray, 476 U. S. 28 (1986); Ristaino v. Ross, 424 U. S. 589 (1976); and Ham v. South Carolina, 409 U. S. 524 (1973).A brief review of these cases is instructive. In Connors, we said:"[A] suitable inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. This is the rule in civil cases, and the same rule must be applied in criminal cases."158 U.S. at 158 U. S. 413.In Aldridge v. United States, 283 U. S. 308 (1931), counsel for a black defendant sought to have the Court put a question to the jury as to whether any of them might be prejudiced against the defendant because of his race. We held that it was reversible error for the Court not to have put such a question, saying "[t]he Court failed to ask any question which could be Page 500 U. S. 423 deemed to cover the subject." Id. at 283 U. S. 311. More recently, in Rosales-Lopez v. United States, supra, we held that such an inquiry as to racial or ethnic prejudice need not be made in every case, but only where the defendant was accused of a violent crime and the defendant and the victim were members of different racial or ethnic groups. We said:"Because the obligation to empanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire."Id. 451 U.S. at 451 U. S. 189.Three of our cases dealing with the extent of voir dire examination have dealt with trials in state courts. The first of these was Ham v. South Carolina, supra. In that case, the defendant was black, and had been active in the civil rights movement in South Carolina; his defense at trial was that enforcement officers were "out to get him" because of his civil rights activities, and that he had been framed on the charge of marijuana possession of which he was accused. He requested that two questions be asked regarding racial prejudice and one question be asked regarding prejudice against persons, such as himself, who wore beards. We held that the Due Process Clause of the Fourteenth Amendment required the court to ask "either of the brief, general questions urged by the petitioner" with respect to race, id. 409 U.S. at 409 U. S. 527, but rejected his claim that an inquiry as to prejudice against persons with beards be made, "[g]iven the traditionally broad discretion accorded to the trial judge in conducting voir dire. . . ." Id. at 409 U. S. 528.In Ristaino v. Ross, supra, we held that the Constitution does not require a state court trial judge to question prospective jurors as to racial prejudice in every case where the races of the defendant and the victim differ, but in Turner v. Murray, supra, we held that, in a capital case involving a Page 500 U. S. 424 charge of murder of a white person by a black defendant, such questions must be asked.We enjoy more latitude in setting standards for voir dire in federal courts under our supervisory power than we have in interpreting the provisions of the Fourteenth Amendment with respect to voir dire in state courts. But two parallel themes emerge from both sets of cases: first, the possibility of racial prejudice against a black defendant charged with a violent crime against a white person is sufficiently real that the Fourteenth Amendment requires that inquiry be made into racial prejudice; second, the trial court retains great latitude in deciding what questions should be asked on voir dire. As we said in Rosales-Lopez, supra:"Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge's function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions."Id., 451 U.S. at 451 U. S. 188.Petitioner asserts that the Fourteenth Amendment requires more in the way of voir dire with respect to pretrial publicity than our cases have held that it does with respect to racial or ethnic prejudice. Not only must the Court "cover the subject," Aldridge, supra, 283 U.S. at 283 U. S. 311, but it must make precise inquiries about the contents of any news reports that potential jurors have read. Petitioner argues that these "content" questions would materially assist in obtaining a jury less likely to be tainted by pretrial publicity than one selected without such questions. There is a certain common sense appeal to this argument.Undoubtedly, if counsel were allowed to see individual jurors answer questions about exactly what they had read, a better sense of the juror's general outlook on life might be revealed, and such a revelation would be of some use in exercising peremptory challenges. But since peremptory Page 500 U. S. 425 challenges are not required by the Constitution, Ross v. Oklahoma, 487 U. S. 81, 487 U. S. 88 (1988), this benefit cannot be a basis for making "content" questions about pretrial publicity a constitutional requirement. Such questions might also have some effect in causing jurors to reevaluate their own answers as to whether they had formed any opinion about the case, but this is necessarily speculative.Acceptance of petitioner's claim would require that each potential juror be interrogated individually; even were the interrogation conducted in panels of four jurors, as the trial court did here, descriptions of one juror about pretrial publicity would obviously be communicated to the three other members of the panel being interrogated, with the prospect that more harm than good would be done by the interrogation. Petitioner says that the questioning can be accomplished by juror questionnaires submitted in advance at trial, but such written answers would not give counsel or the court any exposure to the demeanor of the juror in the course of answering the content questions. The trial court in this case expressed reservations about interrogating jurors individually, because it might make the jurors feel that they themselves were on trial. While concern for the feelings and sensibilities of potential jurors cannot be allowed to defeat inquiry necessary to protect a constitutional right, we do not believe that "content" questions are constitutionally required.Whether a trial court decides to put questions about the content of publicity to a potential juror or not, it must make the same decision at the end of the questioning: is this juror to be believed when he says he has not formed an opinion about the case? Questions about the content of the publicity to which jurors have been exposed might be helpful in assessing whether a juror is impartial. To be constitutionally compelled, however, it is not enough that such questions might be helpful. Rather, the trial court's failure to ask these Page 500 U. S. 426 questions must render the defendant's trial fundamentally unfair. See Murphy v. Florida, 421 U. S. 794, 421 U. S. 799 (1975).Aldridge was this Court's seminal case requiring inquiry as to racial prejudice, and the opinion makes clear that, in reaching that result, we relied heavily on a unanimous body of state court precedents holding that such an inquiry should be made. 283 U.S. at 283 U. S. 311-313. On the subject of pretrial publicity, however, there is no similar consensus, or even weight of authority, favoring petitioner's position. Among the state court decisions cited to us by the parties, not only Virginia, but South Carolina, State v. Lucas, 285 S.C. 37, 39-40, cert. denied, 472 U.S. 1012 (1985), Massachusetts, Commonwealth v. Burden, 15 Mass.App. 666, 674, 448 N.E.2d 387, 393 (1983), and Pennsylvania, Commonwealth v. Dolhancryk, 273 Pa.Super. 217, 222, 417 A.2d 246, 248 (1979), have refused to adopt such a rule. The Courts of Appeals for the Fifth Circuit, United States v. Davis, 583 F.2d 190, 196 (1978), the Seventh Circuit, United States v. Dellinger, 472 F.2d 340, 375-376 (1972), cert. denied, 410 U.S. 970 (1973), and the Ninth Circuit, Silverthorne v. United States, 400 F.2d 627, 639 (1968), [Footnote 3] have held that in some circumstances such an inquiry is required. The Court of Appeals for the Eleventh Circuit has held that it is Page 500 U. S. 427 not. United States v. Montgomery, 772 F.2d 733, 735736 (1985). The Courts of Appeals for the Eight and District of Columbia Circuits appear to take an intermediate position. United States v. Poludniak, 657 F.2d 948, 956 (CA8 1981), cert. denied sub nom. Weigand v. United States, 455 U.S. 940 (1982); United States v. Haldeman, 181 U.S.App.D.C. 254, 288-289, 559 F.2d 31, 65-66 (1976), cert. denied sub nom. Ehrlichman v. United States, 431 U.S. 933 (1977). Even those Federal Courts of Appeals that have required such an inquiry to be made have not expressly placed their decision on constitutional grounds.As noted above, our own cases have stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias. Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect, and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror. The trial court, of course, does not impute his own perceptions to the jurors who are being examined, but these perceptions should be of assistance to it in deciding how detailed an inquiry to make of the members of the jury venire.Petitioner relies heavily on our opinion in Irvin v. Dowd, 366 U. S. 717 (1961), to support his position. In that case, we held that pretrial publicity in connection with a capital trial had so tainted the jury pool in Gibson County, Indiana, that the defendant was entitled as a matter of federal constitutional law to a change of venue to another county. Our opinion in that case details at great length the extraordinary publicity that attended the defendant's prosecution and conviction for murder."[A] barrage of newspaper headlines, articles, cartoons and pictures was unleashed against [the defendant] during Page 500 U. S. 428 the six or seven months preceding his trial. . . . [T]he newspapers in which the stories appeared were delivered regularly to approximately 95% of the dwellings in Gibson County, and . . . the Evansville radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents."Id. 366 U.S. at 366 U. S. 725. Two-thirds of the jurors actually seated had formed an opinion that the defendant was guilty, and acknowledged familiarity with material facts and circumstances of the case. Id. at 366 U. S. 728. Although each of these jurors said that he could be impartial, we concluded:"With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt."Ibid.We believe that this case is instructive, but not in the way petitioner employs it. It did not deal with any constitutional requirement of voir dire inquiry, and it is not clear from our opinion how extensive an inquiry the trial court made. But the contrast between that case and the present one is marked. In Irvin, the trial court excused over half of a panel of 430 persons because their opinions of the defendant's guilt were so fixed that they could not be impartial, and 8 of the 12 jurors who sat had formed an opinion as to guilt. In the present case, 8 of the 12 jurors who sat answered that they had read or heard something about the case, but none of those 8 indicated that he had formed an opinion as to guilt, or that the information would affect his ability to judge petitioner solely on the basis of the evidence presented at trial.A trial court's findings of juror impartiality may "be overturned only for manifest error.'" Patton v. Yount, 467 U. S. 1025, 467 U. S. 1031 (1984) (quoting Irvin v. Dowd, supra, 366 U.S. at Page 500 U. S. 429 366 U. S. 723). In Patton, we acknowledged that "adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed," 467 U.S. at 467 U. S. 1031, but this is not such a case. Had the trial court in this case been confronted with the "wave of public passion" engendered by pretrial publicity that occurred in connection with Irvin's trial, the Due Process Clause of the Fourteenth Amendment might well have required more extensive examination of potential jurors than it undertook here. But the showings are not comparable; the cases differ both in the kind of community in which the coverage took place and in extent of media coverage. Unlike the community involved in Irvin, the county in which petitioner was tried, Prince William, had a population in 1988 of 182,537, and this was one of nine murders committed in the county that year. It is a part of the metropolitan Washington statistical area, which has a population of over 3 million, and in which, unfortunately, hundreds of murders are committed each year. In Irvin, news accounts included details of the defendant's confessions to 24 burglaries and six murders, including the one for which he was tried, as well as his unaccepted offer to plead guilty in order to avoid the death sentence. They contained numerous opinions as to his guilt, as well as opinions about the appropriate punishment. While news reports about Mu'Min were not favorable, they did not contain the same sort of damaging information. Much of the pretrial publicity was aimed at the Department of Corrections and the criminal justice system in general, criticizing the furlough and work release programs that made this and other crimes possible. Any killing that ultimately results in a charge of capital murder will engender considerable media coverage, and this one may have engendered more than most because of its occurrence during the 1988 Presidential campaign, when a similar crime committed by a Massachusetts inmate became a subject of national debate. But while the pretrial publicity in this case appears to have Page 500 U. S. 430 been substantial, it was not of the same kind or extent as that found to exist in Irvin.Petitioner also relies on the Standards for Criminal Justice 8-3.5 (2d ed.1980), promulgated by the American Bar Association. These standards require interrogation of each juror individually with respect to "what the prospective juror has read and heard about the case," "[i]f there is a substantial possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material." These standards, of course, leave to the trial court the initial determination of whether there is such a substantial possibility. But, more importantly, the standards relating to voir dire are based on a substantive rule that renders a potential juror subject to challenge for cause, without regard to his state of mind, if he has been exposed to and remembers "highly significant information" or "other incriminating matters that may be inadmissible in evidence." That is a stricter standard of juror eligibility than that which we have held the Constitution to require. Under the ABA standard, answers to questions about content, without more, could disqualify the juror from sitting. Under the constitutional standard, on the other hand,"[t]he relevant question is not whether the community remembered the case, but whether the jurors . . . had such fixed opinions that they could not judge impartially the guilt of the defendant."Patton, supra, 467 U.S. at 467 U. S. 1035. Under this constitutional standard, answers to questions about content alone, which reveal that a juror remembered facts about the case, would not be sufficient to disqualify a juror. "It is not required . . . that the jurors be totally ignorant of the facts and issues involved." Irvin, 366 U.S. at 366 U. S. 722.The ABA standards, as indicated in our previous discussion of state and federal court decisions, have not commended themselves to a majority of the courts that have considered the question. The fact that a particular rule may be thought to be the "better" view does not mean that it is incorporated Page 500 U. S. 431 into the Fourteenth Amendment. Cupp v. Naughten, 414 U. S. 141 (1973).The voir dire examination conducted by the trial court in this case was by no means perfunctory. The court asked the entire venire of jurors four separate questions about the effect on them of pretrial publicity or information about the case obtained by other means. One juror admitted to having formed a belief as to petitioner's guilt, and was excused for cause. The trial court then conducted further voir dire in panels of four, and each time an individual juror indicated that he had acquired knowledge about the case from outside sources, he was asked whether he had formed an opinion; none of the jurors seated indicated that he had formed an opinion. One juror who equivocated as to her impartiality was excused by the trial court on its own motion. Several other jurors were excused for other reasons. It is quite possible that, if voir dire interrogation had revealed one or more jurors who had formed an opinion about the case, the trial court might have decided to question succeeding jurors more extensively.Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges. In Aldridge and Ham, we held that the subject of possible racial bias must be "covered" by the questioning of the trial court in the course of its examination of potential jurors, but we were careful not to specify the particulars by which this could be done. We did not, for instance, require questioning of individual jurors about facts or experiences that might have led to racial bias. Petitioner in this case insists, as a matter of constitutional right, not only that the subject of possible bias from pretrial publicity be covered -- which it was -- but that questions specifically dealing with the content of what each juror has read be asked. For the reasons previously stated, we hold that the Due Process Clause of the Fourteenth Amendment does not reach this far, and that the voir dire examination conducted Page 500 U. S. 432 by the trial court in this case was consistent with that provision. The judgment of the Supreme Court of Virginia is accordinglyAffirmed

U.S. Supreme CourtMu'Min v. Virginia, 500 U.S. 415 (1991)Mu'Min v. VirginiaNo. 90-5193Argued Feb. 20, 1991Decided May 30, 1991500 U.S. 415SyllabusPetitioner Mu'Min, a Virginia inmate serving time for first-degree murder, committed another murder while out of prison on work detail. The case engendered substantial publicity in the local news media. The trial judge denied his motion for individual voir dire and refused to ask any of his proposed questions relating to the content of news items that potential jurors might have seen or read. Initially, the judge questioned the prospective jurors as a group, asking four separate questions about the effect on them of pretrial publicity or information about the case obtained by other means. One juror who admitted to having formed a belief as to Mu'Min's guilt was excused for cause. The judge then conducted further voir dire in panels of four, and each time a juror indicated that he had acquired knowledge about the case from outside sources, he was asked whether he had formed an opinion. One juror who equivocated as to her impartiality was excused by the judge sua sponte, and several others were excused for various reasons. Although 8 of the 12 eventually sworn admitted that they had read or heard something about the case, none indicated that they had formed an opinion based on the outside information, or would be biased in any way. The jury found Mu'Min guilty of capital murder, and the judge sentenced him to death. The Supreme Court of Virginia affirmed, finding that, while a criminal defendant may properly ask on voir dire whether a juror has previously acquired any information about the case, the defendant does not have a constitutional right to explore the content of the acquired information, but is only entitled to know whether the juror can remain impartial in light of the previously obtained information.Held: The trial judge's refusal to question prospective jurors about the specific contents of the news reports to which they had been exposed did not violate Mu'Min's Sixth Amendment right to an impartial jury or his right to due process under the Fourteenth Amendment. Pp. 500 U. S. 422-432.(a) This Court's cases have stressed the wide discretion granted to trial courts in conducting voir dire in the area of pretrial publicity and in other areas that might tend to show juror bias. For example, in holding that a trial court's voir dire questioning must "cover the subject" of possible juror racial bias, Aldridge v. United States, 283 U. S. 308, 283 U. S. 311, the Court was careful not to specify the particulars by which this could be done. Pp. 500 U. S. 422-424. Page 500 U. S. 416(b) Mu'Min's assertion that voir dire must do more than merely "cover the subject" of pretrial publicity is not persuasive. Although precise inquiries about the contents of any news reports that a potential juror has read might reveal a sense of the juror's general outlook on life that would be of some use in exercising peremptory challenges, this benefit cannot be a basis for making "content" questions about pretrial publicity a constitutional requirement, since peremptory challenges are not required by the Constitution. Ross v. Oklahoma, 487 U. S. 81, 487 U. S. 88. Moreover, although content questions might be helpful in assessing whether a juror is impartial, such questions are constitutionally compelled only if the trial court's failure to ask them renders the defendant's trial fundamentally unfair. See Murphy v. Florida, 421 U. S. 794, 421 U. S. 799. Furthermore, contrary to the situation in Aldridge, supra, 283 U.S. at 283 U. S. 311-313, there is no judicial consensus, or even weight of authority, favoring Mu'Min's position. Even the Federal Courts of Appeals that have required content inquiries have not expressly done so on constitutional grounds. Pp. 500 U. S. 424-427.(c) Mu'Min misplaces his reliance on Irvin v. Dowd, 366 U. S. 717, in which the Court held that pretrial publicity in connection with a capital trial had so tainted the particular jury pool that the defendant was entitled as a matter of federal constitutional law to a change of venue. That case did not deal with any constitutional requirement of voir dire inquiry, and it is not clear from the Court's opinion how extensive an inquiry the trial court made. Moreover, the pretrial publicity here, although substantial, was not nearly as damaging or extensive as that found to exist in Irvin. While adverse pretrial publicity can create such a presumption of prejudice that the jurors' claims that they can be impartial should not be believed, Patton v. Yount, 467 U. S. 1025, 467 U. S. 1031, this is not such a case. Pp. 500 U. S. 427-430.(d) Mu'Min also misplaces his reliance on the American Bar Association's Standards For Criminal Justice, which require interrogation of each juror individually with respect to "what [he] has read and heard about the case," "[i]f there is a substantial possibility that [he] will be ineligible to serve because of exposure to potentially prejudicial material." These standards leave to the trial court the initial determination of whether there is such a substantial possibility; are based on a substantive for-cause eligibility standard that is stricter than the impartiality standard required by the Constitution, see Patton, supra, 467 U.S. at 467 U. S. 1035; and have not commended themselves to a majority of the courts that have considered the question. Pp. 500 U. S. 430-431.(e) The two-part voir dire examination conducted by the trial court in this case was by no means perfunctory, and adequately covered the subject of possible bias by pretrial publicity. P. 500 U. S. 431-432.239 Va. 433, 389 S.E.2d 886, affirmed. Page 500 U. S. 417REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and SOUTER, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, 500 U. S. 432. MARSHALL, J., filed a dissenting opinion, in all but Part IV of which BLACKMUN and STEVENS, JJ., joined, post, p. 500 U. S. 433. KENNEDY, J., filed a dissenting opinion, post, p. 500 U. S. 448.

1982_81-896

JUSTICE WHITE delivered the opinion of the Court.Perry Education Association is the duly elected exclusive bargaining representative for the teachers of the Metropolitan Page 460 U. S. 39 School District of Perry Township, Ind. A collective bargaining agreement with the Board of Education provided that Perry Education Association, but no other union, would have access to the interschool mail system and teacher mailboxes in the Perry Township schools. The issue in this case is whether the denial of similar access to the Perry Local Educators' Association, a rival teacher group, violates the First and Fourteenth Amendments.IThe Metropolitan School District of Perry Township, Ind., operates a public school system of 13 separate schools. Each school building contains a set of mailboxes for the teachers. Interschool delivery by school employees permits messages to be delivered rapidly to teachers in the District. [Footnote 1] The primary function of this internal mail system is to transmit official messages among the teachers and between the teachers and the school administration. In addition, teachers use the system to send personal messages, and individual school building principals have allowed delivery of messages from various private organizations. [Footnote 2]Prior to 1977, both the Perry Education Association (PEA) and the Perry Local Educators' Association (PLEA) represented teachers in the School District, and apparently had equal access to the interschool mail system. In 1977, PLEA Page 460 U. S. 40 challenged PEA's status as de facto bargaining representative for the Perry Township teachers by filing an election petition with the Indiana Education Employment Relations Board (Board). PEA won the election and was certified as the exclusive representative, as provided by Indiana law. Ind.Code § 20-7.5-1-2(1) (1982).The Board permits a school district to provide access to communication facilities to the union selected for the discharge of the exclusive representative duties of representing the bargaining unit and its individual members without having to provide equal access to rival unions. [Footnote 3] Following the election, PEA and the School District negotiated a labor contract in which the School Board gave PEA "access to teachers' mailboxes in which to insert material" and the right to use the interschool mail delivery system to the extent that the School District incurred no extra expense by such use. The labor agreement noted that these access rights were being accorded to PEA "acting as the representative of the teachers," and went on to stipulate that these access rights shall not be granted to any other "school employee organization" -- a term of art defined by Indiana law to mean"any organization which has school employees as members and one of whose primary purposes is representing school employees Page 460 U. S. 41 in dealing with their school employer. [Footnote 4]"The PEA contract with these provisions was renewed in 1980, and is presently in force.The exclusive-access policy applies only to use of the mailboxes and school mail system. PLEA is not prevented from using other school facilities to communicate with teachers. PLEA may post notices on school bulletin boards; may hold meetings on school property after school hours; and may, with approval of the building principals, make announcements on the public address system. Of course, PLEA also may communicate with teachers by word of mouth, telephone, or the United States mail. Moreover, under Indiana law, the preferential access of the bargaining agent may continue only while its status as exclusive representative is insulated from challenge. Ind.Code § 20-7.5-1-10(c)(4) (1982). While a representation contest is in progress, unions must be afforded equal access to such communication facilities.PLEA and two of its members filed this action under 42 U.S.C. § 1983 against PEA and individual members of the Perry Township School Board. Plaintiffs contended that PEA's preferential access to the internal mail system violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. They sought injunctive and declaratory relief and damages. Upon cross-motions for summary judgment, the District Court entered judgment for the defendants. Perry Local Educators' Assn. v. Hohlt, IP 79-189-C (SD Ind., Feb. 25, 1980).The Court of Appeals for the Seventh Circuit reversed. Perry Local Educators' Assn. v. Hohlt, 652 F.2d 1286 (1981). The court held that, once the School District "opens its internal mail system to PEA but denies it to PLEA, it violates both the Equal Protection Clause and the First Amendment." Id. at 1290. It acknowledged that PEA had "legal duties to the teachers that PLEA does not have," but reasoned Page 460 U. S. 42 that,"[w]ithout an independent reason why equal access for other labor groups and individual teachers is undesirable, the special duties of the incumbent do not justify opening the system to the incumbent alone."Id. at 1300.PEA now seeks review of this judgment by way of appeal. We postponed consideration of our jurisdiction to the hearing of the case on the merits. 454 U.S. 1140 (1982).IIWe initially address the issue of our appellate jurisdiction over this case. PEA submits that its appeal is proper under 28 U.S.C. § 1254(2), which grants us appellate jurisdiction over cases in the federal courts of appeals in which a state statute has been held repugnant to the Constitution, treaties, or laws of the United States. We disagree. No state statute or other legislative action has been invalidated by the Court of Appeals. The Court of Appeals has held only that certain sections of the collective bargaining agreement entered into by the School District and PEA are constitutionally invalid; the Indiana statute authorizing such agreements is left untouched.PEA suggests, however, that, because a collective bargaining contract has "continuing force and [is] intended to be observed and applied in the future," it is in essence a legislative act, and, therefore a state statute within the meaning of § 1254(2). King Manufacturing Co. v. City Council of Augusta, 277 U. S. 100, 277 U. S. 104 (1928). In support of its position, PEA points to our decisions treating local ordinances and school board orders as state statutes for § 1254(2) purposes, Doran v. Salem Inn, Inc., 422 U. S. 922, 422 U. S. 927, n. 2 (1975); Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 (1948); Hamilton v. Regents of Univ. of Cal., 293 U. S. 245, 293 U. S. 257-258 (1934). In these cases, however, legislative action was involved -- the unilateral promulgation of a rule with continuing legal effect. Unlike a local ordinance or even a school board rule, a collective bargaining agreement is not Page 460 U. S. 43 unilaterally adopted by a lawmaking body; it emerges from negotiation and requires the approval of both parties to the agreement. Not every government action which has the effect of law is legislative action. We have previously emphasized that statutes authorizing appeals are to be strictly construed, Fornaris v. Ridge Tool Co., 400 U. S. 41, 400 U. S. 42, n. 1 (1970), and in light of that policy, we do not find that § 1254(2) extends to cover this case. [Footnote 5] We therefore dismiss the appeal for want of jurisdiction. See, e.g., Lockwood v. Jefferson Area Teachers Assn., 459 U.S. 804 (1982) (appeal dismissed for want of jurisdiction and certiorari denied).Nevertheless, the decision below is subject to our review by writ of certiorari. 28 U.S.C. § 2103; Palmore v. United States, 411 U. S. 389, 411 U. S. 396 (1973). The constitutional issues presented are important, and the decision below conflicts with the judgment of other federal and state courts. [Footnote 6] Therefore, Page 460 U. S. 44 regarding PEA's jurisdictional statement as a petition for a writ of certiorari, we grant certiorari.IIIThe primary question presented is whether the First Amendment, applicable to the States by virtue of the Fourteenth Amendment, is violated when a union that has been elected by public school teachers as their exclusive bargaining representative is granted access to certain means of communication, while such access is denied to a rival union. There is no question that constitutional interests are implicated by denying PLEA use of the interschool mail system."It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."Tinker v. Des Moines School District, 393 U. S. 503, 393 U. S. 506 (1969); Healy v. James, 408 U. S. 169 (1972). The First Amendment's guarantee of free speech applies to teacher's mailboxes as surely as it does elsewhere within the school, Tinker v. Des Moines School District, supra, and on sidewalks outside, Police Department of Chicago v. Mosley, 408 U. S. 92 (1972). But this is not to say that the First Amendment requires equivalent access to all parts of a school building in which some form of communicative activity occurs."[N]owhere [have we] suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for . . . unlimited expressive purposes."Grayned v. City of Rockford, 408 U. S. 104, 408 U. S. 117-118 (1972). The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue. Page 460 U. S. 45AIn places which, by long tradition or by government fiat, have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks, which"have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."Hague v. CIO, 307 U. S. 496, 307 U. S. 515 (1939). In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion, it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Carey v. Brown, 447 U. S. 455, 447 U. S. 461 (1980). The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. United States Postal Service v. Council of Greenburgh Civic Assns., 453 U. S. 114, 453 U. S. 132 (1981); Consolidated Edison Co. v. Public Service Comm'n, 447 U. S. 530, 447 U. S. 535-536 (1980); Grayned v. City of Rockford, supra, at 408 U. S. 115; Cantwell v. Connecticut, 310 U. S. 296 (1940); Schneider v. State, 308 U. S. 147 (1939).A second category consists of public property which the State has opened for use by the public as a place for expressive activity. The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Widmar v. Vincent, 454 U. S. 263 (1981) (university meeting facilities); City of Madison Joint School District v. Wisconsin Employment Relations Comm'n, 429 U. S. 167 (1976) (school board meeting); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975) (municipal theater). [Footnote 7] Page 460 U. S. 46 Although a State is not required to indefinitely retain the open character of the facility, as long as it does so, it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Widmar v. Vincent, supra, at 454 U. S. 269-270.Public property which is not, by tradition or designation, a forum for public communication is governed by different standards. We have recognized that the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Council of Greenburgh Civic Assns., supra, at 453 U. S. 129. In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. 453 U.S. at 453 U. S. 131, n. 7. As we have stated on several occasions, ""[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated."'" Id. at 453 U. S. 129-130, quoting Greer v. Spock, 424 U. S. 828, 424 U. S. 836 (1976), in turn quoting Adderley v. Florida, 385 U. S. 39, 385 U. S. 47 (1966).The school mail facilities at issue here fall within this third category. The Court of Appeals recognized that Perry School District's interschool mail system is not a traditional public forum:"We do not hold that a school's internal mail system is a public forum in the sense that a school board may not close it to all but official business if it chooses."652 F.2d at 1301. On this point the parties agree. [Footnote 8] Nor do the parties dispute that, as the District Court observed, the Page 460 U. S. 47 "normal and intended function [of the school mail facilities] is to facilitate internal communication of school-related matters to the teachers." Perry Local Educators' Assn. v. Hohlt, IP 79-189-C (SD Ind., Feb. 25, 1980), P. 4. The internal mail system, at least by policy, is not held open to the general public. It is, instead, PLEA's position that the school mail facilities have become a "limited public forum" from which it may not be excluded because of the periodic use of the system by private non-school-connected groups, and PLEA's own unrestricted access to the system prior to PEA's certification as exclusive representative.Neither of these arguments is persuasive. The use of the internal school mail by groups not affiliated with the schools is no doubt a relevant consideration. If, by policy or by practice, the Perry School District has opened its mail system for indiscriminate use by the general public, then PLEA could justifiably argue a public forum has been created. This, however, is not the case. As the case comes before us, there is no indication in the record that the school mailboxes and interschool delivery system are open for use by the general public. Permission to use the system to communicate with teachers must be secured from the individual building principal. There is no court finding or evidence in the record which demonstrates that this permission has been granted as a matter of course to all who seek to distribute material. We can only conclude that the schools do allow some outside organizations such as the YMCA, Cub Scouts, and other civic and church organizations to use the facilities. This type of selective access does not transform government property into a public forum. In Greer v. Spock, supra, at 424 U. S. 838, n. 10, the fact that other civilian speakers and entertainers had sometimes been invited to appear at Fort Dix did not convert the military base into a public forum. And in Lehman v. City of Shaker Heights, 418 U. S. 298 (1974) (opinion of BLACKMUN, J.), a plurality of the Court concluded that a city transit system's rental of space in its vehicles for commercial advertising did not require it to accept partisan political advertising. Page 460 U. S. 48Moreover, even if we assume that, by granting access to the Cub Scouts, YMCA's, and parochial schools, the School District has created a "limited" public forum, the constitutional right of access would, in any event, extend only to other entities of similar character. While the school mail facilities thus might be a forum generally open for use by the Girl Scouts, the local boys' club, and other organizations that engage in activities of interest and educational relevance to students, they would not, as a consequence, be open to an organization such as PLEA, which is concerned with the terms and conditions of teacher employment.PLEA also points to its ability to use the school mailboxes and delivery system on an equal footing with PEA prior to the collective bargaining agreement signed in 1978. Its argument appears to be that the access policy in effect at that time converted the school mail facilities into a limited public forum generally open for use by employee organizations, and that once this occurred, exclusions of employee organizations thereafter must be judged by the constitutional standard applicable to public forums. The fallacy in the argument is that it is not the forum, but PLEA itself, which has changed. Prior to 1977, there was no exclusive representative for the Perry School District teachers. PEA and PLEA each represented its own members. Therefore the School District's policy of allowing both organizations to use the school mail facilities simply reflected the fact that both unions represented the teachers and had legitimate reasons for use of the system. PLEA's previous access was consistent with the School District's preservation of the facilities for school-related business, and did not constitute creation of a public forum in any broader sense.Because the school mail system is not a public forum, the School District had no "constitutional obligation per se to let any organization use the school mail boxes." Connecticut State Federation of Teachers v. Board of Ed. Members, 538 F.2d 471, 481 (CA2 1976). In the Court of Appeals' view, however, the access policy adopted by the Perry schools favors Page 460 U. S. 49 a particular viewpoint, that of PEA, on labor relations, and consequently must be strictly scrutinized regardless of whether a public forum is involved. There is, however, no indication that the School Board intended to discourage one viewpoint and advance another. We believe it is more accurate to characterize the access policy as based on the status of the respective unions, rather than their views. Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. These distinctions may be impermissible in a public forum, but are inherent and inescapable in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the property. The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves. [Footnote 9] Page 460 U. S. 50BThe differential access provided PEA and PLEA is reasonable, because it is wholly consistent with the District's legitimate interest in ""preserv[ing] the property . . . for the use Page 460 U. S. 51 to which it is lawfully dedicated."'" United States Postal Service, 453 U.S. at 453 U. S. 129-130. Use of school mail facilities enables PEA to perform effectively its obligations as exclusive representative of all Perry Township teachers. [Footnote 10] Conversely, PLEA does not have any official responsibility in connection with the School District, and need not be entitled to the same rights of access to school mailboxes. We observe that providing exclusive access to recognized bargaining representatives is a permissible labor practice in the public sector. [Footnote 11] We have previously noted that the"designation Page 460 U. S. 52 of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones."Abood v. Detroit Bd. of Ed., 431 U. S. 209, 431 U. S. 221 (1977). Moreover, exclusion of the rival union may reasonably be considered a means of insuring labor peace within the schools. The policy "serves to prevent the District's schools from becoming a battlefield for inter-union squabbles." [Footnote 12]The Court of Appeals accorded little or no weight to PEA's special responsibilities. In its view, these responsibilities, while justifying PEA's access, did not justify denying equal access to PLEA. The Court of Appeals would have been Page 460 U. S. 53 correct if a public forum were involved here. But the internal mail system is not a public forum. As we have already stressed, when government property is not dedicated to open communication, the government may -- without further justification -- restrict use to those who participate in the forum's official business. [Footnote 13]Finally, the reasonableness of the limitations on PLEA's access to the school mail system is also supported by the substantial alternative channels that remain open for union-teacher communication to take place. These means range from bulletin boards to meeting facilities to the United States mail. During election periods, PLEA is assured of equal access to all modes of communication. There is no showing here that PLEA's ability to communicate with teachers is seriously impinged by the restricted access to the internal mail system. The variety and type of alternative modes of access present here compare favorably with those in other nonpublic Page 460 U. S. 54 forum cases where we have upheld restrictions on access. See, e.g., Greer v. Spock, 424 U.S. at 424 U. S. 839 (servicemen free to attend political rallies off base); Pell v. Procunier, 417 U. S. 817, 417 U. S. 827-828 (1974) (prison inmates may communicate with media by mail and through visitors).IVThe Court of Appeals also held that the differential access provided the rival unions constituted impermissible content discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. We have rejected this contention when cast as a First Amendment argument, and it fares no better in equal protection garb. As we have explained above, PLEA did not have a First Amendment or other right of access to the interschool mail system. The grant of such access to PEA, therefore, does not burden a fundamental right of PLEA. Thus, the decision to grant such privileges to PEA need not be tested by the strict scrutiny applied when government action impinges upon a fundamental right protected by the Constitution. See San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 411 U. S. 17 (1973). The School District's policy need only rationally further a legitimate state purpose. That purpose is clearly found in the special responsibilities of an exclusive bargaining representative. See supra at 460 U. S. 51-52.The Seventh Circuit and PLEA rely on Police Department of Chicago v. Mosley, 408 U. S. 92 (1972), and Carey v. Brown, 447 U. S. 455 (1980). In Mosley and Carey, we struck down prohibitions on peaceful picketing in a public forum. In Mosley, the city of Chicago permitted peaceful picketing on the subject of a school's labor-management dispute, but prohibited other picketing in the immediate vicinity of the school. In Carey, the challenged state statute barred all picketing of residences and dwellings except the peaceful picketing of a place of employment involved in a labor dispute. In both cases, we found the distinction between classes of speech violative of the Equal Protection Clause. Page 460 U. S. 55 The key to those decisions, however, was the presence of a public forum. [Footnote 14] In a public forum, by definition, all parties have a constitutional right of access, and the State must demonstrate compelling reasons for restricting access to a single class of speakers, a single viewpoint, or a single subject.When speakers and subjects are similarly situated, the State may not pick and choose. Conversely on government property that has not been made a public forum, not all speech is equally situated, and the State may draw distinctions which relate to the special purpose for which the property is used. As we have explained above, for a school mail facility, the difference in status between the exclusive bargaining representative and its rival is such a distinction.VThe Court of Appeals invalidated the limited privileges PEA negotiated as the bargaining voice of the Perry Township teachers by misapplying our cases that have dealt with the rights of free expression on streets, parks, and other fora generally open for assembly and debate. Virtually every other court to consider this type of exclusive access policy has upheld it as constitutional, see n 6, supra, and today, so do we. The judgment of the Court of Appeals isReversed

U.S. Supreme CourtPerry Educ. Ass'n v. Perry Educators' Ass'n, 460 U.S. 37 (1983)Perry Education Association v. Perry Local Educators' AssociationNo. 81-896Argued October 13, 1982Decided February 23, 1983460 U.S. 37SyllabusUnder a collective bargaining agreement between the Board of Education of Perry Township, Ind., and Perry Education Association (PEA) as the exclusive bargaining representative for the School District's teachers, PEA was granted access to the interschool mail system and teacher mailboxes in the Perry Township schools. The bargaining agreement also provided that access rights to the mail facilities were not available to any rival union, such as Perry Local Educators' Association (PLEA). PLEA and two of its members filed suit in Federal District Court against PEA and individual members of the School Board, contending that PEA's preferential access to the internal mail system violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The court entered summary judgment for the defendants, but the Court of Appeals reversed.Held:1. The appeal is not proper under 28 U.S.C. § 1254(2), which grants this Court appellate jurisdiction over federal court of appeals' decisions holding a state statute repugnant to the Federal Constitution. Here, only certain provisions of the collective bargaining agreement, not the Indiana statute authorizing such agreements, were held to be constitutionally invalid, and the bargaining agreement cannot be considered to be in essence a legislative act. However, regarding the jurisdictional statement as a petition for a writ of certiorari, certiorari is granted because the constitutional issues presented are important and the decision below conflicts with the judgments of other federal and state courts. Pp. 460 U. S. 42-44.2. The First Amendment is not violated by the preferential access to the interschool mail system granted to PEA. Pp. 460 U. S. 44-54.(a) With respect to public property that is not, by tradition or government designation, a forum for public communication, a State may reserve the use of the property for its intended purposes, communicative or otherwise, as long as a regulation on speech is reasonable, and not an effort to suppress expression merely because public officials oppose the speaker's view. The school mail facilities were not a "limited public forum" merely because the system had been opened for periodic use by Page 460 U. S. 38 civic and church organizations, or because PLEA was allowed to use the school mail facilities on an equal footing with PEA prior to PEA's certification as the teachers' exclusive bargaining representative. Pp. 460 U. S. 45-49.(b) The differential access provided PEA and PLEA is reasonable, because it is wholly consistent with the School District's legitimate interest in preserving the property for the use to which it was lawfully dedicated. Use of school mail facilities enables PEA to perform effectively its statutory obligations as exclusive representative of all Perry Township teachers. Conversely, PLEA does not have any official responsibility in connection with the School District, and need not be entitled to the same rights of access to school mailboxes. The reasonableness of the limitations on PLEA's access to the school mail system is also supported by the substantial alternative channels that remain open for union-teacher communication to take place. Moreover, under Indiana law, PLEA is assured of equal access to all modes of communication while a representation election is in progress. Pp. 460 U. S. 50-54.3. The differential access provided the rival unions does not constitute impermissible content discrimination in violation of the Equal Protection Clause. Since the grant of exclusive access to PEA does not burden a fundamental right of PLEA, the School District's policy need only rationally further a legitimate state purpose. That purpose is clearly found in the special responsibilities of an exclusive bargaining representative. Police Department of Chicago v. Mosley, 408 U. S. 92, and Carey v. Brown, 447 U. S. 455, distinguished. Pp. 460 U. S. 54-55.Appeal dismissed and certiorari granted; 652 F.2d 1286, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C.J. and BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, POWELL, and STEVENS, JJ., joined, post, p. 460 U. S. 55.

1985_84-1973

JUSTICE O'CONNOR delivered the opinion of the Court.Petitioner, Three Affiliated Tribes of the Fort Berthold Reservation, sought to sue respondent, Wold Engineering, P.C. (hereafter respondent), in state court for negligence and breach of contract. The North Dakota Supreme Court held that Chapter 27-19 of the North Dakota Century Code (1974) disclaimed the unconditional state court civil jurisdiction North Dakota had previously extended to tribal Indians suing non-Indians in state court. It ruled that, under Chapter 27-19, petitioner could not avail itself of state court jurisdiction unless it consented to waive its sovereign immunity and to have any civil disputes in state court to which it is a party adjudicated under state law. 364 N.W.2d 98 (1985). The question presented is whether Chapter 27-19, as construed by the North Dakota Supreme Court, is repugnant to the Federal Constitution or is preempted by federal Indian law.IThis is the second time this Court has been called upon to address this jurisdictional controversy. See Three Affiliated Tribes v. Wold Engineering, 467 U. S. 138 (1984) (Three Tribes I). Because the facts and procedural history of the litigation were set forth in some detail in Three Tribes I, our present recitation will be brief. Page 476 U. S. 879Historically, Indian territories were generally deemed beyond the legislative and judicial jurisdiction of the state governments. See id. at 467 U. S. 142. This restriction was reflected in the federal statute which admitted North Dakota to the Union, Enabling Act of Feb. 22, 1889, § 4, cl. 2, 25 Stat. 677, and was embodied in the form of jurisdictional disclaimers in North Dakota's original Constitution. See N. D. Const., Art. XVI, § 203, cl. 2 (1889). The preexisting federal restrictions on state jurisdiction over Indian country were largely eliminated, however, in 1953 with Congress' enactment of the Act of Aug. 15, 1953, 67 Stat. 588, as amended, 28 U.S.C. § 1360, which is commonly known as Pub.L. 280. Public Law 280 gave federal consent to the assumption of state civil and criminal jurisdiction over Indian country, and provided the procedures by which such an assumption could be made. See Three Tribes I, supra at 467 U. S. 143. As originally enacted, Pub.L. 280 did not require the States to obtain the consent of affected Indian tribes before assuming jurisdiction over them, but Title IV of the Civil Rights Act of 1963 amended Pub.L. 280 to require that all subsequent assertions of jurisdiction be preceded by tribal consent. Pub.L. 90-284, §§ 401, 402, 406, 82 Stat. 78-80, codified at 25 U.S.C. §§ 1321, 1322, 1326.As this Court explained in Three Tribes I:"Even before North Dakota moved to amend its Constitution and assume full jurisdiction under Pub.L. 280, the North Dakota Supreme Court had taken an expansive view of the scope of state court jurisdiction over Indians in Indian country. In 1957, the court held [in Vermillion v. Spotted Elk, 85 N.W.2d 432 (1957)] that the existing jurisdictional disclaimers in the Enabling Act and the State's Constitution foreclosed civil jurisdiction over Indian country only in cases involving interests in Indian lands themselves."467 U.S. at 467 U. S. 143-144. Although Vermillion v. Spotted Elk, 85 N.W.2d 432 (1957), was decided after the enactment of Pub.L. 280, the North Page 476 U. S. 880 Dakota Supreme Court made clear that it was confirming preexisting jurisdiction, rather than establishing a previously unavailable jurisdictional category. Id. at 435-436. See also Three Tribes I, supra, at 467 U. S. 150, n. 9.That part of Vermillion that recognized jurisdiction over non-Indians' claims against Indians impermissibly intruded on tribal self-government, and thus could not be sustained. 467 U.S. at 467 U. S. 148. See also Fisher v. District Court, 424 U. S. 382 (1976); Williams v. Lee, 358 U. S. 217 (1959). But, as this Court in Three Tribes I affirmed, North Dakota's recognition of jurisdiction over the claims of Indian plaintiffs against non-Indian defendants was lawful because such jurisdiction did not interfere with the right of tribal Indians to govern themselves, and was not subject to Pub.L. 280's procedural requirements, since the jurisdiction was lawfully assumed prior to that enactment. See 467 U.S. at 467 U. S. 148-149, 467 U. S. 151, n. 11.In 1958, North Dakota amended its Constitution to authorize its legislature to provide by statute for the acceptance of jurisdiction over Indian country, see N. D. Const., Art. XIII, § 1, cl. 2, and in 1963, the North Dakota Legislature enacted Chapter 27-19. That Chapter provides, in pertinent part:"In accordance with the provisions of Public Law 280 . . . and [the amended] North Dakota constitution, jurisdiction of the state of North Dakota shall be extended over all civil claims for relief which arise on an Indian reservation upon acceptance by Indian citizens in a manner provided by this chapter. Upon acceptance the jurisdiction of the state is to the same extent that the state has jurisdiction over other civil claims for relief, and those civil laws of this state that are of general application to private property have the same force and effect within such Indian reservation or Indian country as they have elsewhere within this state."N.D.Cent.Code § 27-19-01 (Supp.1985). Page 476 U. S. 881In subsequent cases, the North Dakota Supreme Court read this provision to "completely disclaim" the state jurisdiction recognized in Vermillion in cases in which the defendant was an Indian, absent tribal consent to jurisdiction as provided by statute. See, e.g., In re Whiteshield, 124 N.W.2d 694 (1963). However, until the instant suit, the court never squarely held that Chapter 27-19 also disclaimed the jurisdiction Vermillion lawfully recognized over cases in which an Indian sued a non-Indian in state court for a claim arising in Indian country. See Three Tribes I, 467 U.S. at 467 U. S. 144-145.Petitioner filed the instant suit against respondent in state court for negligence and breach of contract in connection with respondent's construction of a water supply system on petitioner's reservation. At the time the suit was filed, petitioner's tribal court did not have jurisdiction over such claims. After counterclaiming for petitioner's alleged failure to make payments on the system, respondent moved to dismiss petitioner's complaint, arguing that the state court had no jurisdiction because petitioner has never consented to state court jurisdiction over the Fort Berthold Reservation under Chapter 27-19. The trial court dismissed the suit for lack of jurisdiction, and the North Dakota Supreme Court affirmed the dismissal on appeal. 321 N.W.2d 510 (1982).In so doing, the North Dakota Supreme Court held that any residuary jurisdiction the North Dakota courts possessed under Vermillion over suits by an Indian against a non-Indian arising in Indian country was "totally disclaimed" when the North Dakota Legislature, "[u]nder the authority of Public Law 280," instituted the consent requirement of Chapter 27-19. 321 N.W.2d at 511-512. It concluded that"we have no jurisdiction over civil causes of action arising within the exterior boundaries of an Indian reservation, unless the Indian citizens of the reservation vote to accept jurisdiction."Id. at 512. The court also rejected petitioner's federal and state constitutional challenges, relying in part on the argument that the discrimination against Indian litigants Page 476 U. S. 882 embodied in Chapter 27-19 was authorized by Pub.L. 280, and was therefore insulated, under Washington v. Yakima Indian Nation, 439 U. S. 463 (1979), from heightened scrutiny. See 321 N.W.2d at 512-513.This Court granted certiorari. 461 U.S. 904 (1983). We held that federal law did not preclude the state court from asserting jurisdiction over petitioner's claim. In particular, we ruled that Pub.L. 280 neither required nor authorized North Dakota to disclaim the jurisdiction it had lawfully exercised over the claims of Indian plaintiffs against non-Indian defendants prior to the enactment of Pub.L. 280. See Three Tribes I, 467 U.S. at 467 U. S. 150. Because the North Dakota Supreme Court's interpretation of Chapter 27-19 and its accompanying constitutional analysis appeared to rest on a possible misunderstanding of Pub.L. 280, this Court vacated the judgment and remanded the case to allow the North Dakota court to reconsider the jurisdictional questions in light of the proper interpretation of the governing federal statute. Id. at 467 U. S. 141.On remand, the North Dakota Supreme Court held that Chapter 27-19 terminated any residuary jurisdiction that may have existed over claims arising in Indian country brought by tribal Indians against non-Indians in state court. 364 N.W.2d at 104. It further held that state law barred petitioner from maintaining its suit in state court absent its waiver of its sovereign immunity in accordance with the statutory procedures. Id. at 103-104. Finally, the court rejected petitioner's due process and equal protection challenges. It stated that petitioner had not been denied a due process right to access to the courts by action of the State, reasoning that it was the Indian people who had deprived themselves of access to state jurisdiction in declining to avail themselves of the State's jurisdictional offer by waiving their sovereign immunity. See id. at 106. The North Dakota court then ruled that the jurisdictional disclaimer did not violate the Equal Protection Clause because, by virtue of the Page 476 U. S. 883 consent provision, "[t]he statute does not treat [the Tribe] less than equal, it treats them more than equal." Id. at 107.We granted certiorari to examine petitioner's claims that Chapter 27-19 violates the Federal Constitution, and is preempted by federal Indian law. Although respondent at no time objected to our consideration of the federal preemption issue, and in fact briefed it on the merits, our review of the proceedings below indicates that this question was not explicitly raised before, and was not decided by the North Dakota Supreme Court. We have recognized that, in such circumstances, there is a "weighty presumption against review." Heath v. Alabama, 474 U. S. 82, 474 U. S. 87 (1985). See also Illinois v. Gates, 462 U. S. 213, 462 U. S. 218-222 (1983). We believe, however, that this presumption has been overcome in this instance by a combination of circumstances.First, respondent's failure to raise any challenge to our consideration of the preemption issue, cf. Oklahoma City v. Tuttle, 471 U. S. 808, 471 U. S. 815-816 (1985), and its apparent willingness to have the question decided, argues for review. Second, this case has already been sent back to the North Dakota Supreme Court once, and we are reluctant to further burden that court by resolving less than all the federal questions addressed by the parties. Since we have twice had the benefit of the Supreme Court of North Dakota's reasoning on closely aligned issues, we do not believe that our consideration of the federal preemption issue is a disservice to that court or to the litigants, or impairs our informed decision of the issue.Because we believe that the North Dakota law is preempted insofar as it is applied to disclaim preexisting jurisdiction over suits by tribal plaintiffs against non-Indians for which there is no other forum, absent the Tribe's waiver of .its sovereign immunity and consent to the application of state civil law in all cases to which it is a party, we reverse. Page 476 U. S. 884IIOur cases reveal a"'trend . . . away from the idea of inherent Indian sovereignty as a[n independent] bar to state jurisdiction and toward reliance on federal preemption.'"Rice v. Rehner, 463 U. S. 713, 463 U. S. 718 (1983) (quoting McClanahan v. Arizona State Tax Comm'n, 411 U. S. 164, 411 U. S. 172 (1973) (footnote omitted)). Yet considerations of tribal sovereignty, and the federal interests in promoting Indian self-governance and autonomy, if not of themselves sufficient to "preempt" state regulation, nevertheless form an important backdrop against which the applicable treaties and federal statutes must be read. See, e.g., New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 462 U. S. 334 (1983); Rice v. Rehner, supra, at 463 U. S. 718-719. Accordingly, we have formulated a comprehensive preemption inquiry in the Indian law context which examines not only the congressional plan, but also"the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law."White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 448 U. S. 145 (1980). In the instant case, this preemption inquiry yields the conclusion that the legislative plan embodied in Pub.L. 280 forecloses North Dakota from disclaiming jurisdiction over petitioner's suit, and further, that the state interest advanced by the North Dakota jurisdictional scheme in this context is overshadowed by longstanding federal and tribal interests.APublic Law 280 represents the primary expression of federal policy governing the assumption by States of civil and criminal jurisdiction over the Indian Nations. The Act was the result of "comprehensive and detailed congressional scrutiny," Kennerly v. District Court of Montana, 423 U. S. 423, 423 U. S. 424, n. 1, 427 (1971), and was intended to replace the ad hoc regulation of state jurisdiction over Indian country with general legislation, providing "for all affected States to come Page 476 U. S. 885 within its terms." S.Rep. No. 699, 83d Cong., 1st Sess., 5 (1953). See also Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 UCLA L.Rev. 535, 540-544 (1975). In examining the effect of comprehensive legislation governing Indian matters such as this,"our cases have rejected a narrow focus on congressional intent to preempt state law as the sole touchstone. They have also rejected the proposition that preemption requires 'an express congressional statement to that effect.'"New Mexico v. Mescalero Apache Tribe, supra, at 462 U. S. 334 (quoting White Mountain Apache Tribe v. Bracker, supra, at 448 U. S. 144) (footnote omitted). See also Rice v. Rehner, supra at 463 U. S. 719. Rather, we have found that, where a detailed federal regulatory scheme exists, and where its general thrust will be impaired by incompatible state action, that state action, without more, may be ruled preempted by federal law. See, e.g., Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U. S. 685 (1965).Given the comprehensiveness of the federal regulation in this area of Indian law, our conclusion in Three Tribes I that Congress generally intended to authorize the assumption, not the disclaimer, of state jurisdiction over Indian country is persuasive evidence that the instant disclaimer conflicts with the federal scheme. See 467 U.S. at 467 U. S. 150. But we need not rest upon this conclusion alone, for Congress' specific treatment of the retrocession of previously assumed jurisdiction permits no doubt that North Dakota's disclaimer is inconsistent with the requirements of Pub.L. 280.As originally enacted, Pub.L. 280 plainly contemplated that, if States chose to extend state court jurisdiction over causes of action arising in Indian country, they would be required to honor that commitment, for the Act made no provision for States to return any jurisdiction to the United States. See F. Cohen, Handbook of Federal Indian Law 370 (1982) (hereinafter Cohen). Congress' failure to provide for the retrocession of jurisdiction assumed by the States is fully Page 476 U. S. 886 consistent with the purposes underlying Pub.L. 280: promoting the gradual assimilation of Indians into the dominant American culture and easing the fiscal and administrative burden borne by the Federal Government by virtue of its control over Indian affairs. See Goldberg, supra, at 542-544. See also H.R.Rep. No. 848, 83d Cong., 1st Sess., 3, 6 (1953). Were States permitted, at their option and at any time, to retrocede all or part of the jurisdiction they had assumed and to leave Indians with no recourse for civil wrongs, the congressional plan of gradual but steady assimilation could be disrupted, and the divestment of federal dominance nullified.When Congress subsequently revisited the question of retrocession in the 1968 amendments, it provided that "[t]he United States is authorized to accept a retrocession by any State," 25 U.S.C. § 1323(a), but it specifically limited this authorization to the retrocession of jurisdiction assumed under Pub.L. 280 pursuant to the original 1953 version of the statute. See ibid. (permitting retrocession of jurisdiction "acquired by [the] State pursuant to the provisions of section 1162 of title 18, of the United States Code, section 1360 of title 28, of the United States Code, or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect prior to its repeal by subsection (b) of this section"). See also Exec.Order No. 11435, 3 CFR 754 (1966-1970 Comp.) (giving Secretary of the Interior discretionary authority to accept retrocession of jurisdiction by a State); Goldberg, supra, at 558-559. This retrocession provision apparently was added in response to Indian dissatisfaction with Pub.L. 280. See Cohen 370. In light of this congressional purpose, the fact that Congress did not provide for retrocession of jurisdiction lawfully assumed prior to the enactment of Pub.L. 280 or of jurisdiction assumed after 1968 cannot be attributed to mere oversight or inadvertence. Since Congress was motivated by a desire to shield the Indians from unwanted extensions of jurisdiction over them, there was no need to provide for Page 476 U. S. 887 retrocession in those circumstances because the previously assumed jurisdiction over Indian country was only lawful to the extent that it was consistent with Indian tribal sovereignty and self-government, see, e.g., Williams v. Lee, 358 U. S. 217 (1959), and the jurisdiction assumed after 1968 could be secured only upon the receipt of tribal consent. See 25 U.S.C. § 1321.North Dakota may not, and indeed has not attempted to, rely on § 1323(a) as authority for its disclaimer of jurisdiction over claims such as petitioner's, because it did not assume such jurisdiction under any of the provisions specified in § 1323(a), nor has the United States accepted the retrocession. We have previously enforced the procedural requirements and the jurisdictional provisions of Pub.L. 280 quite stringently, consistent with our understanding that the jurisdictional scheme embodied in that Act was the product of a wide-ranging and detailed congressional study. See, e.g., Kennerly v. District Court of Montana, 400 U.S. at 423 U. S. 427. See also Washington v. Yakima Indian Nation, 439 U.S. at 439 U. S. 484 ("the procedural requirements of Pub.L. 280 must be strictly followed"); McClanahan v. Arizona State Tax Comm'n, 411 U.S. at 411 U. S. 180. Accordingly, we conclude that, since North Dakota's disclaimer is not authorized by § 1323(a), it is barred by that section.In sum, because Pub.L. 280 was designed to extend the jurisdiction of the States over Indian country and to encourage state assumption of such jurisdiction, and because Congress specifically considered the issue of retrocession, but did not provide for disclaimers of jurisdiction lawfully acquired other than under Pub.L. 280 prior to 1968, we must conclude that such disclaimers cannot be reconciled with the congressional plan embodied in Pub.L. 280, and thus are preempted by it.BOur consideration of the State's interest in disclaiming the preexisting, unconditional jurisdiction extended to tribal Page 476 U. S. 888 Indians suing non-Indian defendants, and in replacing it with an extension of jurisdiction conditioned on the Tribe's waiver of its sovereign immunity and its agreement to the application of state law in all suits to which it is a party, reinforces our conclusion that Chapter 27-19 is inconsistent with federal law. Simply put, the state interest, as presently implemented, is unduly burdensome on the federal and tribal interests.As the North Dakota Supreme Court explained, Chapter 27-19 was originally designed as a unilateral assumption of jurisdiction over Indian country, which was intended to provide a means of enforcing contracts between Indians and non-Indians and a tribunal for trying tort actions, family law matters, and "many [other] types of actions too numerous to mention." 364 N.W.2d at 102, and n. 5. The North Dakota Legislature added the consent provision to Chapter 27-19 as a compromise to "accommodate the will of the Indian people." Id. at 103. Those Indians who opposed the assertion of state jurisdiction against them would not be subjected to it, absent consent, but neither would they be permitted to enjoy state jurisdiction as plaintiffs, absent consent to suit as defendants. See id. at 107. Certainly, the State's interest in requiring that all its citizens bear equally the burdens and the benefits of access to the courts is readily understandable. But here, federal interests exist which override this state interest.The federal interest in ensuring that all citizens have access to the courts is obviously a weighty one. See, e.g., California Motor Transport Co. v. Trucking Unlimited, 404 U. S. 508, 404 U. S. 510, 404 U. S. 513-514 (1972); Bill Johnson's Restaurants, Inc. v. NLRB, 461 U. S. 731, 461 U. S. 741, 461 U. S. 742-744 (1983). This Court and many state courts have long recognized that Indians share this interest in access to the courts, and that tribal autonomy and self-government are not impeded when a State allows an Indian to enter its court to seek relief against a non-Indian concerning a claim arising in Indian country. See, e.g., Page 476 U. S. 889 Three Tribes I, 467 U.S. at 467 U. S. 148, and n. 7 (citing authority). North Dakota conditions the Tribe's access to the courts on its waiver of its tribal sovereign immunity and agreement to the application of state civil law in all state court civil actions to which it is or may be a party. These conditions apply regardless of whether, as here, the Tribe has no other effective means of securing relief for civil wrongs. As the State concedes, even if the Tribe were to have access to tribal court to resolve civil controversies with non-Indians, it would be unable to enforce those judgments in state court; thus, the Tribe cannot be said to have a meaningful alternative to state adjudication by way of access to other tribunals in such cases. See Tr. of Oral Arg. 26, 27. Cf. Lohnes v. Cloud, 254 N.W.2d 430 (N. D.1977). Respondent argues that the Tribe is not truly deprived of access to the courts by the North Dakota jurisdictional scheme, because the Tribe could have unrestricted access to the State's courts by "merely" consenting to the statutory conditions. We conclude, however, that those statutory conditions may be met only at an unacceptably high price to tribal sovereignty, and thus operate to effectively bar the Tribe from the courts.The North Dakota jurisdictional scheme requires the Tribe to accept a potentially severe intrusion on the Indians' ability to govern themselves according to their own laws in order to regain their access to the state courts. The statute provides that"[t]he civil jurisdiction herein accepted and assumed [upon Indian consent] shall include but shall not be limited to the determination of parentage of children, termination of parental rights, commitments by county courts, guardianship, marriage contracts, and obligations for the support of spouse, children, or other dependents."N.D.Cent.Code § 27-19-08 (Supp.1985). Although these subjects clearly encompass areas of traditional tribal control, see Fisher v. District Court, 424 U.S. at 424 U. S. 388-389; United States v. Quiver, 241 U. S. 602 (1916), the North Dakota statute contemplates that state civil law will control in these areas. See Page 476 U. S. 890 § 27-19-01. Respondent argues that Chapter 27-19 safeguards tribal self-government by also providing that any tribal ordinance or custom"shall, if not inconsistent with the applicable civil law of this state, be given full force and effect in the determination of civil claims for relief pursuant to this section."§ 27-19-09. This provision plainly provides that state law will generally control, however, and will merely be supplemented by nonconflicting Indian ordinances or customs, even in cases that arise on the reservation, that involve only Indians, and that concern subjects which are within the jurisdiction of the tribal court.This result simply cannot be reconciled with Congress' jealous regard for Indian self-governance. See, e.g., New Mexico v. Mescalero Apache Tribe, 462 U.S. at 462 U. S. 334-335, and n. 17 ("[B]oth the tribes and the Federal Government are firmly committed to the goal of promoting tribal self-government, a goal embodied in numerous federal statutes"). See also Fisher v. District Court, supra, at 424 U. S. 388-389."A tribe's power to prescribe the conduct of tribal members has never been doubted, and our cases establish that, 'absent governing Acts of Congress,' a State may not act in a manner that 'infringe[s] on the right of reservation Indians to make their own laws and be ruled by them.'"New Mexico v. Mescalero Apache Tribe, supra, at 462 U. S. 332 (quoting McClanahan v. Arizona State Tax Comm'n, 411 U.S. at 411 U. S. 171-172).Chapter 27-19's requirement that the Tribe consent to suit in all civil causes of action before it may again gain access to state court as a plaintiff also serves to defeat the Tribe's federally conferred immunity from suit. The common law sovereign immunity possessed by the Tribe is a necessary corollary to Indian sovereignty and self-governance. See, e.g., Santa Clara Pueblo v. Martinez, 436 U. S. 49 (1978). Of course, because of the peculiar "quasi-sovereign" status of the Indian tribes, the Tribe's immunity is not congruent with that which the Federal Government, or the States, enjoy. United States v. United States Fidelity & Guaranty Co., 309 U. S. 506, Page 476 U. S. 891 309 U. S. 513 (1940). Cf. also McClanahan v. Arizona State Tax Comm'n, supra, at 411 U. S. 173. And this aspect of tribal sovereignty, like all others, is subject to plenary federal control and definition. See Santa Clara Pueblo v. Martinez, supra, at 436 U. S. 58. Nonetheless, in the absence of federal authorization, tribal immunity, like all aspects of tribal sovereignty, is privileged from diminution by the States.To be sure, not all conditions imposed on access to state courts which potentially affect tribal immunity, and thus tribal self-government, are objectionable. For instance, even petitioner concedes that its tribal immunity does not extend to protection from the normal processes of the state court in which it has filed suit. See Tr. of Oral Arg. 7, 10-11 ("The Three Affiliated Tribes believe it would be proper in the interest of justice that they would be subject to discovery proceedings and to proceedings that would insure a fair trial to the non-Indian defendants"). Petitioner also concedes that a non-Indian defendant may assert a counterclaim arising out of the same transaction or occurrence that is the subject of the principal suit as a setoff or recoupment. See id. at 6-7, 9. It is clear, however, that the extent of the waiver presently required by Chapter 27-19 is unduly intrusive on the Tribe's common law sovereign immunity, and thus on its ability to govern itself according to its own laws. By requiring that the Tribe open itself up to the coercive jurisdiction of state courts for all matters occurring on the reservation, the statute invites a potentially severe impairment of the authority of the tribal government, its courts, and its laws. See, e.g., Fisher v. District Court, supra, at 424 U. S. 387-388. * Page 476 U. S. 892Public Law 280 certainly does not constitute a "governing Act of Congress" which validates this type of interference with tribal immunity and self-government. We have never read Pub.L. 280 to constitute a waiver of tribal sovereign immunity, nor found Pub.L. 280 to represent an abandonment of the federal interest in guarding Indian self-governance. As we explained in Bryan v. Itasca County, 426 U. S. 373, 426 U. S. 387-388 (1976):"Today's congressional policy toward reservation Indians may less clearly than in 1953 favor their assimilation, but Pub.L. 280 was plainly not meant to effect total assimilation. . . . [N]othing in its legislative history remotely suggests that Congress meant the Act's extension of civil jurisdiction to the States should result in the undermining or destruction of such tribal governments as did exist, and a conversion of the affected tribes into little more than 'private, voluntary organizations,' United States v. Mazurie, 419 U. S. 544, 419 U. S. 557 (1975). . . . The Act itself refutes such an inference: there is notably absent any conferral of state jurisdiction over the tribes themselves, and § 4(c), 28 U.S.C. § 1360(c), providing for the 'full force and effect' of any tribal ordinances or customs 'heretofore or hereafter adopted by an Indian tribe . . . if not inconsistent with any applicable civil law of the State,' contemplates the continuing vitality of tribal government."(Footnote omitted.)Certainly, the 1968 amendments to Pub.L. 280 pointedly illustrate the continuing congressional concern over tribal sovereignty. The impetus for the addition of a consent requirement in the 1968 amendments was congressional dissatisfaction with the involuntary extension of state jurisdiction over Indians who did not feel they were ready to accept such jurisdiction, or who felt threatened by it. See, e.g., S.Rep. No. 721, 90th Cong., 1st Sess., 32 (1967) (views of Sen. Ervin) ("Tribes have been critical of Public Law 280 because it authorizes the unilateral application of State law to Page 476 U. S. 893 all tribes without their consent and regardless of their needs or special circumstances. Moreover, it appears that tribal laws were unnecessarily preempted . . ."); Rights of Members of Indian Tribes: Hearing on H.R. 15419 and Related Bills before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 90th Cong., 2d Sess., 25 (1968) (referring to tribal consent requirement as a way to ensure that Indians are not "subjected" to state courts' jurisdiction before they are ready).In sum, the State's interest is overly broad and overly intrusive when examined against the backdrop of the federal and tribal interests implicated in this case. See Rice v. Rehner, 463 U.S. at 463 U. S. 719. The perceived inequity of permitting the Tribe to recover from a non-Indian for civil wrongs in instances where a non-Indian allegedly may not recover against the Tribe simply must be accepted in view of the overriding federal and tribal interests in these circumstances, much in the same way that the perceived inequity of permitting the United States or North Dakota to sue in cases where they could not be sued as defendants because of their sovereign immunity also must be accepted. Our examination of the state, tribal, and federal interests implicated in this case, then, reinforces our conclusion that North Dakota's disclaimer of jurisdiction over suits such as this cannot be reconciled with the congressional plan embodied in Pub.L. 280.The judgment of the North Dakota Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtAffiliated Tribes v. Wold Engineering, 476 U.S. 877 (1986)Three Affiliated Tribes of the Fort Berthold Reservation v. WoldNo. 84-1973Argued March 24, 1986Decided June 16, 1986476 U.S. 877SyllabusPetitioner Indian tribe brought suit against respondent corporation (hereafter respondent) in a North Dakota state court for negligence and breach of contract in connection with respondent's construction of a water supply system on petitioner's reservation. The trial court dismissed the suit for lack of jurisdiction. The North Dakota Supreme Court held that a North Dakota statute (Chapter 27-19) -- which provides that jurisdiction of the State shall be extended over all civil claims for relief that arise on an Indian reservation upon acceptance by Indian citizens -- disclaimed the unconditional state court civil jurisdiction North Dakota had previously extended to tribal Indians suing non-Indians in state court, and that Chapter 27-19 barred petitioner from maintaining its suit in state court absent its waiver of sovereign immunity.Held:1. Because the federal statute governing state assumption of jurisdiction over Indian country, Pub.L. 280, was designed to extend the jurisdiction of the States over Indian country and to encourage state assumption of such jurisdiction, and because Congress specifically considered the issue of retrocession, but did not provide for disclaimers of jurisdiction lawfully acquired other than under Pub.L. 280 prior to 1968, such disclaimers cannot be reconciled with the congressional plan embodied in Pub.L. 280, and thus are preempted. Pp. 476 U. S. 884-887.2. The conclusion that the operation of the North Dakota jurisdictional scheme in this case is inconsistent with federal law is reinforced by the fact that it imposes an undue burden on federal and tribal interests in Indian self-government and autonomy, as well as the federal interest in ensuring access to the courts. Pp. 476 U. S. 887-893.364 N.W.2d 98, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 893. Page 476 U. S. 878

1967_85

MR. JUSTICE STEWART delivered the opinion of the Court.The Federal Kidnaping Act, 18 U.S.C. § 1201(a), provides:"Whoever knowingly transports in interstate . . . commerce, any person who has been unlawfully . . . kidnaped . . . and held for ransom . . . or otherwise Page 390 U. S. 571 . . . shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed."This statute thus creates an offense punishable by death "if the verdict of the jury shall so recommend." The statute sets forth no procedure for imposing the death penalty upon a defendant who waives the right to jury trial or upon one who pleads guilty.On October 10, 1966, a federal grand jury in Connecticut returned an indictment charging in count one that three named defendants, the appellees in this case, had transported from Connecticut to New Jersey a person who had been kidnaped and held for ransom, and who had been harmed when liberated. [Footnote 1] The District Court dismissed this count of the indictment, [Footnote 2] holding the Federal Kidnaping Act unconstitutional because it makes "the risk of death" the price for asserting the right to jury trial, and thereby "impairs . . . free exercise" of that constitutional right. [Footnote 3] The Government appealed Page 390 U. S. 572 directly to this Court, [Footnote 4] and we noted probable jurisdiction. [Footnote 5] We reverse.We agree with the District Court that the death penalty provision of the Federal Kidnaping Act imposes an impermissible burden upon the exercise of a constitutional right, but we think that provision is severable from the remainder of the statute. There is no reason to invalidate the law in its entirety simply because its capital punishment clause violates the Constitution. The District Court therefore erred in dismissing the kidnaping count of the indictment.IOne fact at least is obvious from the face of the statute itself: in an interstate kidnaping case where the victim has not been liberated unharmed, the defendant's assertion of the right to jury trial may cost him his life, for the federal statute authorizes the jury -- and only the jury -- to return a verdict of death. The Government does not dispute this proposition. What it disputes is the conclusion that the statute thereby subjects the defendant who seeks a jury trial to an increased hazard of capital punishment. As the Government construes the statute, a defendant who elects to be tried by a jury cannot be put to death even if the jury so recommends -- unless the trial judge agrees that capital punishment should be imposed. Moreover, the argument goes, a defendant cannot avoid the risk of death by attempting to plead guilty or waive jury trial. For even if the trial judge accepts a guilty plea or approves a jury waiver, the judge remains free, in the Government's view of the statute, to convene a special jury for the limited purpose of deciding whether to recommend the death penalty. The Government thus contends that, whether or not the Page 390 U. S. 573 defendant chooses to submit to a jury the question of his guilt, the death penalty may be imposed if and only if both judge and jury concur in its imposition. On this understanding of the statute, the Government concludes that the death penalty provision of the Kidnaping Act does not operate to penalize the defendant who chooses to contest his guilt before a jury. It is unnecessary to decide here whether this conclusion would follow from the statutory scheme the Government envisions, [Footnote 6] for it is not, in fact, the scheme that Congress enacted.At the outset, we reject the Government's argument that the Federal Kidnaping Act gives the trial judge discretion to set aside a jury recommendation of death. So far as we are aware, not once in the entire 34-year history of the Act has a jury's recommendation of death been discarded by a trial judge. [Footnote 7] The Government would Page 390 U. S. 574 apparently have us assume either that trial judges have always agreed with jury recommendations of capital punishment under the statute -- an unrealistic assumption, at best, [Footnote 8] -- or that they have abdicated their statutory duty to exercise independent judgment on the issue of penalty. In fact, the explanation is a far simpler one. The statute unequivocally states that, "if the verdict of the jury shall so recommend," the defendant "shall be punished . . . by death. . . ." The word is "shall," not "may." [Footnote 9] In acceding without exception to jury recommendations Page 390 U. S. 575 of death, trial judges have simply carried out the mandate of the statute.The Government nonetheless urges that we overlook Congress' choice of the imperative. Whatever might have been assumed in the past, we are now asked to construe the statute so as to eliminate the jury's power to fix the death penalty without the approval of the presiding judge. "[T]his reading," it is said, would conform "to the long tradition that makes the trial judge in the federal courts the arbiter of the sentence." And so it would. The difficulty is that Congress intentionally discarded that tradition when it passed the Federal Kidnaping Act. Over the forcefully articulated objection that jury sentencing would represent an unwarranted departure from settled federal practice, [Footnote 10] Congress rejected a version of the Kidnaping Act that would have Page 390 U. S. 576 left punishment to the court's discretion [Footnote 11] and, instead, chose an alternative that shifted from a single judge to a jury of 12 the onus of inflicting the penalty of death. [Footnote 12] To accept the Government's suggestion that the jury's sentencing role be treated as merely advisory would return to the judge the ultimate duty that Congress deliberately placed in other hands.The thrust of the clause in question was clearly expressed by the House Judiciary Committee that drafted it: Its purpose was, quite simply, "to permit the jury to designate a death penalty for the kidnaper." [Footnote 13] The fact that Congress chose the word "recommend" to describe what the jury would do in designating punishment cannot obscure the basic congressional objective of making the jury, rather than the judge the arbiter of the death sentence. The Government's contrary contention cannot stand.Equally untenable is the Government's argument that the Kidnaping Act authorizes a procedure unique in the federal system -- that of convening a special jury, without the defendant's consent, for the sole purpose of deciding Page 390 U. S. 577 whether he should be put to death. We are told initially that the Federal Kidnaping Act authorizes this procedure by implication. The Government's reasoning runs as follows: the Kidnaping Act permits the infliction of capital punishment whenever a jury so recommends. The Act does not state in so many words that the jury recommending capital punishment must be a jury impaneled to determine guilt as well. Therefore, the Act authorizes infliction of the death penalty on the recommendation of a jury specially convened to determine punishment. The Government finds support for this analysis in a Seventh Circuit decision construing the Federal Kidnaping Act to mean that the death penalty may be imposed whenever "an affirmative recommendation [is] made by a jury," including a jury convened solely for that purpose after the court has accepted a guilty plea. Seadlund v. United States, 97 F.2d 742, 748. Accord, Robinson v. United States, 264 F. Supp. 146, 153. But the statute does not say "a jury." It says "the jury." At least when the defendant demands trial by jury on the issue of guilt, the Government concedes that "the verdict of the jury" means what those words naturally suggest: the general verdict of conviction or acquittal returned by the jury that passes upon guilt or innocence. Thus, when such a jury has been convened, the statutory reference is to that jury alone, not to a jury impaneled after conviction for the limited purpose of determining punishment. [Footnote 14] Yet the Government argues that, when the issue of guilt has been tried to a judge or has been eliminated altogether by a plea of guilty, "the verdict of the jury" at once assumes a completely new meaning. In such a case, it is said, "the verdict of the jury" means the recommendation Page 390 U. S. 578 of a jury convened for the sole purpose of deciding whether the accused should live or die.The Government would have us give the statute this strangely bifurcated meaning without the slightest indication that Congress contemplated any such scheme. Not a word in the legislative history so much as hints that a conviction on a plea of guilty or a conviction by a court sitting without a jury might be followed by a separate sentencing proceeding before a penalty jury. If the power to impanel such a jury had been recognized elsewhere in the federal system when Congress enacted the Federal Kidnaping Act, perhaps Congress' total silence on the subject could be viewed as a tacit incorporation of this sentencing practice into the new law. But the background against which Congress legislated was barren of any precedent for the sort of sentencing procedure we are told Congress impliedly authorized.The Government nonetheless maintains that Congress' failure to provide for the infliction of the death penalty upon those who plead guilty or waive jury trial was no more than an oversight that the courts can and should correct. At least twice, Congress has expressly authorized the infliction of capital punishment upon defendants convicted without a jury, [Footnote 15] but even on the assumption Page 390 U. S. 579 that the failure of Congress to do so here was wholly inadvertent, it would hardly be the province of the courts to fashion a remedy. Any attempt to do so would be fraught with the gravest difficulties: if a special jury were convened to recommend a sentence, how would the penalty hearing proceed? What would each side be required to show? What standard of proof would govern? To what extent would conventional rules of evidence be abrogated? What privileges would the accused enjoy? Congress, unlike the state legislatures that have authorized jury proceedings to determine the penalty in capital cases, [Footnote 16] has addressed itself to none of these questions. [Footnote 17] Page 390 U. S. 580It is one thing to fill a minor gap in a statute to extrapolate from its general design details that were inadvertently omitted. It is quite another thing to create from whole cloth a complex and completely novel procedure and to thrust it upon unwilling defendants for the sole purpose of rescuing a statute from a charge of unconstitutionality. We recognize that trial judges sitting in federal kidnaping cases have on occasion chosen the latter course, attempting to fashion on an ad hoc basis the ground rules for penalty proceedings before a jury. [Footnote 18] We do not know what kinds of rules particular federal judges have adopted, how widely such rules have varied, or how fairly they have been applied. But one thing at least is clear: individuals forced to defend their lives in proceedings tailor-made for the occasion must do so without the guidance that defendants ordinarily find in a body of procedural and evidentiary rules spelled out in advance of trial. [Footnote 19] The Government notes with approval Page 390 U. S. 581 "the decisional trend which has sought . . . to place the most humane construction on capital legislation." Yet it asks us to extend the capital punishment provision of the Federal Kidnaping Act in a new and uncharted direction without the compulsion of a legislative mandate and without the benefit of legislative guidance. That we decline to do.IIUnder the Federal Kidnaping Act, therefore, the defendant who abandons the right to contest his guilt before a jury is assured that he cannot be executed; the defendant ingenuous enough to seek a jury acquittal stands forewarned that, if the jury finds him guilty and does not wish to spare his life, he will die. Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury. The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty [Footnote 20] and to deter exercise of the Sixth Amendment right to demand a jury trial. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional. But, as the Government notes, limiting the death penalty to cases where the jury recommends its imposition does have another objective: it avoids the more drastic alternative of mandatory Page 390 U. S. 582 capital punishment in every case. In this sense, the selective death penalty procedure established by the Federal Kidnaping Act may be viewed as ameliorating the severity of the more extreme punishment that Congress might have wished to provide. [Footnote 21]The Government suggests that, because the Act thus operates "to mitigate the severity of punishment," it is irrelevant that it "may have the incidental effect of inducing defendants not to contest in full measure." [Footnote 22] We cannot agree. Whatever might be said of Congress' objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. Cf. United States v. Robel, 389 U. S. 258; Shelton v. Tucker, 364 U. S. 479, 364 U. S. 488-489. The question is not whether the chilling effect is "incidental", rather than intentional; the question is whether that effect is unnecessary, and therefore excessive. In this case, the answer to that question is clear. The Congress can, of course, mitigate the severity of capital punishment. The goal of limiting the death penalty to cases in which a jury recommends it is an entirely legitimate one. But that goal can be achieved without penalizing those defendants who plead not guilty and demand jury trial. In some States, for example, the choice between life imprisonment and capital punishment is left to a jury in every case -- regardless of how the defendant's guilt has been determined. [Footnote 23] Given the availability of this and other alternatives, it is clear that the selective death penalty provision of the Federal Kidnaping Act cannot be justified Page 390 U. S. 583 by its ostensible purpose. Whatever the power of Congress to impose a death penalty for violation of the Federal Kidnaping Act, Congress cannot impose such a penalty in a manner that needlessly penalizes the assertion of a constitutional right. See Griffin v. California, 380 U. S. 609. [Footnote 24]It is no answer to urge, as does the Government, that federal trial judges may be relied upon to reject coerced pleas of guilty and involuntary waivers of jury trial. For the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers, but simply that it needlessly encourages them. A procedure need not be inherently coercive in order that it be held to impose an impermissible burden upon the assertion of a constitutional right. Thus, the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily. [Footnote 25] The power to reject coerced guilty pleas and involuntary jury waivers might alleviate, but it cannot totally eliminate, the constitutional infirmity in the capital punishment provision of the Federal Kidnaping Act. Page 390 U. S. 584The Government alternatively proposes that this Court, in the exercise of its supervisory powers, should simply instruct federal judges sitting in kidnaping cases to reject all attempts to waive jury trial and all efforts to plead guilty, however voluntary and well informed such attempted waivers and pleas might be. In that way, we could assure that every defendant charged in a federal court with aggravated kidnaping would face a possible death penalty, and that no defendant tried under the federal statute would be induced to forgo a constitutional right. But, of course, the inevitable consequence of this "solution" would be to force all defendants to submit to trial, however clear their guilt and however strong their desire to acknowledge it in order to spare themselves and their families the spectacle and expense of protracted courtroom proceedings. It is true that a defendant has no constitutional right to insist that he be tried by a judge, rather than a jury, Singer v. United States, 380 U. S. 24, and it is also true "that a criminal defendant has [no] absolute right to have his guilty plea accepted by the court." Lynch v. Overholser, 369 U. S. 705, 369 U. S. 719. But the fact that jury waivers and guilty pleas may occasionally be rejected hardly implies that all defendants may be required to submit to a full-dress jury trial as a matter of course. Quite apart from the cruel impact of such a requirement upon those defendants who would greatly prefer not to contest their guilt, it is clear -- as even the Government recognizes -- that the automatic rejection of all guilty pleas "would rob the criminal process of much of its flexibility." As one federal court has observed: [Footnote 26]"The power of a court to accept a plea of guilty is traditional and fundamental. Its existence is necessary for the . . . practical . . . administration Page 390 U. S. 585 of the criminal law. Consequently, it should require an unambiguous expression on the part of the Congress to withhold this authority in specified cases."If any such approach should be inaugurated in the administration of a federal criminal statute, we conclude that the impetus must come from Congress, not from this Court. The capital punishment provision of the Federal Kidnaping Act cannot be saved by judicial reconstruction.IIIThe remaining question is whether the statute as a whole must fall simply because its death penalty clause is constitutionally deficient. The District Court evidently assumed that it must, for that court dismissed the kidnaping indictment. We disagree. As we said in Champlin Rfg. Co. v. Commission, 286 U. S. 210, 286 U. S. 234:"The unconstitutionality of a part of an Act does not necessarily defeat . . . the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law. [Footnote 27] "Page 390 U. S. 586Under this test, it is clear that the clause authorizing capital punishment is severable from the remainder of the kidnaping statute and that the unconstitutionality of that clause does not require the defeat of the law as a whole. See McDowell v. United States, 274 F. Supp. 426, 429. Cf. Spillers v. State, ___ Nev. ___, ___, 436 P.2d 18, 23-24.The clause in question is a functionally independent part of the Federal Kidnaping Act. Its elimination in no way alters the substantive reach of the statute, and leaves completely unchanged its basic operation. Under such circumstances, it is quite inconceivable that the Congress which decided to authorize capital punishment in aggravated kidnaping cases would have chosen to discard the entire statute if informed that it could not include the death penalty clause now before us. [Footnote 28]In this case, it happens that history confirms what common sense alone would suggest: the law, as originally enacted in 1932, contained no capital punishment provision. [Footnote 29] A majority of the House had favored the Page 390 U. S. 587 death penalty, but had yielded to opposition in the Senate as a matter of expediency. [Footnote 30] Only one Congressman had expressed the view that the law would not be worth enacting without capital punishment. [Footnote 31] The majority obviously felt otherwise. [Footnote 32] When the death penalty was added in 1934, the statute was left substantially unchanged Page 390 U. S. 588 in every other respect. [Footnote 33] The basic problem that had prompted enactment of the law in 1932 -- the difficulty of relying upon state and local authorities to Page 390 U. S. 589 investigate and prosecute interstate kidnaping [Footnote 34] -- had not vanished during the intervening two years. It is therefore clear that Congress would have made interstate kidnaping a federal crime even if the death penalty provision had been ruled out from the beginning. It would be difficult to imagine a more compelling case for severability.In an effort to suggest the contrary, the appellees insist that the 1934 amendment "did not merely increase the penalties for kidnaping; it changed the whole thrust of the Act." They note that Congress deliberately limited Page 390 U. S. 590 capital punishment to those kidnapers whose victims are not liberated unharmed. Such a differential penalty provision, the appellees argue, is needed to discourage kidnapers from injuring those whom they abduct. [Footnote 35] The appellees contend that, without its capital punishment clause, the Federal Kidnaping Act would not distinguish "the penalties applicable to those who do and those who do not harm or kill their victims." Stressing the obvious congressional concern for the victim's safety, they conclude that "it is doubtful that Congress would intend for the statute to stand absent such a feature." This argument is wrong as a matter of history, for Congress enacted the statute "absent such a feature." [Footnote 36] It is Page 390 U. S. 591 wrong as a matter of fact, for the length of imprisonment imposed under the Act can obviously be made to reflect the kidnaper's treatment of his victim. And it is wrong as a matter of logic, for nothing could more completely obliterate the distinction between "the penalties applicable to those who do and those who do not harm or kill their victims" than the total invalidation of all the penalties provided by the Federal Kidnaping Act -- the precise result sought by the appellees.Thus, the infirmity of the death penalty clause does not require the total frustration of Congress' basic purpose -- that of making interstate kidnaping a federal crime. By holding the death penalty clause of the Federal Kidnaping Act unenforceable, we leave the statute an operative whole, free of any constitutional objection. The appellees may be prosecuted for violating the Act, but they cannot be put to death under its authority.The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Jackson, 390 U.S. 570 (1968)United States v. JacksonNo. 85Argued December 7, 1967Decided April 8, 1968390 U.S. 570SyllabusThe Federal Kidnaping Act provides that interstate kidnapers"shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed."The District Court dismissed the count of an indictment charging appellees with violating the Act because it makes "the risk of death" the price for asserting the right to trial by jury, and thus "impairs . . . free exercise" of that constitutional right. The Government appealed directly to this Court.Held: The death penalty clause imposes an impermissible burden upon the exercise of a constitutional right, but that provision is severable from the remainder of the Act and the unconstitutionality of that clause does not require the defeat of the Act as a whole. Pp. 390 U. S. 572-591.262 F. Supp. 716, reversed and remanded.

1968_69

MR. JUSTICE HARLAN delivered the opinion of the Court.This case arises out of the Nation's longest railroad labor dispute, much of the history of which is recorded in the pages of the United States and federal reports. [Footnote 1] The events most pertinent to the present litigation began on April 24, 1966, when the Florida East Coast Railway Company (FEC), having exhausted all procedures required by the Railway Labor Act [Footnote 2] for the resolution of a "major dispute," [Footnote 3] unilaterally changed its operating employees' rates of pay, rules, and working conditions. Petitioners, who represent FEC's operating employees, responded by calling a strike and thereafter by picketing the various locations at which FEC carried on its operations, including the premises of the respondent, Jacksonville Terminal Company. [Footnote 4] Page 394 U. S. 372On the complaint of respondent and two railroads other than FEC, a United States District Court issued a temporary restraining order several hours after the picketing began, and later enjoined petitioners from picketing respondent's premises except at a "reserved gate" set aside for FEC employees. The Court of Appeals for the Fifth Circuit reversed, holding that the Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. § 101 et seq., prevented issuance of a federal injunction. Railroad Trainmen v. Atlantic C. L. R. Co., 362 F.2d 649 (1966). We affirmed by an equally divided Court. 385 U. S. 20 (1966).While that litigation was pending in the federal courts, respondent instituted the present action for injunctive relief in the Florida Circuit Court. Petitioners removed the action to the United States District Court, which promptly remanded to the state court. The Florida court issued a temporary injunction, substantially identical to the earlier federal order, which it made final after a full hearing. On appeal, the Florida District Court of Appeal affirmed per curiam. The Supreme Court of Florida denied certiorari and dismissed the appeal. We granted certiorari, 392 U.S. 904 (1968), to determine the extent of state power to regulate the economic combat of parties subject to the Railway Labor Act.IRespondent, a Florida corporation, operates a passenger and freight rail terminal facility in Jacksonville, Florida, through which rail traffic passes to and from the Florida peninsula. The corporation is jointly owned and controlled by four railroad carriers, including FEC, which enjoy the common use of the terminal's facilities and services, and share equally in its operation. [Footnote 5] Page 394 U. S. 373FEC carries on substantial daily operations at the terminal, interchanging freight cars with the other railroads; it accounts for approximately 30% of all interchanges on the premises. Respondent provides various services necessary to FEC's operations, including switching, signaling, track maintenance, and repairs on FEC cars and engines. Without the work and cooperation of employees of respondent (and the other railroads) FEC could not carry on its normal activities at the terminal. In short,"despite the legal separateness of the Terminal Company's entity and operation, it cannot be disputed that the facilities and services provided by the Terminal Company, in fact, constitute an integral part of the day-to-day operations of the FEC. . . ."Railroad Trainmen v. Atlantic C. L. R. Co., 362 F.2d 649, 651 (1966).Respondent maintains a "reserved gate" for the exclusive use of all FEC employees entering the terminal premises on foot to begin their workday. Notices to this effect are posted, but compliance is not policed: FEC employees use other entrances as well, and other employees use the FEC reserved entrance. The terminal has a number of other foot, road, and rail entrances, through which pass employees of respondent and the railroads using the premises. No entrances are set aside to separate those employees of respondent and the other railroads who provide services for FEC from those who do not; nor, with one or two possible exceptions, do trains making interchanges with FEC pass through different gateways from those which do not. The joint and Page 394 U. S. 374 common use of the premises and facilities would, presumably, render such separations impracticable.On May 4, 1966, petitioners began to picket almost every entrance to the terminal. The signs stated clearly that the dispute was with FEC alone, and urged "fellow railroad men" not to "cross" and not to "assist FEC." [Footnote 6] The picketing was entirely peaceful. It lasted only a few hours, until it was curtailed by a federal temporary restraining order, and thereafter by a series of federal and state injunctions.The Florida Circuit Court found that resumption of general picketing "would result in a virtual cessation of activities . . . of the Terminal Company," and would cause serious economic damage to the entire State. Joint App. 183. The court held that the picketing constituted a secondary boycott illegal under state law; that it unjustifiably interfered with respondent's business relations; that it violated the State's restraint of trade laws, Fla.Stat. § 542.01 et seq. (1965), and that it sought to force respondent to violate its duties as a carrier under the Florida Transportation Act. [Footnote 7] On Page 394 U. S. 375 this basis, the court enjoined petitioners from picketing the terminal except at the FEC reserved gate, and from causing or inducing respondent's employees to cease performing their duties of employment in connection with the FEC dispute.IIWe consider initially petitioners' argument that the jurisdiction of the Florida court was ousted by the primary and exclusive jurisdiction of the National Labor Relations Board. Cf. San Diego Unions v. Garmon, 359 U. S. 236 (1969).It is not disputed that petitioners, the respondent and its employees, and the railroads (including FEC) that use the terminal as well as their employees, are subject to the Railway Labor Act. See §§ 1 First, Fourth, 44 Stat. 577, as amended, 45 U.S.C. §§ 151 First, Fourth; Interstate Commerce Act, as amended, § 1(3), 24 Stat. 379, 49 U.S.C. § 1(3). The petitioner organizations "are composed predominantly and overwhelmingly of employees . . . subject to the Railway Labor Act," Joint App. 93; all pickets were members of local lodges composed solely of such employees, and were employees of the FEC. Id. at 94. However, the organizations' national membership includes a small percentage of employees who are not subject to the Railway Labor Act, [Footnote 8] and who may be subject to the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C. § 151 et seq. Petitioners contend that this is sufficient to bring the present dispute arguably within the NLRA, and they assert that, until the National Labor Relations Board decides otherwise, no court may Page 394 U. S. 376 assume jurisdiction over the controversy. Cf. Marine Engineers v. Interlake Steamship Co., 370 U. S. 173 (1962). [Footnote 9]This argument proves too much. For on petitioners' theory, it is hard to conceive of any railway labor dispute that is not "arguably" subject to the NLRB's primary jurisdiction. A serious question would be presented whether the parties to such a dispute were ever obligated to pursue the Railway Labor Act's procedures, and whether the Mediation and Adjustment Boards could ever concern themselves with a dispute until the matter had first been submitted to the NLRB and that agency had determined that it lacked jurisdiction.This was not meant to be. The NLRA came into being against the background of preexisting comprehensive federal legislation regulating railway labor disputes. Sections 2(2) and (3) of the NLRA, 29 U.S.C. §§ 152(2), (3), expressly exempt from the Act's coverage employees and employers subject to the Railway Labor Act. [Footnote 10] And when the traditional railway labor organizations Page 394 U. S. 377 act on behalf of employees subject to the Railway Labor Act in a dispute with carriers subject to the Railway Labor Act, the organizations must be deemed, pro tanto, exempt from the National Labor Relations Act. See NLRA § 2(5), 29 U.S.C. § 152(5). Marine Engineers, supra, is inapposite. For assuming, arguendo, that this is a "doubtful case," 370 U.S. at 370 U. S. 182, we were not there concerned with a conflict between two independent and mutually exclusive federal labor schemes.Whatever might be said where railway organizations act as agents for, or as joint venturers with, unions subject to the NLRA, see Electrical Workers v. NLRB, 122 U.S.App.D.C. 8, 350 F.2d 791 (1965); or where railway unions are engaged in a dispute on behalf of their nonrail employees; or where a rail carrier seeks a remedy against the conduct of nonrailway employees, see Steelworkers v. NLRB, 376 U. S. 492, 376 U. S. 501 (1964); Teamsters Union v. New York, N.H. & H. R. Co., 350 U. S. 155 (1956), none of these is this case. This is a railway labor dispute, pure and simple. And although we shall make use of analogies drawn from the NLRA to determine the rights of employees subject to the Railway Labor Act, see infra Parts 394 U. S. the NLRA has no direct application to the present case.IIIThe heart of the Railway Labor Act is the duty, imposed by § 2 First upon management and labor,"to Page 394 U. S. 378 exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes . . . in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof."The Act provides a detailed framework to facilitate the voluntary settlement of major disputes. A party desiring to effect a change of rates of pay, rules, or working conditions must give advance written notice. § 6. The parties must confer, § 2 Second, and, if conference fails to resolve the dispute, either or both may invoke the services of the National Mediation Board, which may also proffer its services sua sponte if it finds a labor emergency to exist. § 5 First. If mediation fails, the Board must endeavor to induce the parties to submit the controversy to binding arbitration, which can take place, however, only if both consent. §§ 5 First, 7. If arbitration is rejected and the dispute threatens"substantially to interrupt interstate commerce to a degree such as to deprive any section of the country of essential transportation service, the Mediation Board shall notify the President,"who may create an emergency board to investigate and report on the dispute. § 10. While the dispute is working its way through these stages, neither party may unilaterally alter the status quo. §§ 2 Seventh, 5 First, 6, 10.Nowhere does the text of the Railway Labor Act specify what is to take place once these procedures have been exhausted without yielding resolution of the dispute. Implicit in the statutory scheme, however, is the ultimate right of the disputants to resort to self-help -- "the inevitable alternative in a statutory scheme which deliberately denies the final power to compel arbitration." Florida E. C. R. Co. v. Railroad Trainmen, 336 F.2d 172, 181 (1964). We have consistently so held in a long Page 394 U. S. 379 line of decisions. Railway Clerks v. Florida E. C. R. Co., 384 U. S. 238, 384 U. S. 244 (1966); Locomotive Engineers v. Baltimore & O. R. Co., 372 U. S. 284 (1963); Railroad Telegraphers v. Chicago & N.W. R. Co., 362 U. S. 330 (1960); Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 325 U. S. 725 (1945).Both before and after enactment of the Railway Labor Act, [Footnote 11] as well as during congressional debates on the bill itself, [Footnote 12] proposals were advanced for replacing this final resort to economic warfare with compulsory arbitration and anti-strike laws. But although Congress and the Executive have taken emergency ad hoc measures to compel the resolution of particular controversies, [Footnote 13] no such general provisions have ever been enacted. And for the settlement of major disputes,"the statutory scheme retains throughout the traditional voluntary processes of negotiation, mediation, voluntary arbitration, and conciliation. Every facility for bringing about agreement is provided Page 394 U. S. 380 and pressures for mobilizing public opinion are applied. The parties are required to submit to the successive procedures designed to induce agreement. § 5 First (b). But compulsions go only to insure that those procedures are exhausted before resort can be had to self-help. No authority is empowered to decide the dispute and no such power is intended, unless the parties themselves agree to arbitration."Elgin, J. & E. R. Co. v. Burley, supra, at 325 U. S. 725.IVWe have not previously had occasion to consider whether the Railway Labor Act circumscribes state power to regulate economic warfare between disputants subject to the Act. Read narrowly, the decisions cited above, at 394 U. S. 379, do no more than negate the "implication" of an independent federal remedy against self-help, [Footnote 14] and do not foreclose a State from bringing its own sanctions to bear on such conduct. On this theory, once the Act's required processes have been exhausted, a State would be free to impose whatever restrictions it wished on the parties' use of self-help.The Act is silent on this question, as is its legislative history. [Footnote 15] We think it clear, however, that the exercise of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act's processes. The disputants' positions in the course of negotiation and mediation, and their willingness to submit to binding arbitration or abide by the recommendations Page 394 U. S. 381 of a presidential commission, would be seriously affected by the knowledge that, after these procedures were exhausted a State would, say, prohibit the employees from striking or prevent the railroad from taking measures necessary to continue operating in the face of a strike. Such interference would be compounded if the disputants were -- as they frequently would be -- subjected to various and divergent state laws. Railway (and airline [Footnote 16]) labor disputes typically present problems of national magnitude. A strike in one State often paralyzes transportation in an entire section of the United States, and transportation labor disputes frequently result in simultaneous work stoppages in many States.The Railway Labor Act's entire scheme for the resolution of major disputes would become meaningless if the States could prohibit the parties from engaging in any self-help. And the potentials for conflict, see San Diego Unions v. Garmon, 359 U. S. 236, 359 U. S. 249, 359 U. S. 250 (1959) (concurring opinion), and for the imposition of inconsistent state obligations, cf. Clearfield Trust Co. v. United States, 318 U. S. 363 (1943), are simply too great to allow each State which happens to gain personal jurisdiction over a party to a railroad labor dispute to decide for itself what economic self-help that party may or may not pursue. The determination of the permissible range of self-help "cannot be left to the laws of the many States, for it would be fatal to the goals of the Act" if conduct were prohibited by state laws "even though in furtherance of the federal scheme. The needs of the subject matter manifestly call for uniformity." Machinists v. Central Airlines, Inc., 372 U. S. 682, 372 U. S. 691-692 (1963). Page 394 U. S. 382It follows that, even though the Florida courts may have jurisdiction over this litigation, the application of state law is limited by paramount federal policies of nationwide import.VWe are presented, then, with the problem of delineating the area of labor combat protected [Footnote 17] against infringement by the States. The text and legislative history of the Railway Labor Act, and the decisional law thereunder, provide little guidance. To refer to the "general" labor law, as it existed around the time the Act came into being, would be ahistorical. Like forays into economic due process, see Ferguson v. Skrupa, 372 U. S. 726 (1963); Williamson v. Lee Optical Co., 348 U. S. 483, 348 U. S. 488 (1955), this judge-made law of the late 19th and early 20th centuries was based on self-mesmerized views of economic and social theory, see F. Frankfurter & N. Green, The Labor Injunction 16, 199-205 (1930); A. Cox & D. Bok, Cases on Labor Law 101-105 (5th ed.1962), and on statutory misconstruction, see United States v. Hutcheson, 312 U. S. 219 (1941). We need not hold that the Norris-LaGuardia Act applies directly to this case [Footnote 18] to find in its enactment a clear disapproval Page 394 U. S. 383 of these free-wheeling judicial exercises. See Meat Cutters v. Jewel Tea Co., 381 U. S. 676, 381 U. S. 697, 381 U. S. 700-709, 381 U. S. 718 (1965) (separate opinion of Mr. Justice Goldberg).To the extent that there exists today any relevant corpus of "national labor policy," it is in the law developed during the more than 30 years of administering our most comprehensive national labor scheme, the National Labor Relations Act. This Act represents the only existing congressional expression as to the permissible bounds of economic combat. It has, moreover, presented problems of federal state relations analogous to those at bar. The Court has in the past referred to the NLRA for assistance in construing the Railway Labor Act, see, e.g., Steele v. Louisville & N. R. Co., 323 U. S. 192, 323 U. S. 200-201 (1944); Railroad Trainmen v. Toledo, P. & W. R. Co., 321 U. S. 50, 321 U. S. 61, n. 18 (1944), and we do so again here. Indeed, even if we were to revive the "common law" of labor relations, the common law has always been dynamic and adaptable to changing times, and we would today look to these legislatively based principles for guidance. Cf. Textile Workers v. Lincoln Mills, 353 U. S. 448,4 353 U. S. 56-457 (1957).It should be emphasized from the outset, however, that the National Labor Relations Act cannot be imported wholesale into the railway labor arena. Even rough analogies must be drawn circumspectly, with due regard for the many differences between the statutory schemes. [Footnote 19] Cf. 353 U. S. Chicago River & Page 394 U. S. 384 I. R. Co., 353 U. S. 30, 353 U. S. 31, n. 2 (1957). We refer to the NLRA's policies not in order to "apply" them to petitioners' conduct -- for we conclude that this would be neither justified nor practicable -- but only to determine whether it is within the general penumbra of conduct held protected under the Act or whether it is beyond the pale of any activity thought permissible.In order to gain better perspective for viewing the central issue in this case -- petitioners' alleged "secondary" activities -- we examine first what we find to be polar examples of protected and unprotected conduct -- primary strikes and picketing on the one hand, violence and intimidation on the other.VIThe Court has indicated, without reference to the National Labor Relations Act, that employees subject to the Railway Labor Act enjoy the right to engage in primary strikes over major disputes. In Railway Clerks v. Florida E. C. R. Co., 384 U. S. 238, 384 U. S. 244 (1966), we held that:"The unions, having made their demands and having exhausted all the procedures provided by Congress, were therefore warranted in striking. For the strike has been the ultimate sanction of the union, compulsory arbitration not being provided."Similarly, in Florida E. C. R. Co. v. Railroad Trainmen, 336 F.2d 172, 181 (1964), the Court of Appeals for the Fifth Circuit concluded that"when the machinery of industrial peace fails, the policy in all national labor legislation is to let loose the full economic power of each [party]. On the side of labor, it is the cherished right to strike."Whether the source of this right be found in Page 394 U. S. 385 a particular provision of the Railway Labor Act [Footnote 20] or in the scheme as a whole, it is integral to the Act. State courts may not enjoin a peaceful strike by covered railway employees, no matter how economically harmful the consequences may be. Cf. Bus Employees v. Wisconsin Employment Relations Board, 340 U. S. 383 (1951); Automobile Workers v. O'Brien, 339 U. S. 454 (1950).The Court has consistently held peaceful primary picketing incident to a lawful strike to be protected conduct under the National Labor Relations Act. "Picketing has traditionally been a major weapon to implement the goals of a strike," Steelworkers v. NLRB, 376 U. S. 492, 376 U. S. 499 (1964), and "it is implicit in the Act that the public interest is served by freedom of labor to use the weapon of picketing." Garner v. Teamsters, 346 U. S. 485, 346 U. S. 500 (1953). We see no possible grounds for distinguishing picketing under the Railway Labor Act. Page 394 U. S. 386 Peaceful primary strikes and picketing incident thereto lie within the core of protected self-help under the Railway Labor Act.On the other hand, the National Labor Relations Act gives no colorable protection to violent and coercive conduct incident to a labor dispute. Allen-Bradley Local v. Wisconsin Employment Relations Board, 315 U. S. 740, 315 U. S. 750 (1942). The state interest in preventing "conduct marked by violence and imminent threats to public order" is compelling, San Diego Unions v. Garmon, 359 U. S. 236, 359 U. S. 247 (1959), and such conduct may be enjoined by state courts. Youngdahl v. Rainfair, 355 U. S. 131 (1957); Automobile Workers v. Wisconsin Employment Relations Board, 351 U. S. 266 (1956). Cf. Automobile Workers v. Russell, 356 U. S. 634 (1958); Construction Workers v. Laburnum Construction Corp., 347 U. S. 656 (1954). The federal concern for protecting such conduct when engaged in by railway employees is no less tenuous. The States' interest in preventing it is no less compelling.VIIPetitioners committed no acts of violence. But their picketing, albeit peaceful, could not be characterized as purely "primary." Respondent asserts, in essence, that, because the picketing had secondary aspects, it was necessarily unprotected, and therefore subject to proscription by the state court. The matter, however, is not so simply resolved.No cosmic principles announce the existence of secondary conduct, condemn it as an evil, or delimit its boundaries. These tasks were first undertaken by judges, intermixing metaphysics with their notions of social and economic policy. And the common law of labor relations has created no concept more elusive than that of "secondary" conduct; it has drawn no lines more arbitrary, tenuous, and shifting than those separating "primary" Page 394 U. S. 387 from "secondary" activities. See F. Frankfurter & N. Green, The Labor Injunction 43-46, 170 (1930); 1 L. Teller, Labor Disputes and Collective Bargaining § 145 (1940); E. Oakes, Organized Labor and Industrial Conflicts, § 407 et seq. (1927); Barnard & Graham, Labor and the Secondary Boycott, 15 Wash.L.Rev. 137 (1940); Hellerstein, Secondary Boycotts in Labor Disputes, 47 Yale L.J. 341 (1938). Cf. Aaron, Labor Injunctions in the State Courts -- Pt. I: A Survey, 50 Va.L.Rev. 950, 971-977 (1964). For these reasons, as well as those stated above, at 382-383, this body of common law offers no guidance for the problem at hand.It was widely assumed that, prior to 1947, the Norris-LaGuardia Act prevented federal courts from enjoining any "secondary boycotts." See 93 Cong.Rec. 4198 (remarks of Senator Taft); Bakery Drivers v. Wagshal, 333 U. S. 437, 333 U. S. 442 (1948). Indeed, in an opinion written by Judge Learned Hand, the Court of Appeals for the Second Circuit held that secondary conduct was fully protected by the Wagner Act. NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503 (1942). The 1947 Taft-Hartley amendments, 61 Stat. 140, and the 1959 Landrum-Griffin amendments, 73 Stat. 545, explicitly narrowed the scope of protected employee conduct under the National Labor Relations Act; §§ 8(b)(4) and 8(e) of the Act proscribed a variety of secondary activities. [Footnote 21] But Congress enacted "no . . . sweeping prohibition" of Page 394 U. S. 388 secondary conduct. Carpenters v. NLRB, 357 U. S. 93, 357 U. S. 98 (1958). And despite their relative precision of language, [Footnote 22] the experience under these amendments amply demonstrates that -- as at common law -- bright lines cannot be drawn between "legitimate primary activity' and banned `secondary activity'. . . ." Electrical Workers v. NLRB, 366 U. S. 667, 366 U. S. 673 (1961).The fuzziness of this distinction stems from the overlapping characteristics of the two opposing concepts, and from the vagueness of the concepts themselves. The protected primary strike "is aimed at applying economic pressure by halting the day-to-day operations of the struck employer," Steelworkers v. NLRB, 376 U. S. 492, 376 U. S. 499 (1964), and protected primary picketing"has characteristically been aimed at all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt,"ibid., including other employers and their employees. "The gravamen of a secondary boycott," on the other hand,"is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees' demands."Electrical Workers v. NLRB, 181 F.2d 34, 37 (1950); see also Woodwork Manufacturers v. NLRB, 386 U. S. 612, 386 U. S. 623 (1967). These principles often come into conflict, and attempts to harmonize them in the context of § 8(b)(4) of the National Labor Relations Act have created ramified sets of rules.The problem of delineating the scope of permissible picketing at a "common situs" -- a place, such as respondent's terminal, where both the struck employer and "secondary" Page 394 U. S. 389 or "neutral" employers are carrying on business activities -- has been among the most mooted and complex under the Act. See generally Electrical Workers v. NLRB, 366 U. S. 667, 366 U. S. 674-679 (1961); Moore Dry Dock Co., 92 N.L.R.B. 547 (1950); Lesnick, The Gravamen of the Secondary Boycott, 62 Col.L.Rev. 1363 (1962); Koretz, Federal Regulation of Secondary Strikes and Boycotts -- Another Chapter, 59 Col.L.Rev. 125 (1959). It is difficult to formulate many generalizations governing common situs picketing, but it is clear that secondary employers are not necessarily protected against picketing aimed directly at their employees. In Electrical Workers v. NLRB, supra, for example, we noted that striking employees could picket at a gate on the struck employer's premises which was reserved exclusively for employees of the secondary employer, to induce those employees to refuse to perform work for their employer which was connected with the struck employer's normal business operations. The Court affirmed this principle in Steelworkers v. NLRB, supra, where it held that striking employees could picket to induce a neutral railroad's employees to refuse to pick up and deliver cars for the struck employer -- even though the picketed gate was owned by the railroad, and the railroad's employees would have to pass by the place of picketing to pick up and deliver cars for other plants that were not struck.If the common situs rules were applied to the facts of this case -- considering, for example, FEC's substantial regular business activities on the terminal premises, FEC's relationships with respondent and the other railroads using the premises, [Footnote 23] the mixed use in fact of the Page 394 U. S. 390 purportedly separate entrances. and the terminal's characteristics which made it impossible for the pickets to single out and address only those secondary employees engaged in work connected with FEC's ordinary operations on the premises -- the state injunction might well be found to forbid petitioners from engaging in conduct protected by the National Labor Relations Act. The fact that respondent, the other roads, or other industries in the State suffered serious economic injury as a consequence of petitioners' activities would not, of course, in itself, render the picketing unlawful. Woodwork Manufacturers v. NLRB, 386 U. S. 612, 386 U. S. 627 (197); see NLRB v. Fruit & Vegetable Packers, 377 U. S. 58 (1964); cf. Bus Employees v. Wisconsin Employment Relations Board, 340 U. S. 383 (1951).In short, to condemn all of the petitioners' picketing which carries any "secondary" implications would be to paint with much too broad a brush.VIIIWe have thus far concluded that, although the Florida courts are not preempted of jurisdiction over this cause, 394 U. S. supra, the issues therein are governed by federal law, Parts 394 U. S. 394 U. S. supra; that the Railway Labor Act permits railway employees to engage in sole forms of self-help, free from state interference, ibid.; and, drawing upon labor policies evinced by the National Labor Relations Act, 394 U. S. supra, that such protected self-help includes peaceful "primary" strikes [Footnote 24] and nonviolent picketing in support thereof, 394 U. S. supra, and that it cannot categorically be said that all picketing carrying "secondary" implications is prohibited, 394 U. S. supra. Given these conclusions, it remains to be considered Page 394 U. S. 391 whether, under the present framework of congressional legislation, this Court should undertake precisely to mark out which of the petitioners' picketing activities at respondent's premises are federally protected, and therefore immune from state interference, and which of them are subject to prohibition by the State. We believe that such a course would be a wholly inappropriate one for us to take in the absence of a much clearer manifestation of congressional policy than is to be found in existing laws.Certainly we could not proceed to such a task under the common law of labor relations. For even on the unjustified hypothesis that all secondary conduct is necessarily wrongful, we would lack meaningful standards for separating primary from secondary activities. Nor do the terms of the Railway Labor Act offer assistance. As we have indicated, the Act is wholly inexplicit as to the scope of allowable self-help.Nor can we properly dispose of this case simply by undertaking to determine to what precise extent petitioners' picketing activities would be protected or proscribed under the terms of the National Labor Relations Act. For although, in the absence of any other viable guidelines, we have resorted to the NLRA for assistance in mapping out very general boundaries of self-help under the Railway Labor Act, there is absolutely no warrant for incorporating into that Act the panoply of detailed law developed by the National Labor Relations Board and courts under § 8(b)(4). The NLRA, as we have noted, exempts employees who are subject to the Railway Labor Act, supra at 394 U. S. 376-377, and the inapplicability of § 8(b) to railroad employees was specifically pointed out during the congressional debates on the NLRA, supra at 394 U. S. 376-377, n. 10.Even if the task of adapting the NLRA's principles to railway disputes could be managed and implemented Page 394 U. S. 392 by an agency with administrative expertise, but cf. NLRB v. Insurance Agents, 361 U. S. 477, 361 U. S. 497-498 (1960), Congress has invested no agency with even colorable authority to perform this function. The very complexity of the distinctions examined in 394 U. S. supra, if nothing else, plainly demonstrates that we lack the expertise and competence to undertake this task ourselves.Moreover,"[f]rom the point of view of industrial relations, our railroads are largely a thing apart. . . . 'The railroad world is like a state within a state.'"Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711, 325 U. S. 751 (1945) (Frankfurter, J., dissenting). Thus, if Congress should now find that abuses in the nature of secondary activities have arisen in the railroad industry, see supra at 394 U. S. 376-377, n. 10, it might well decide -- as it did when it considered the garment and construction industries, see NLRA § 8(e) -- that this field requires extraordinary treatment of some sort. Cf., e.g., Railroad Trainmen v. Atlantic C. L. R. Co., 362 F.2d 649, 654-655 (1966). Certainly, it is for the Congress, and not the courts, to strike the balance "between the uncontrolled power of management and labor to further their respective interests." Carpenters v. NLRB, 357 U. S. 93, 357 U. S. 100 (1958); see Woodwork Manufacturers v. NLRB, 386 U. S. 612 (1967); id. at 386 U. S. 648-650 (separate memorandum). The Congress has not yet done so.In short, we have been furnished by Congress neither usable standards nor access to administrative expertise in a situation where both are required. In these circumstances, there is no really satisfactory judicial solution to the problem at hand. However, we conclude that the least unsatisfactory one is to allow parties who have unsuccessfully exhausted the Railway Labor Act's procedures for resolution of a major dispute to employ the full range of whatever peaceful economic power they can muster, so long as its use conflicts with no other obligation imposed by federal law. Hence, until Congress Page 394 U. S. 393 acts, picketing -- whether characterized as primary or secondary -- must be deemed conduct protected against state proscription. [Footnote 25] Cf. Electrical Workers v. NLRB, 122 U.S.App.D.C. 8, 9-10, 360 F.2d 791, 792-793 (1965) (dissenting opinion); NLRB v. Peter Cailler Kohler Swiss Chocolates Co., 130 F.2d 503 (1942). Any other solution -- apart from the rejected one of holding that no conduct is protected -- would involve the courts once again in a venture for which they are institutionally unsuited.The judgment of the Florida District Court of Appeal is accordinglyReversed

U.S. Supreme CourtRailroad Trainmen v. Terminal Co., 394 U.S. 369 (1969)Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co.No. 69Argued December 11, 1968Decided March 25, 1969394 U.S. 369SyllabusFlorida East Coast Railway Co. (FEC), having exhausted all the Railway Labor Act's procedures for resolving a "major dispute," unilaterally changed its operating employees' rates of pay, rules, and working conditions, and petitioner unions called a strike and picketed peacefully at locations where FEC operated, including the premises of respondent terminal company. A federal district court enjoined picketing of respondent's premises except at a "reserved gate" set aside for FEC employees. The Court of Appeals reversed, holding that the Norris-LaGuardia Act barred issuance of a federal injunction, and that decision was affirmed by an equal division of this Court (385 U.S. 20). While that litigation was pending, respondent obtained from the Florida courts an injunction almost identical to the earlier federal order. The state trial court found that resumption of general picketing would result in virtual cessation of respondent's activities and cause serious economic damage to the State, and that it constituted an illegal secondary boycott and was unlawful under other state laws.Held:1. The jurisdiction of the state courts was not preempted by the primary jurisdiction of the National Labor Relations Board, even though a small percentage of petitioner unions' membership may be subject to the National Labor Relations Act (NLRA), as this is simply a railway labor dispute to which the NLRA has no direct application. Pp. 394 U. S. 375-377.2. The Railway Labor Act (RLA) supplies a detailed framework to facilitate the voluntary settlement of major disputes, and while it does not specify what occurs when these procedures have been exhausted without success, it does imply the ultimate right of the parties to resort to peaceful self-help. Pp. 394 U. S. 377-380.3. Although the Florida courts may have jurisdiction over this litigation, the application of state law is limited by paramount federal policies of nationwide import, as the RLA's scheme for the resolution of major disputes would become meaningless if the Page 394 U. S. 370 States could prohibit the parties from engaging in any self-help. Pp. 394 U. S. 380-382.4. The NLRA cannot be imported completely into the railway labor area, but it can be referred to for assistance in construing the RLA, and here the NLRA's policies can aid in determining whether petitioners' conduct is within the penumbra of that protected under the Act or whether it is outside the pale of permissible activity. Pp. 394 U. S. 382-384.5. Peaceful primary picketing incident to a lawful strike is protected conduct under the NLRA, and since there are no grounds for distinguishing picketing under the RLA, peaceful primary strikes and peaceful picketing incident thereto are within the core of protected self-help under the RLA. Pp. 394 U.S. 384-386.6. While it is difficult to formulate generalizations governing common situs picketing, it is clear that secondary employers are not necessarily protected against picketing aimed directly at their employees, and thus to condemn all of petitioners' picketing which carries any "secondary" implications would be to paint with too broad a brush. Pp. 394 U. S. 386-390.7. Congress has not provided usable standards or access to administrative expertise in this area of railway labor conduct, and the least unsatisfactory judicial solution is to allow those who have unsuccessfully exhausted the RLA's procedures for resolving a major dispute to employ their full range of peaceful economic power, provided it does not conflict with any other obligation imposed by federal law. Therefore, until Congress acts, primary or secondary railway labor picketing must be deemed conduct protected against state proscription. Pp. 394 U. S. 390-393.201 So. 2d 253, reversed. Page 394 U. S. 371

1972_71-1369

MR. JUSTICE STEWART delivered the opinion of the Court.The respondents in this case were state prisoners who were deprived of good conduct time credits by the New York State Department of Correctional Services as a result of disciplinary proceedings. They then brought actions in a federal district court, pursuant to the Civil Rights Act of 1871, 42 U.S.C.1983. Alleging that the Department had acted unconstitutionally in depriving them of the credits, they sought injunctive relief to compel restoration of the credits, which in each case would result in their immediate release from confinement in Page 411 U. S. 477 prison. The question before us is whether state prisoners seeking such redress may obtain equitable relief under the Civil Rights Act, even though the federal habeas corpus statute, 28 U.S.C. § 2254, clearly provides a specific federal remedy.The question is of considerable practical importance. For if a remedy under the Civil Rights Act is available, a plaintiff need not first seek redress in a state forum. Monroe v. Pape, 365 U. S. 167, 365 U. S. 183 (191); McNeese v. Board of Education, 373 U. S. 668, 373 U. S. 671 (1963); Damico v. California, 389 U. S. 416 (1967); King v. Smith, 392 U. S. 309, 392 U. S. 312 n. 4 (1968); Houghton v. Shafer, 392 U. S. 639 (1968). If, on the other hand, habeas corpus is the exclusive federal remedy in these circumstances, then a plaintiff cannot seek the intervention of a federal court until he has first sought and been denied relief in the state courts, if a state remedy is available and adequate. 28 U.S.C. § 2254(b).The present consolidated case originated in three separate actions, brought individually by the three respondents. The respondent Rodriguez, having been convicted in a New York state court of perjury and attempted larceny, was sentenced to imprisonment for an indeterminate term of from one and one-half to four years. Under New York Correction Law § 803 and Penal Law § 70.30(4)(a), 70.40(1)(b), a prisoner serving an indeterminate sentence may elect to participate in a conditional release program by which he may earn up to 10 days per month good behavior time credit toward reduction of the maximum term of his sentence. Rodriguez elected to participate in this program. Optimally, such a prisoner may be released on parole after having served approximately two-thirds of his maximum sentence (20 days out of every 30); but accrued good-behavior credits so earned may at any time be withdrawn, in whole Page 411 U. S. 478 or in part, for bad behavior or for violation of the institutional rules. N.Y.Correction Law § 803(1).Rodriguez was charged in two separate disciplinary action reports with possession of contraband material in his cell. The deputy warden determined that, as punishment, 120 days of Rodriguez' earned good-conduct-time credits should be canceled, and that Rodriguez should be placed in segregation, where he remained for more than 40 days. In the "Remarks" section of the deputy warden's determination was a statement that Rodriguez had refused to disclose how he had managed to obtain possession of the items in question.Rodriguez then filed in the District Court a complaint pursuant to § 1983, combined with a petition for a writ of habeas corpus. He asserted that he was not really being punished for possession of the contraband material, but for refusal to disclose how he had obtained it, and that he had received no notice or hearing on the charges for which he had ostensibly been punished. Thus, he contended that he had been deprived of his good conduct time credits without due process of law.After a hearing, the District Court held that Rodriguez' suit had properly been brought under the Civil Rights Act, that the habeas corpus claim was "merely a proper adjunct to insure full relief if [Rodriguez] prevails in the dominant civil rights claim," 307 F. Supp. 627, 628-629 (1969), and that, therefore, Rodriguez was not required to exhaust his state remedies, as he would have had to do if he had simply filed a petition for habeas corpus. On the merits, the District Court agreed with Rodriguez that the questioning of him by prison officials related solely to the issue of how he had obtained the contraband materials, and that he had been ostensibly punished for something different -- possession of the materials -- on which he had had no notice or opportunity to answer. This, the court found, denied him due process Page 411 U. S. 479 of law, particularly in light of the fact that the prison regulations prescribed no penalty for failure to inform. The District Court further found that the Prison Commutation Board had failed to forward to the Commissioner of Correction written reasons for the cancellation of Rodriguez' good conduct time, as required by former N.Y.Correction Law § 236, and that this, too, had deprived Rodriguez of due process and equal protection of the laws. Accordingly, the court declared the cancellation of 120 days' good behavior time credits unconstitutional, and directed the Commissioner of Correction to restore those credits to Rodriguez. Since, at that time, Rodriguez' conditional release date had already passed, the District Court's order entitled him to immediate release from prison on parole.The Court of Appeals reversed this decision by a divided vote. The appellate court not only disagreed with the District Court on the merits, but also held that Rodriguez' action was really a petition for habeas corpus, and, as such, should not have been entertained by the District Court because Rodriguez had not exhausted his state remedies in accordance with § 2254(b). As the Court of Appeals put it:"The present application, since it seeks release from custody, is, in fact, an application for habeas corpus. '[R]elease from penal custody is not an available remedy under the Civil Rights Act.' Peinado v. Adult Authority of Dept. of Corrections, 405 F.2d 1185, 1186 (9th Cir.), cert. denied, 395 U.S. 968 (1969). In Johnson v. Walker, 317 F.2d 418, 419-420 (5th Cir.1963) the court said:""Use of the Civil Rights Statutes to secure release of persons imprisoned by State Courts would thus have the effect of repealing 28 U.S.C. § 2254; of course, such was not the intent of Congress."Rodriguez v. McGinnis, 451 F.2d 730, 731 (1971). Page 411 U. S. 480 The judgment of the Court of Appeals was subsequently set aside, and the case was reheard en banc, as explained below.The respondent Katzoff, who was serving a sentence of one to three years in prison following his conviction for possession of a dangerous weapon, also elected to participate in New York's conditional release program. Disciplinary charges were brought against him for making derogatory comments about prison officials in his diary. As punishment, the deputy warden deprived him of 30 days' good conduct time for these diary entries and confined him in segregation for 57 days. Katzoff ultimately lost 50 days' good behavior time credits -- 30 days directly and 20 additional days because he was unable to earn any good conduct time while in segregation. He brought a civil rights complaint under § 1983, joined with a petition for habeas corpus, in Federal District Court, alleging that the prison officials had acted unconstitutionally.The District Court held, in an unreported opinion, that Katzoff's failure to exhaust state remedies was no bar to his suit, since it was a civil rights action and the petition for a writ of habeas corpus was only an incidental adjunct to assure enforcement of the judgment. On the merits, the District Court found that there was no prison regulation against the keeping of a diary; that punishment for entries in a private diary violated Katzoff's constitutional rights to due process, equal protection, and freedom of thought; and that confining Katzoff in segregation for this offense constituted cruel and unusual punishment. The court, therefore, ordered that the 50 days' good behavior time credits be restored to Katzoff, and, since this restoration entitled him to immediate release on parole, the court ordered such release.The Court of Appeals reversed by a divided vote. Without reaching the merits of Katzoff's complaint, the appellate court held that his action was, in essence, an Page 411 U. S. 481 application for habeas corpus, since it sought and obtained his immediate release from custody, and that, therefore, his complaint should have been dismissed because Katzoff had sought no relief whatever in the state courts, and had made no showing that an adequate state remedy was unavailable. United States ex rel. Katzoff v. McGinnis, 441 F.2d 558 (1971). This judgment of the Court of Appeals was subsequently set aside, and the case was reheard en banc, as explained below.The respondent Kritasky's case is similar. While serving a prison sentence of 15 to 18 years under a state court conviction for armed robbery, he was charged by prison officials with being a leader in a prison-wide protest demonstration and with advocating insurrection during that demonstration. When brought before the warden and asked how he would plead, Kritasky stated "Not guilty." The warden then immediately and summarily imposed punishment on him -- deprivation of 545 days' good conduct time credits, and confinement in segregation for four and one-half months, where he lost another 45 days' good time.Kritasky subsequently filed a civil rights action, combined with a petition for habeas corpus, in Federal District Court, alleging that his summary punishment had deprived him of his good time credits without due process of law. The District Court found Kritasky's complaint to be a proper civil rights action, and went on to rule that he had been denied due process by the imposition of summary punishment and by the failure of the Prison Commutation Board to file with the Commissioner written reasons for cancellation of Kritasky's good time credits, as required by New York law. 313 F. Supp. 1247 (1970). Accordingly, the court ordered restoration of the 590 days' good conduct time credits, which entitled Kritasky to immediate release on parole. Page 411 U. S. 482An appeal was argued before a panel of the Court of Appeals; but, before decision, that Court ordered the case to be reheard en banc, together with the Rodriguez and Katzof cases. After rehearing en banc of the three now-consolidated cases, the Court of Appeals, with three dissents, affirmed the judgments of the District Court in all of the cases"upon consideration of the merits and upon the authority of Wilwording v. Swenson, [404 U.S. 249] decided by the Supreme Court of the United States on December 14, 1971."Rodriguez v. McGinnis, 456 F.2d 79, 80 (1972). Although eight judges wrote separate opinions, it is clear that the majority of the Court relied primarily on our opinion in the Wilwording case, holding that complaints of state prisoners relating to the conditions of their confinement were cognizable either in federal habeas corpus or under the Civil Rights Act, and that as civil rights actions they were not subject to any requirement of exhaustion of state remedies.We granted certiorari sub nom. Oswald v. Rodriguez, 407 U.S. 919, in order to consider the bearing of the Wilwording decision upon the situation before us -- where state prisoners have challenged the actual duration of their confinement on the ground that they have been unconstitutionally deprived of good conduct time credits, and where restoration of those credits would result in their immediate release from prison or in shortening the length of their confinement. In that context, the question whether a state prisoner may bring an action for equitable relief pursuant to § 1983, or whether he is limited to the specific remedy of habeas corpus, presents an unresolved and important problem in the administration of federal justice.The problem involves the interrelationship of two important federal laws. The relevant habeas corpus statutes are 28 U.S.C. §§ 2241 and 2254. Section 2241(c) Page 411 U. S. 483 provides that"[t]he writ of habeas corpus shall not extend to a prisoner unless . . . (3) [h]e is in custody in violation of the Constitution or laws or treaties of the United States. . . ."Section 2254 provides in pertinent part:"(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.""(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.""(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented. [Footnote 1]"The Civil Rights Act, 42 U.S.C. § 1983, provides:"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen . . . or other person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the Page 411 U. S. 484 party injured in an action at law, suit in equity, or other proper proceeding for redress."It is clear, not only from the language of§ 2241(c)(3) and 2254(a) but also from the common law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody. By the end of the 16th century, there were in England several forms of habeas corpus, of which the most important, and the only one with which we are here concerned, was habeas corpus ad subjiciendum -- the writ used to "inquir[e] into illegal detention with a view to an order releasing the petitioner." Fay v. Noia, 372 U. S. 391, 372 U. S. 399 n. 5 (1963). [Footnote 2] Whether the petitioner had been placed in physical confinement by executive direction alone, [Footnote 3] or by order of a court, [Footnote 4] or even by private parties, [Footnote 5] habeas corpus was the proper means of challenging that confinement and seeking release. Indeed, in 1670, the Chief Justice of the Common Pleas was able to say, in ordering the immediate Page 411 U. S. 485 discharge of a juror who had been jailed by a trial judge for bringing in a verdict of not guilty, that"[t]he writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it."Bushell's Case, Vaughan 135, 136, 124 Eng.Rep. 1006, 1007.By the time the American Colonies achieved independence, the use of habeas corpus to secure release from unlawful physical confinement, whether judicially imposed or not, was thus an integral part of our common law heritage. The writ was given explicit recognition in the Suspension Clause of the Constitution, Art. I, § 9, cl. 2; [Footnote 6] was incorporated in the first congressional grant of jurisdiction to the federal courts, Act of Sept. 24, 1789, c. 20, § 14, 1 Stat. 81-82; and was early recognized by this Court as a "great constitutional privilege." Ex parte Bollman, 4 Cranch 75, 8 U. S. 95 (1807). See Fay v. Noia, supra, at 372 U. S. 399-415.The original view of a habeas corpus attack upon detention under a judicial order was a limited one. T he relevant inquiry was confined to determining simply whether or not the committing court had been possessed of jurisdiction. E.g., 20 U. S. 7 Wheat. 38 (1822); Ex parte Watkins, 3 Pet.193 (1830). But, over the years, the writ of habeas corpus evolved as a remedy available to effect discharge from any confinement contrary to the Constitution or fundamental law, even though imposed pursuant to conviction by a court of competent jurisdiction. See Ex parte Lange, 18 Wall. 163 (1874); Ex parte Siebold, 100 U. S. 371 (1880); Ex parte Wilson, 114 U. S. 417 (1885); Moore v. Dempsey, 261 U. S. 86 (1923); Johnson. v. Zerbst, 304 U.S. Page 411 U. S. 486 458 (1938); and Waley v. Johnston, 316 U. S. 101 (1942). See also Fay v. Noia, supra, at 372 U. S. 405-409, and cases cited at 372 U. S. 409 n. 17. Thus, whether the petitioner's challenge to his custody is that the statute under which he stands convicted is unconstitutional, as in Ex parte Siebold, supra; that he has been imprisoned prior to trial on account of a defective indictment against him, as in Ex parte Royall, 117 U. S. 241 (1886); that he is unlawfully confined in the wrong institution, as in In re Bonner, 151 U. S. 242 (1894), and Humphrey v. Cady, 40 U. S. 504 (1972); that he was denied his constitutional rights at trial, as in Johnson v. Zerbst, supra; that his guilty plea was invalid, as in Von Moltke v. Gillies, 332 U. S. 708 (1948); that he is being unlawfully detained by the Executive or the military, as in Parisi v. Davidson, 405 U. S. 34 (1972); or that his parole was unlawfully revoked, causing him to be reincarcerated in prison, as in Morrissey v. Brewer, 408 U. S. 471 (1972) -- in each case, his grievance is that he is being unlawfully subjected to physical restraint, and in each case, habeas corpus has been accepted as the specific instrument to obtain release from such confinement. [Footnote 7] Page 411 U. S. 487In the case before us, the respondents' suits in the District Court fell squarely within this traditional scope of habeas corpus. They alleged that the deprivation of their good conduct time credits was causing or would cause them to be in illegal physical confinement, i.e., that, once their conditional release date had passed, any further detention of them in prison was unlawful; and they sought restoration of those good time credits, which, by the time the District Court ruled on their petitions, meant their immediate release from physical custody.Even if the restoration of the respondents' credits would not have resulted in their immediate release, but only in shortening the length of their actual confinement in prison, habeas corpus would have been their appropriate remedy. For recent cases have established that habeas corpus relief is not limited to immediate release from illegal custody, but that the writ is available as well to attack future confinement and obtain future releases. In Peyton v. Rowe, 391 U. S. 54 (1968), the Court held that a prisoner may attack on habeas the second of two consecutive sentences while still serving the first. The Court pointed out that the federal habeas corpus statute"does not deny the federal courts power to fashion appropriate relief other than immediate release. Since 1874, the habeas corpus statute has directed the courts to determine the facts and dispose of the case summarily, 'as law and justice require.' Rev.Stat. § 761 (1874), superseded by 28 U.S.C. § 2243."Id. at 391 U. S. 66-67. See also Walker v. Wainwright, 390 U. S. 335 (1968); Carafas v. LaVallee, 391 U. S. 234, 391 U. S. 239 (1968); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U. S. 484 (1973). So, even if restoration of respondents' good time credits had merely shortened the length of their confinement, rather than required immediate discharge from that confinement, their suits would still have been within the core of habeas corpus in attacking the very duration of their physical Page 411 U. S. 488 confinement itself. It is beyond doubt, then, that the respondents could have sought and obtained fully effective relief through federal habeas corpus proceedings. [Footnote 8]Although conceding that they could have proceeded by way of habeas corpus, the respondents argue that the Court of Appeals was correct in holding that they were nonetheless entitled to bring their suits under § 1983 so as to avoid the necessity of first seeking relief in a state forum. Pointing to the broad language of § 1983, [Footnote 9] they argue that, since their complaints plainly came within the literal terms of that statute, there is no justifiable reason to exclude them from the broad remedial protection provided by that law. According to the respondents, state prisoners seeking relief under the Civil Rights Act Page 411 U. S. 489 should be treated no differently from any other civil rights plaintiffs, when the language of the Act clearly covers their causes of action.The broad language of 1983, however, is not conclusive of the issue before us. The statute is a general one, and, despite the literal applicability of its terms, the question remains whether the specific federal habeas corpus statute, explicitly and historically designed to provide the means for a state prisoner to attack the validity of his confinement, must be understood to be the exclusive remedy available in a situation like this where it so clearly applies. The respondents' counsel acknowledged at oral argument that a state prisoner challenging his underlying conviction and sentence on federal constitutional grounds in a federal court is limited to habeas corpus. It was conceded that he cannot bring a § 1983 action, even though the literal terms of § 1983 might seem to cover such a challenge, because Congress has passed a more specific act to cover that situation, and, in doing so, has provided that a state prisoner challenging his conviction must first seek relief in a state forum, if a state remedy is available. It is clear to us that the result must be the same in the case of a state prisoner's challenge to the fact or duration of his confinement, based, as here, upon the alleged unconstitutionality of state administrative action. Such a challenge is just as close to the core of habeas corpus as an attack on the prisoner's conviction, for it goes directly to the constitutionality of his physical confinement itself, and seeks either immediate release from that confinement or the shortening of its duration.In amending the habeas corpus laws in 1948, Congress clearly required exhaustion of adequate state remedies as a condition precedent to the invocation of federal judicial relief under those laws. It would wholly frustrate explicit congressional intent to hold that the respondents in the present case could evade this requirement by the Page 411 U. S. 490 simple expedient of putting a different label on their pleadings. In short, Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983.The policy reasons underlying the habeas corpus statute support this conclusion. The respondents concede that the reason why only habeas corpus can be used to challenge a state prisoner's underlying conviction is the strong policy requiring exhaustion of state remedies in that situation -- to avoid the unnecessary friction between the federal and state court systems that would result if a lower federal court upset a state court conviction without first giving the state court system an opportunity to correct its own constitutional errors. Fay v. Noia, supra, at 372 U. S. 419-420. But they argue that this concern applies only to federal interference with state court convictions; and to support this argument, they quote from Ex parte Royall, supra, the case that first mandated exhaustion of state remedies as a precondition to federal habeas corpus:"The injunction to hear the case summarily, and thereupon 'to dispose of the party as law and justice require,' does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution."117 U.S. at 117 U. S. 251 (emphasis added).In the respondents' view, the whole purpose of the exhaustion requirement, now codified in § 2254(b), is to Page 411 U. S. 491 give state courts the first chance at remedying their own mistakes, and thereby to avoid "the unseemly spectacle of federal district courts trying the regularity of proceedings had in courts of coordinate jurisdiction." Parker, Limiting the Abuse of Habeas Corpus, 8 F.R.D. 171, 172-173 (1948) (emphasis added). This policy, the respondents contend, does not apply when the challenge is not to the action of a state court, but, as here, to the action of a state administrative body. In that situation, they say, the concern with avoiding unnecessary interference by one court with the courts of another sovereignty with concurrent powers, and the importance of giving state courts the first opportunity to correct constitutional errors made by them, do not apply, and hence the purpose of the exhaustion requirement of the habeas corpus statute is inapplicable.We cannot agree. The respondents, we think, view the reasons for the exhaustion requirement of § 2254(b) far too narrowly. The rule of exhaustion in federal habeas corpus actions is rooted in considerations of federal state comity. That principle was defined in Younger v. Harris, 401 U. S. 37, 401 U. S. 44 (1971), as "a proper respect for state functions," and it has as much relevance in areas of particular state administrative concern as it does where state judicial action is being attacked. That comity considerations are not limited to challenges to the validity of state court convictions is evidenced by cases such as Morrissey v. Brewer, supra, where the petitioners' habeas challenge was to a state administrative decision to revoke their parole, and Braden v. 30th Judicial Circuit Court of Kentucky, supra, where the petitioner's habeas attack was on the failure of state prosecutorial authorities to afford him a speedy trial.It is difficult to imagine an activity in which a State has a stronger interest, or on that is more intricately bound up with state laws, regulations, and procedures, Page 411 U. S. 492 than the administration of its prisons. The relationship of state prisoners and the state officers who supervise their confinement is far more intimate than that of a State and a private citizen. For state prisoners, eating, sleeping, dressing, washing, working, and playing are all done under the watchful eye of the State, and so the possibilities for litigation under the Fourteenth Amendment are boundless. What for a private citizen would be a dispute with his landlord, with his employer, with his tailor, with his neighbor, or with his banker becomes, for the prisoner, a dispute with the State. Since these 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. Moreover, because most potential litigation involving state prisoners arises on a day-to-day basis, it is most efficiently and properly handled by the state administrative bodies and state courts, which are, for the most part, familiar with the grievances of state prisoners and in a better physical and practical position to deal with those grievances. In New York, for example, state judges sit on a regular basis at all but one of the State's correctional facilities, and thus inmates may present their grievances to a court at the place of their confinement, where the relevant records are available and where potential witnesses are located. The strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons. [Footnote 10] Page 411 U. S. 493Requiring exhaustion in situations like that before us means, of course, that a prisoner's state remedy must be adequate and available, as indeed § 2254(b) provides. The respondents in this case concede that New York provided them with an adequate remedy for the restoration of their good time credits, through § 79-c of the New York Civil Rights Law, which explicitly provides for injunctive relief to a state prisoner "for improper treatment where such treatment constitutes a violation of his constitutional rights." (Supp. 1972-1973.)But while conceding the availability in the New York courts of an opportunity for equitable relief, the respondents contend that confining state prisoners to federal habeas corpus, after first exhausting state remedies, could deprive those prisoners of any damages remedy to which they might be entitled for their mistreatment, since damages are not available in federal habeas corpus proceedings, and New York provides no damages remedy at all for state prisoners. In the respondents' view, if habeas corpus is the exclusive federal remedy for a state prisoner attacking his confinement, damages might never be obtained, at least where the State makes no provision for them. They argue that, even if such a prisoner were to bring a subsequent federal civil rights action for damages, that action could be barred by principles of Page 411 U. S. 494 res judicata where the state courts had previously made an adverse determination of his underlying claim, even though a federal habeas court had later granted him relief on habeas corpus.The answer to this contention is that the respondents here sought no damages, but only equitable relief -- restoration of their good time credits -- and our holding today is limited to that situation. If a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release -- the traditional purpose of habeas corpus. In the case of a damages claim, habeas corpus is not an appropriate or available federal remedy. Accordingly, as petitioners themselves concede, a damages action by a state prisoner could be brought under the Civil Rights Act in federal court without any requirement of prior exhaustion of state remedies. Cf. Ray v. Fritz, 468 F.2d 586 (CA2 1972).The respondents next argue that to require exhaustion of state remedies in a case such as the one at bar would deprive a state prisoner of the speedy review of his grievance which is so often essential to any effective redress. They contend that, if, prior to bringing an application for federal habeas corpus, a prisoner must exhaust state administrative remedies and then state judicial remedies through all available appeals, a very significant period of time might elapse before the prisoner could ever get into federal court. By that time, no matter how swift and efficient federal habeas corpus relief might be, the prisoner might well have suffered irreparable injury and his grievances might no longer be remediable.It is true that exhaustion of state remedies takes time. But there is no reason to assume that state prison administrators Page 411 U. S. 495 or state courts will not act expeditiously. Indeed, new regulations established by the New York Department of Correctional Services provide for administrative review of a prisoner's record in the institution shortly before the earliest possible release date, 7 N.Y.Codes, Rules & Regulations § 261.3(b), [Footnote 11] and, as previously noted, state judges in New York actually sit in the institutions to hear prisoner complaints. Moreover, once a state prisoner arrives in federal court with his petition for habeas corpus, the federal habeas statute provides for a swift, flexible, and summary determination of his claim. 28 U.S.C. § 2243. [Footnote 12] See also Harris v. Nelson, 394 U. S. 286 (1969); and Hensley Page 411 U. S. 496 v. Municipal Court, ante at 411 U. S. 349-350. By contrast, the filing of a complaint pursuant to § 1983 in federal court initiates an original plenary civil action, governed by the full panoply of the Federal Rules of Civil Procedure. That such a proceeding, with its discovery rules and other procedural formalities, can take a significant amount of time, very frequently longer than a federal habeas corpus proceeding, is demonstrated by the respondents' actions in the present case. Although both Rodriguez and Kritasky initiated their actions before their conditional release dates, the District Court did not reach its decisions until three and 10 months later, respectively -- in both cases, well after the conditional release dates had passed. Only in Katzoff's case was there a speedy determination, and his action was not initiated until after his alleged release date.In any event, the respondents' time argument would logically extend to a state prisoner who challenges the constitutionality of a conviction that carried a relatively Page 411 U. S. 497 short sentence; and yet, such a prisoner is clearly covered by § 2254(b). Arguably, in either case, if the prisoner could make out a showing that, because of the time factor, his otherwise adequate state remedy would be inadequate, a federal court might entertain his habeas corpus application immediately, under § 2254(b)'s language relating to "the existence of circumstances rendering such [state] process ineffective to protect the rights of the prisoner." But we need not reach that issue here.Principles of res judicata are, of course, not wholly applicable to habeas corpus proceedings. 28 U.S.C. § 225(d). See Salinger v. Loisel, 265 U. S. 224, 265 U. S. 230 (1924). Hence, a state prisoner in the respondents' situation who has been denied relief in the state courts is not precluded from seeking habeas relief on the same claims in federal court. On the other hand, res judicata has been held to be fully applicable to a civil rights action brought under § 1983. Coogan v. Cincinnati Bar Assn., 431 F.2d 1209, 1211 (CA6 1970); Jenson v. Olson, 353 F.2d 825 (CA8 1965); Rhodes v. Meyer, 334 F.2d 709, 716 (CA8 1964); Goss v. Illinois, 312 F.2d 257 (CA7 1963). Accordingly, there would be an inevitable incentive for a state prisoner to proceed at once in federal court by way of a civil rights action, lest he lose his right to do so. This would have the unfortunate dual effect of denying the state prison administration and the state courts the opportunity to correct the errors committed in the State's own prisons, and of isolating those bodies from an understanding of and hospitality to the federal claims of state prisoners in situations such as those before us. [Footnote 13] Federal habeas corpus, on the other Page 411 U. S. 498 hand, serves the important function of allowing the State to deal with these peculiarly local problems on its own, while preserving for the state prisoner an expeditious federal forum for the vindication of his federally protected rights, if the State has denied redress.The respondents place a great deal of reliance on our recent decisions upholding the right of state prisoners to bring federal civil rights actions to challenge the conditions of their confinement. Cooper v. Pate, 378 U. S. 546 (1964); Houghton v. Shafer, 392 U. S. 639 (1968); Wilwording v. Swenson, 404 U. S. 249 (1971); Haines v. Kerner, 404 U. S. 519 (1972). But none of the state prisoners in those cases was challenging the fact or duration of his physical confinement itself, and none was seeking immediate release or a speedier release from that confinement -- the heart of habeas corpus. In Cooper, the prisoner alleged that, solely because of his religious beliefs, he had been denied permission to purchase certain religious publications and had been denied other privileges enjoyed by his fellow prisoners. In Houghton, the prisoner's contention was that prison authorities had violated the Constitution by confiscating legal materials which he had acquired for pursuing his appeal but which, in violation of prison rules, had been found in the possession of another prisoner. In Wilwording, the prisoners' complaints related solely to their living conditions and disciplinary measures while confined in maximum security. And in Haines, the prisoner claimed that prison officials had acted unconstitutionally by placing him in solitary confinement as a disciplinary measure, and he sought damages for claimed physical injuries sustained while so segregated. It is clear, then, that, in Page 411 U. S. 499 all those cases, the prisoners' claims related solely to the States' alleged unconstitutional treatment of them while in confinement. None sought, as did the respondents here, to challenge the very fact or duration of the confinement itself. Those cases, therefore, merely establish that a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody. Upon that understanding, we reaffirm those holdings. Cf. Humphrey v. Cady, 405 U.S. at 405 U. S. 516-517, n. 18. [Footnote 14]This is not to say that habeas corpus may not also be available to challenge such prison conditions. See Johnson v. Avery, 393 U. S. 483 (1969); Wilwording v. Swenson, supra, at 404 U. S. 251. When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal. See Note, Developments in the Law -- Habeas Corpus, 83 Harv.L.Rev. 1038, 1084 (1970). [Footnote 15] Page 411 U. S. 500But we need not, in this case, explore the appropriate limits of habeas corpus as an alternative remedy to a proper action under § 1983. That question is not before us. What is involved here is the extent to which § 1983 is a permissible alternative to the traditional remedy of habeas corpus. Upon that question, we hold today that, when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus. Accordingly, we reverse the judgment before us.It is so ordered

U.S. Supreme CourtPreiser v. Rodriguez, 411 U.S. 475 (1973)Preiser v. RodriguezNo. 71-1369Argued January 9, 1973Decided May 7, 1973411 U.S. 475SyllabusRespondents were state prisoners who had elected to participate in New York's conditional release program, by which a prisoner serving an indeterminate sentence may earn up to 10 days per month good behavior time credits toward reduction of his maximum sentence. For in-prison disciplinary reasons, the good time credits of each were canceled. Each respondent brought a civil rights action under 42 U.S.C. § 1983, in conjunction with a habeas corpus action, claiming that his credits were unconstitutionally canceled and seeking their restoration. The District Court in each case viewed the habeas corpus claim merely as an adjunct to the civil rights action, thus obviating the need for exhaustion of state remedies, and, on the merits, ruled for the respondent, a ruling that, in each case, entitled him to immediate release on parole. The Court of Appeals consolidated the actions and affirmed.Held: When a state prisoner challenges the fact or duration of his physical imprisonment and, by way of relief, seeks a determination that he is entitled to immediate release or a speedier release, his sole federal remedy is a writ of habeas corpus. Pp. 411 U. S. 488-499.(a) Although the broad language of § 1983 seems literally to apply, Congress' enactment of the specific federal habeas corpus statute, with its requirement that a state prisoner exhaust state remedies, was intended to provide the exclusive means of relief in this type of situation. Pp. 411 U. S. 488-490.(b) The policy of exhaustion in federal habeas corpus actions, which is rooted in considerations of federal state comity, has as much relevance in an attack on the actions of the state prison administration as it does in an attack on the actions of a state court; and that policy applies here, where respondents sought no damages, but only a ruling that they were entitled to immediate release or a speedier release. Pp. 411 U. S. 490-494.(c) Recent decisions of the Court relied on by respondents, upholding state prisoners' civil rights actions, are inapposite to the situation here, for the prisoners in those cases challenged only Page 411 U. S. 476 the conditions of their confinement, not the fact or duration of that confinement itself. Pp. 411 U. S. 498-499.456 F.2d 79, reversed.STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., .joined. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 411 U. S. 500.

2002_02-5664

Syllabuscourts typically address involuntary medical treatment as a civil matter. If a court decides that medication cannot be authorized on alternative grounds, its findings will help to inform expert opinion and judicial decisionmaking in respect to a request to administer drugs for trial competence purposes. Pp. 181-183.3. The Eighth Circuit erred in approving forced medication solely to render Sell competent to stand trial. Because that court and the District Court held the Magistrate's dangerousness finding clearly erroneous, this Court assumes that Sell was not dangerous. And on that hypothetical assumption, the Eighth Circuit erred in reaching its conclusion. For one thing, the Magistrate did not find forced medication legally justified on trial competence grounds alone. Moreover, the experts at the Magistrate's hearing focused mainly on dangerousness. The failure to focus on trial competence could well have mattered, for this Court cannot tell whether the medication's side effects were likely to undermine the fairness of Sell's trial, a question not necessarily relevant when dangerousness is primarily at issue. Finally, the lower courts did not consider that Sell has been confined at the Medical Center for a long time, and that his refusal to be medicated might result in further lengthy confinement. Those factors, the first because a defendant may receive credit toward a sentence for time served and the second because it reduces the likelihood of the defendant's committing future crimes, moderate the importance of the governmental interest in prosecution. The Government may pursue its forced medication request on the grounds discussed in this Court's opinion but should do so based on current circumstances, since Sell's condition may have changed over time. Pp. 183-186.282 F.3d 560, vacated and remanded.BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed a dissenting opinion, in which O'CONNOR and THOMAS, JJ., joined, post, p. 186.Barry A. Short, by appointment of the Court, 537 U. S. 1087, argued the cause for petitioner. With him on the briefs were Neal F. Perryman, Mark N. Light, Norman S. London, and Lee T. Lawless.Deputy Solicitor General Dreeben argued the cause for the United States. With him on the briefs were Solicitor169General Olson, Assistant Attorney General Chertoff, Lisa Schiavo Blatt, and Joseph C. Wyderko. *JUSTICE BREYER delivered the opinion of the Court.The question presented is whether the Constitution permits the Government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant-in order to render that defendant competent to stand trial for serious, but nonviolent, crimes. We conclude that the Constitution allows the Government to administer those drugs, even against the defendant's will, in limited circumstances, i. e., upon satisfaction of conditions that we shall describe. Because the Court of Appeals did not find that the requisite circumstances existed in this case, we vacate its judgment.I APetitioner Charles Sell, once a practicing dentist, has a long and unfortunate history of mental illness. In September 1982, after telling doctors that the gold he used for fillings had been contaminated by communists, Sell was hospitalized, treated with antipsychotic medication, and subsequently discharged. App.146. In June 1984, Sell called the police to say that a leopard was outside his office boarding a bus, and he then asked the police to shoot him. Id., at 148; Record, Forensic Report, p. 1 (June 20, 1997) (Sealed). Sell*Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union of Eastern Missouri by Peter A. Joy; for the Center for Cognitive Liberty & Ethics by Richard Glen Boire; for the Drug Policy Alliance by David T. Goldberg and Daniel N. Abrahamson; for the National Association of Criminal Defense Lawyers by Burton H. Shostak; for the New York State Association of Criminal Defense Lawyers by Joshua L. Dratel; and for the Rutherford Institute by John W Whitehead and Steven H. Aden.Briefs of amici curiae were filed for the American Psychological Association by David W Ogden, Paul R. Q. Wolfson, and Nathalie F. P. Gilfoyle; and for the American Psychiatric Association et al. by Richard G. Taranto.170was again hospitalized and subsequently released. On various occasions, he complained that public officials, for example, a State Governor and a police chief, were trying to kill him. Id., at 4. In April 1997, he told law enforcement personnel that he "spoke to God last night," and that "God told me every [Federal Bureau of Investigation] person I kill, a soul will be saved." Id., at 1.In May 1997, the Government charged Sell with submitting fictitious insurance claims for payment. See 18 U. S. c. § 1035(a)(2). A Federal Magistrate Judge (Magistrate), after ordering a psychiatric examination, found Sell "currently competent," but noted that Sell might experience "a psychotic episode" in the future. App. 321. The Magistrate released Sell on bail. A grand jury later produced a superseding indictment charging Sell and his wife with 56 counts of mail fraud, 6 counts of Medicaid fraud, and 1 count of money laundering. Id., at 12-22.In early 1998, the Government claimed that Sell had sought to intimidate a witness. The Magistrate held a bail revocation hearing. Sell's behavior at his initial appearance was, in the judge's words, " 'totally out of control,'" involving "screaming and shouting," the use of "personal insults" and "racial epithets," and spitting "in the judge's face." Id., at 322. A psychiatrist reported that Sell could not sleep because he expected the Federal Bureau of Investigation (FBI) to "'come busting through the door,'" and concluded that Sell's condition had worsened. Ibid. After considering that report and other testimony, the Magistrate revoked Sell's bail.In April 1998, the grand jury issued a new indictment charging Sell with attempting to murder the FBI agent who had arrested him and a former employee who planned to testify against him in the fraud case. Id., at 23-29. The attempted murder and fraud cases were joined for trial.In early 1999, Sell asked the Magistrate to reconsider his competence to stand trial. The Magistrate sent Sell to the171United States Medical Center for Federal Prisoners (Medical Center) at Springfield, Missouri, for examination. Subsequently the Magistrate found that Sell was "mentally incompetent to stand trial." Id., at 323. He ordered Sell to "be hospitalized for treatment" at the Medical Center for up to four months, "to determine whether there was a substantial probability that [Sell] would attain the capacity to allow his trial to proceed." Ibid.Two months later, Medical Center staff recommended that Sell take antipsychotic medication. Sell refused to do so. The staff sought permission to administer the medication against Sell's will. That effort is the subject of the present proceedings.BWe here review the last of five hierarchically ordered lower court and Medical Center determinations. First, in June 1999, Medical Center staff sought permission from institutional authorities to administer antipsychotic drugs to Sell involuntarily. A reviewing psychiatrist held a hearing and considered Sell's prior history; Sell's current persecutional beliefs (for example, that Government officials were trying to suppress his knowledge about events in Waco, Texas, and had sent him to Alaska to silence him); staff medical opinions (for example, that "Sell's symptoms point to a diagnosis of Delusional Disorder but ... there well may be an underlying Schizophrenic Process"); staff medical concerns (for example, about "the persistence of Dr. Sell's belief that the Courts, FBI, and federal government in general are against him"); an outside medical expert's opinion (that Sell suffered only from delusional disorder, which, in that expert's view, "medication rarely helps"); and Sell's own views, as well as those of other laypersons who know him (to the effect that he did not suffer from a serious mental illness). Id., at 147-150.The reviewing psychiatrist then authorized involuntary administration of the drugs, both (1) because Sell was "men-172tally ill and dangerous, and medication is necessary to treat the mental illness," and (2) so that Sell would "become competent for trial." Id., at 145. The reviewing psychiatrist added that he considered Sell "dangerous based on threats and delusions if outside, but not necessarily in[side] prison" and that Sell was "[a]ble to function" in prison in the "open population." Id., at 144.Second, the Medical Center administratively reviewed the determination of its reviewing psychiatrist. A Bureau of Prisons official considered the evidence that had been presented at the initial hearing, referred to Sell's delusions, noted differences of professional opinion as to proper classification and treatment, and concluded that antipsychotic medication represents the medical intervention "most likely" to "ameliorate" Sell's symptoms; that other "less restrictive interventions" are "unlikely" to work; and that Sell's "pervasive belief" that he was "being targeted for nefarious actions by various governmental ... parties," along with the "current charges of conspiracy to commit murder," made Sell "a potential risk to the safety of one or more others in the community." Id., at 154-155. The reviewing official "upheld" the "hearing officer's decision that [Sell] would benefit from the utilization of anti-psychotic medication." Id., at 157.Third, in July 1999, Sell filed a court motion contesting the Medical Center's right involuntarily to administer antipsychotic drugs. In September 1999, the Magistrate who had ordered Sell sent to the Medical Center held a hearing. The evidence introduced at the hearing for the most part replicated the evidence introduced at the administrative hearing, with two exceptions. First, the witnesses explored the question of the medication's effectiveness more thoroughly. Second, Medical Center doctors testified about an incident that took place at the Medical Center after the administrative proceedings were completed. In July 1999, Sell had approached one of the Medical Center's nurses, sug-173gested that he was in love with her, criticized her for having nothing to do with him, and, when told that his behavior was inappropriate, added" 'I can't help it.'" Id., at 168-170, 325. He subsequently made remarks or acted in ways indicating that this kind of conduct would continue. The Medical Center doctors testified that, given Sell's prior behavior, diagnosis, and current beliefs, boundary-breaching incidents of this sort were not harmless and, when coupled with Sell's inability or unwillingness to desist, indicated that he was a safety risk even within the institution. They added that he had been moved to a locked cell.In August 2000, the Magistrate found that "the government has made a substantial and very strong showing that Dr. Sell is a danger to himself and others at the institution in which he is currently incarcerated"; that "the government has shown that anti-psychotic medication is the only way to render him less dangerous"; that newer drugs and/or changing drugs will "ameliorat[eJ" any "serious side effects"; that "the benefits to Dr. Sell ... far outweigh any risks"; and that "there is a substantial probability that" the drugs will "retur[nJ" Sell "to competency." Id., at 333-334. The Magistrate concluded that "the government has shown in as strong a manner as possible, that anti-psychotic medications are the only way to render the defendant not dangerous and competent to stand triaL" Id., at 335. The Magistrate issued an order authorizing the involuntary administration of antipsychotic drugs to Sell, id., at 331, but stayed that order to allow Sell to appeal the matter to the Federal District Court, id., at 337.Fourth, the District Court reviewed the record and, in April 2001, issued an opinion. The court addressed the Magistrate's finding "that defendant presents a danger to himself or others sufficient" to warrant involuntary administration of antipsychotic drugs. Id., at 349. After noting that Sell subsequently had "been returned to an open ward," the District Court held the Magistrate's "dangerousness"174finding "clearly erroneous." Id., at 349, and n. 5. The court limited its determination to Sell's "dangerousness at this time to himself and to those around him in his institutional context." Id., at 349 (emphasis in original).Nonetheless, the District Court affirmed the Magistrate's order permitting Sell's involuntary medication. The court wrote that "anti-psychotic drugs are medically appropriate," that "they represent the only viable hope of rendering defendant competent to stand trial," and that "administration of such drugs appears necessary to serve the government's compelling interest in obtaining an adjudication of defendant's guilt or innocence of numerous and serious charges" (including fraud and attempted murder). Id., at 354. The court added that it was "premature" to consider whether "the effects of medication might prejudice [Sell's] defense at trial." Id., at 351, 352. The Government and Sell both appealed.Fifth, in March 2002, a divided panel of the Court of Appeals affirmed the District Court's judgment. 282 F.3d 560 (CA8). The majority affirmed the District Court's determination that Sell was not dangerous. The majority noted that, according to the District Court, Sell's behavior at the Medical Center "amounted at most to an 'inappropriate familiarity and even infatuation' with a nurse." Id., at 565. The Court of Appeals agreed, "[u]pon review," that "the evidence does not support a finding that Sell posed a danger to himself or others at the Medical Center." Ibid.The Court of Appeals also affirmed the District Court's order requiring medication in order to render Sell competent to stand trial. Focusing solely on the serious fraud charges, the panel majority concluded that the "government has an essential interest in bringing a defendant to trial." Id., at 568. It added that the District Court "correctly concluded that there were no less intrusive means." Ibid. After reviewing the conflicting views of the experts, id., at 568-571, the panel majority found antipsychotic drug treatment "med-175ically appropriate" for Sell, id., at 571. It added that the "medical evidence presented indicated a reasonable probability that Sell will fairly be able to participate in his triaL" Id., at 572. One member of the panel dissented primarily on the ground that the fraud and money laundering charges were "not serious enough to warrant the forced medication of the defendant." Id., at 574 (opinion of Bye, J.).We granted certiorari to determine whether the Eighth Circuit "erred in rejecting" Sell's argument that "allowing the government to administer antipsychotic medication against his will solely to render him competent to stand trial for non-violent offenses," Brief for Petitioner i, violated the Constitution-in effect by improperly depriving Sell of an important "liberty" that the Constitution guarantees, Amdt.5.IIWe first examine whether the Eighth Circuit had jurisdiction to decide Sell's appeal. The District Court's judgment, from which Sell had appealed, was a pretrial order. That judgment affirmed a Magistrate's order requiring Sell involuntarily to receive medication. The Magistrate entered that order pursuant to an earlier delegation from the District Court of legal authority to conduct pretrial proceedings. App. 340; see 28 U. S. C. § 636(b)(1)(A). The order embodied legal conclusions related to the Medical Center's administrative efforts to medicate Sell; these efforts grew out of Sell's provisional commitment; and that provisional commitment took place pursuant to an earlier Magistrate's order seeking a medical determination about Sell's future competence to stand trial. Cf. Riggins v. Nevada, 504 U. S. 127 (1992) (reviewing, as part of criminal proceeding, trial court's denial of defendant's motion to discontinue medication); Stack v. Boyle, 342 U. S. 1, 6-7 (1951) (district court's denial of defendant's motion to reduce bail is part of criminal proceeding and is not reviewable in separate habeas action).176How was it possible for Sell to appeal from such an order?The law normally requires a defendant to wait until the end of the trial to obtain appellate review of a pretrial order. The relevant jurisdictional statute, 28 U. S. C. § 1291, authorizes federal courts of appeals to review "final decisions of the district courts." (Emphasis added.) And the term "final decision" normally refers to a final judgment, such as a judgment of guilt, that terminates a criminal proceeding.Nonetheless, there are exceptions to this rule. The Court has held that a preliminary or interim decision is appealable as a "collateral order" when it (1) "conclusively determine[s] the disputed question," (2) "resolve[s] an important issue completely separate from the merits of the action," and (3) is "effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 (1978). And this District Court order does appear to fall within the "collateral order" exception.The order (1) "conclusively determine[s] the disputed question," namely, whether Sell has a legal right to avoid forced medication. Ibid. The order also (2) "resolve[s] an important issue," for, as this Court's cases make clear, involuntary medical treatment raises questions of clear constitutional importance. Ibid. See Winston v. Lee, 470 U. S. 753, 759 (1985) ("A compelled surgical intrusion into an individual's body ... implicates expectations of privacy and security" of great magnitude); see also Riggins, supra, at 133-134; Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 278-279 (1990); Washington v. Harper, 494 U. S. 210, 221-222 (1990). At the same time, the basic issue-whether Sell must undergo medication against his will-is "completely separate from the merits of the action," i. e., whether Sell is guilty or innocent of the crimes charged. Coopers & Lybrand, 437 U. S., at 468. The issue is wholly separate as well from questions concerning trial procedures. Finally, the issue is (3) "effectively unreviewable on appeal from a final judgment." Ibid. By the time of trial Sell will have undergone177forced medication-the very harm that he seeks to avoid. He cannot undo that harm even if he is acquitted. Indeed, if he is acquitted, there will be no appeal through which he might obtain review. Cf. Stack, supra, at 6-7 (permitting appeal of order setting high bail as "collateral order"). These considerations, particularly those involving the severity of the intrusion and corresponding importance of the constitutional issue, readily distinguish Sell's case from the examples raised by the dissent. See post, at 191-192 (opinion of SCALIA, J.).We add that the question presented here, whether Sell has a legal right to avoid forced medication, perhaps in part because medication may make a trial unfair, differs from the question whether forced medication did make a trial unfair. The first question focuses upon the right to avoid administration of the drugs. What may happen at trial is relevant, but only as a prediction. See infra, at 181. The second question focuses upon the right to a fair trial. It asks what did happen as a result of having administered the medication. An ordinary appeal comes too late for a defendant to enforce the first right; an ordinary appeal permits vindication of the second.We conclude that the District Court order from which Sell appealed was an appealable "collateral order." The Eighth Circuit had jurisdiction to hear the appeal. And we consequently have jurisdiction to decide the question presented, whether involuntary medication violates Sell's constitutional rights.IIIWe turn now to the basic question presented: Does forced administration of antipsychotic drugs to render Sell competent to stand trial unconstitutionally deprive him of his "liberty" to reject medical treatment? U. S. Const., Arndt. 5 (Federal Government may not "depriv[e]" any person of "liberty ... without due process of law"). Two prior prece-178dents, Harper, supra, and Riggins v. Nevada, 504 U. S. 127 (1992), set forth the framework for determining the legal answer.In Harper, this Court recognized that an individual has a "significant" constitutionally protected "liberty interest" in "avoiding the unwanted administration of antipsychotic drugs." 494 U. S., at 221. The Court considered a state law authorizing forced administration of those drugs "to inmates who are ... gravely disabled or represent a significant danger to themselves or others." Id., at 226. The State had established "by a medical finding" that Harper, a mentally ill prison inmate, had "a mental disorder ... which is likely to cause harm if not treated." Id., at 222. The treatment decision had been made "by a psychiatrist," it had been approved by "a reviewing psychiatrist," and it "ordered" medication only because that was "in the prisoner's medical interests, given the legitimate needs of his institutional confinement." Ibid.The Court found that the State's interest in administering medication was "legitima[te]" and "importan[t]," id., at 225; and it held that "the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest," id., at 227. The Court concluded that, in the circumstances, the state law authorizing involuntary treatment amounted to a constitutionally permissible "accommodation between an inmate's liberty interest in avoiding the forced administration of antipsychotic drugs and the State's interests in providing appropriate medical treatment to reduce the danger that an inmate suffering from a serious mental disorder represents to himself or others." Id., at 236.In Riggins, the Court repeated that an individual has a constitutionally protected liberty "interest in avoiding involuntary administration of antipsychotic drugs"-an interest179that only an "essential" or "overriding" state interest might overcome. 504 U. S., at 134, 135. The Court suggested that, in principle, forced medication in order to render a defendant competent to stand trial for murder was constitutionally permissible. The Court, citing Harper, noted that the State "would have satisfied due process if the prosecution had demonstrated ... that treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins' own safety or the safety of others." 504 U. S., at 135 (emphasis added). And it said that the State "[s]imilarly ... might have been able to justify medically appropriate, involuntary treatment with the drug by establishing that it could not obtain an adjudication of Riggins' guilt or innocence" of the murder charge "by using less intrusive means." Ibid. (emphasis added). Because the trial court had permitted forced medication of Riggins without taking account of his "liberty interest," with a consequent possibility of trial prejudice, the Court reversed Riggins' conviction and remanded for further proceedings. Id., at 137-138. JUSTICE KENNEDY, concurring in the judgment, emphasized that antipsychotic drugs might have side effects that would interfere with the defendant's ability to receive a fair trial. Id., at 145 (finding forced medication likely justified only where State shows drugs would not significantly affect defendant's "behavior and demeanor").These two cases, Harper and Riggins, indicate that the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.180This standard will permit involuntary administration of drugs solely for trial competence purposes in certain instances. But those instances may be rare. That is because the standard says or fairly implies the following:First, a court must find that important governmental interests are at stake. The Government's interest in bringing to trial an individual accused of a serious crime is important. That is so whether the offense is a serious crime against the person or a serious crime against property. In both instances the Government seeks to protect through application of the criminal law the basic human need for security. See Riggins, supra, at 135-136 (" '[P]ower to bring an accused to trial is fundamental to a scheme of "ordered liberty" and prerequisite to social justice and peace'" (quoting Illinois v. Allen, 397 U. S. 337, 347 (1970) (Brennan, J., concurring))).Courts, however, must consider the facts of the individual case in evaluating the Government's interest in prosecution. Special circumstances may lessen the importance of that interest. The defendant's failure to take drugs voluntarily, for example, may mean lengthy confinement in an institution for the mentally ill-and that would diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime. We do not mean to suggest that civil commitment is a substitute for a criminal trial. The Government has a substantial interest in timely prosecution. And it may be difficult or impossible to try a defendant who regains competence after years of commitment during which memories may fade and evidence may be lost. The potential for future confinement affects, but does not totally undermine, the strength of the need for prosecution. The same is true of the possibility that the defendant has already been confined for a significant amount of time (for which he would receive credit toward any sentence ultimately imposed, see 18 U. S. C. § 3585(b)). Moreover, the Government has a concomitant, constitutionally essential interest in assuring that the defendant's trial is a fair one.181Second, the court must conclude that involuntary medication will significantly further those concomitant state interests. It must find that administration of the drugs is substantially likely to render the defendant competent to stand trial. At the same time, it must find that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair. See Riggins, 504 U. S., at 142-145 (KENNEDY, J., concurring in judgment).Third, the court must conclude that involuntary medication is necessary to further those interests. The court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results. Cf. Brief for American Psychological Association as Amicus Curiae 10-14 (nondrug therapies may be effective in restoring psychotic defendants to competence); but cf. Brief for American Psychiatric Association et al. as Amici Curiae 13-22 (alternative treatments for psychosis commonly not as effective as medication). And the court must consider less intrusive means for administering the drugs, e. g., a court order to the defendant backed by the contempt power, before considering more intrusive methods.Fourth, as we have said, the court must conclude that administration of the drugs is medically appropriate, i. e., in the patient's best medical interest in light of his medical condition. The specific kinds of drugs at issue may matter here as elsewhere. Different kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success.We emphasize that the court applying these standards is seeking to determine whether involuntary administration of drugs is necessary significantly to further a particular governmental interest, namely, the interest in rendering the defendant competent to stand trial. A court need not consider whether to allow forced medication for that kind of purpose,182if forced medication is warranted for a different purpose, such as the purposes set out in Harper related to the individual's dangerousness, or purposes related to the individual's own interests where refusal to take drugs puts his health gravely at risk. 494 U. S., at 225-226. There are often strong reasons for a court to determine whether forced administration of drugs can be justified on these alternative grounds before turning to the trial competence question.For one thing, the inquiry into whether medication is permissible, say, to render an individual nondangerous is usually more "objective and manageable" than the inquiry into whether medication is permissible to render a defendant competent. Riggins, supra, at 140 (KENNEDY, J., concurring in judgment). The medical experts may find it easier to provide an informed opinion about whether, given the risk of side effects, particular drugs are medically appropriate and necessary to control a patient's potentially dangerous behavior (or to avoid serious harm to the patient himself) than to try to balance harms and benefits related to the more quintessentially legal questions of trial fairness and competence.For another thing, courts typically address involuntary medical treatment as a civil matter, and justify it on these alternative, Harper-type grounds. Every State provides avenues through which, for example, a doctor or institution can seek appointment of a guardian with the power to make a decision authorizing medication-when in the best interests of a patient who lacks the mental competence to make such a decision. E. g., Ala. Code §§26-2A-102(a), 26-2A105, 26-2A-108 (West 1992); Alaska Stat. §§ 13.26.105(a), 13.26.116(b) (2002); Ariz. Rev. Stat. Ann. §§ 14-5303, 14-5312 (West 1995); Ark. Code Ann. §§ 28-65-205,28-65-301 (1987). And courts, in civil proceedings, may authorize involuntary medication where the patient's failure to accept treatment threatens injury to the patient or others. See, e. g., 28 CFR § 549.43 (2002); cf. 18 U. S. C. § 4246.183If a court authorizes medication on these alternative grounds, the need to consider authorization on trial competence grounds will likely disappear. Even if a court decides medication cannot be authorized on the alternative grounds, the findings underlying such a decision will help to inform expert opinion and judicial decisionmaking in respect to a request to administer drugs for trial competence purposes. At the least, they will facilitate direct medical and legal focus upon such questions as: Why is it medically appropriate forcibly to administer antipsychotic drugs to an individual who (1) is not dangerous and (2) is competent to make up his own mind about treatment? Can bringing such an individual to trial alone justify in whole (or at least in significant part) administration of a drug that may have adverse side effects, including side effects that may to some extent impair a defense at trial? We consequently believe that a court, asked to approve forced administration of drugs for purposes of rendering a defendant competent to stand trial, should ordinarily determine whether the Government seeks, or has first sought, permission for forced administration of drugs on these other Harper-type grounds; and, if not, why not.When a court must nonetheless reach the trial competence question, the factors discussed above, supra, at 180-181, should help it make the ultimate constitutionally required judgment. Has the Government, in light of the efficacy, the side effects, the possible alternatives, and the medical appropriateness of a particular course of antipsychotic drug treatment, shown a need for that treatment sufficiently important to overcome the individual's protected interest in refusing it? See Harper, supra, at 221-223; Riggins, supra, at 134-135.IVThe Medical Center and the Magistrate in this case, applying standards roughly comparable to those set forth here and in Harper, approved forced medication substantially, if not primarily, upon grounds of Sell's dangerousness to oth-184ers. But the District Court and the Eighth Circuit took a different approach. The District Court found "clearly erroneous" the Magistrate's conclusion regarding dangerousness, and the Court of Appeals agreed. Both courts approved forced medication solely in order to render Sell competent to stand trial.We shall assume that the Court of Appeals' conclusion about Sell's dangerousness was correct. But we make that assumption only because the Government did not contest, and the parties have not argued, that particular matter. If anything, the record before us, described in Part I, suggests the contrary.The Court of Appeals apparently agreed with the District Court that "Sell's inappropriate behavior ... amounted at most to an 'inappropriate familiarity and even infatuation' with a nurse." 282 F. 3d, at 565. That being so, it also agreed that "the evidence does not support a finding that Sell posed a danger to himself or others at the Medical Center." Ibid. The Court of Appeals, however, did not discuss the potential differences (described by a psychiatrist testifying before the Magistrate) between ordinary "overfamiliarity" and the same conduct engaged in persistently by a patient with Sell's behavioral history and mental illness. Nor did it explain why those differences should be minimized in light of the fact that the testifying psychiatrists concluded that Sell was dangerous, while Sell's own expert denied, not Sell's dangerousness, but the efficacy of the drugs proposed for treatment.The District Court's opinion, while more thorough, places weight upon the Medical Center's decision, taken after the Magistrate's hearing, to return Sell to the general prison population. It does not explain whether that return reflected an improvement in Sell's condition or whether the Medical Center saw it as permanent rather than temporary. Cf. Harper, supra, at 227, and n. 10 (indicating that physical185restraints and seclusion often not acceptable substitutes for medication).Regardless, as we have said, we must assume that Sell was not dangerous. And on that hypothetical assumption, we find that the Court of Appeals was wrong to approve forced medication solely to render Sell competent to stand trial. For one thing, the Magistrate's opinion makes clear that he did not find forced medication legally justified on trial competence grounds alone. Rather, the Magistrate concluded that Sell was dangerous, and he wrote that forced medication was "the only way to render the defendant not dangerous and competent to stand triaL" App. 335 (emphasis added).Moreover, the record of the hearing before the Magistrate shows that the experts themselves focused mainly upon the dangerousness issue. Consequently the experts did not pose important questions-questions, for example, about trial-related side effects and risks-the answers to which could have helped determine whether forced medication was warranted on trial competence grounds alone. Rather, the Medical Center's experts conceded that their proposed medications had "significant" side effects and that "there has to be a cost benefit analysis." Id., at 185 (testimony of Dr. DeMier); id., at 236 (testimony of Dr. Wolfson). And in making their "cost-benefit" judgments, they primarily took into account Sell's dangerousness, not the need to bring him to trial.The failure to focus upon trial competence could well have mattered. Whether a particular drug will tend to sedate a defendant, interfere with communication with counsel, prevent rapid reaction to trial developments, or diminish the ability to express emotions are matters important in determining the permissibility of medication to restore competence, Riggins, 504 U. S., at 142-145 (KENNEDY, J., concurring in judgment), but not necessarily relevant when dangerousness is primarily at issue. We cannot tell whether186the side effects of antipsychotic medication were likely to undermine the fairness of a trial in Sell's case.Finally, the lower courts did not consider that Sell has already been confined at the Medical Center for a long period of time, and that his refusal to take antipsychotic drugs might result in further lengthy confinement. Those factors, the first because a defendant ordinarily receives credit toward a sentence for time served, 18 U. S. C. § 3585(b), and the second because it reduces the likelihood of the defendant's committing future crimes, moderate-though they do not eliminate-the importance of the governmental interest in prosecution. See supra, at 180.VFor these reasons, we believe that the present orders authorizing forced administration of antipsychotic drugs cannot stand. The Government may pursue its request for forced medication on the grounds discussed in this opinion, including grounds related to the danger Sell poses to himself or others. Since Sell's medical condition may have changed over time, the Government should do so on the basis of current circumstances.The judgment of the Eighth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 2002SyllabusSELL v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUITNo. 02-5664. Argued March 3, 2003-Decided June 16,2003A Federal Magistrate Judge (Magistrate) initially found petitioner Sell, who has a long history of mental illness, competent to stand trial for fraud and released him on bail, but later revoked bail because Sell's condition had worsened. Sell subsequently asked the Magistrate to reconsider his competence to stand trial for fraud and attempted murder. The Magistrate had him examined at a United States Medical Center for Federal Prisoners (Medical Center), found him mentally incompetent to stand trial, and ordered his hospitalization to determine whether he would attain the capacity to allow his trial to proceed. While there, Sell refused the staff's recommendation to take antipsychotic medication. Medical Center authorities decided to allow involuntary medication, which Sell challenged in court. The Magistrate authorized forced administration of antipsychotic drugs, finding that Sell was a danger to himself and others, that medication was the only way to render him less dangerous, that any serious side effects could be ameliorated, that the benefits to Sell outweighed the risks, and that the drugs were substantially likely to return Sell to competence. In affirming, the District Court found the Magistrate's dangerousness finding clearly erroneous but concluded that medication was the only viable hope of rendering Sell competent to stand trial and was necessary to serve the Government's interest in obtaining an adjudication of his guilt or innocence. The Eighth Circuit affirmed. Focusing solely on the fraud charges, it found that the Government had an essential interest in bringing Sell to trial, that the treatment was medically appropriate, and that the medical evidence indicated a reasonable probability that Sell would fairly be able to participate in his trial.Held:1. The Eighth Circuit had jurisdiction to hear the appeal. The District Court's pretrial order was an appealable "collateral order" within the exceptions to the rule that only final judgments are appealable. The order conclusively determines the disputed question whether Sell has a legal right to avoid forced medication. Coopers & Lybrand v. Livesay, 437 U. S. 463, 468. It also resolves an important issue, for involuntary medical treatment raises questions of clear constitutional importance. Ibid. And the issue is effectively unreviewable on appeal167from a final judgment, ibid., since, by the time of trial, Sell will have undergone forced medication-the very harm that he seeks to avoid and which cannot be undone by an acquittal. Pp.175-177.2. Under the framework of Washington v. Harper, 494 U. S. 210, and Riggins v. Nevada, 504 U. S. 127, the Constitution permits the Government involuntarily to administer antipsychotic drugs to render a mentally ill defendant competent to stand trial on serious criminal charges if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial's fairness, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests. Pp. 177-183.(a) This standard will permit forced medication solely for trial competence purposes in certain instances. But these instances may be rare, because the standard says or fairly implies the following: First, a court must find that important governmental interests are at stake. The Government's interest in bringing to trial an individual accused of a serious crime is important. However, courts must consider each case's facts in evaluating this interest because special circumstances may lessen its importance, e. g., a defendant's refusal to take drugs may mean lengthy confinement in an institution, which would diminish the risks of freeing without punishment one who has committed a serious crime. In addition to its substantial interest in timely prosecution, the Government has a concomitant interest in assuring a defendant a fair trial. Second, the court must conclude that forced medication will significantly further those concomitant state interests. It must find that medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a defense. Third, the court must conclude that involuntary medication is necessary to further those interests and find that alternative, less intrusive treatments are unlikely to achieve substantially the same results. Fourth, the court must conclude that administering the drugs is medically appropriate. Pp.177-181.(b) The court applying these standards is trying to determine whether forced medication is necessary to further the Government's interest in rendering the defendant competent to stand trial. If a court authorizes medication on an alternative ground, such as dangerousness, the need to consider authorization on trial competence grounds will likely disappear. There are often strong reasons for a court to consider alternative grounds first. For one thing, the inquiry into whether medication is permissible to render an individual nondangerous is usually more objective and manageable than the inquiry into whether medication is permissible to render a defendant competent. For another,168Full Text of Opinion

1975_75-5491

Judgment of the Court, and opinion of MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS, announced by MR. JUSTICE STEWART.The question in this case is whether the imposition of a death sentence for the crime of first-degree murder under the law of North Carolina violates the Eighth and Fourteenth Amendments.IThe petitioners were convicted of first-degree murder as the result of their participation in an armed robbery Page 428 U. S. 283 of a convenience food store, in the course of which the cashier was killed and a customer was seriously wounded. There were four participants in the robbery; the petitioners James Tyrone Woodson and Luby Waxton and two others, Leonard Tucker and Johnnie Lee Carroll. At the petitioners' trial, Tucker and Carroll testified for the prosecution after having been permitted to plead guilty to lesser offenses; the petitioners testified in their own defense.The evidence for the prosecution established that the four men had been discussing a possible robbery for some time. On the fatal day, Woodson had been drinking heavily. About 9:30 p.m., Waxton and Tucker came to the trailer where Woodson was staying. When Woodson came out of the trailer, Waxton struck him in the face and threatened to kill him in an effort to make him sober up and come along on the robbery. The three proceeded to Waxton's, trailer where they met Carroll. Waxton armed himself with a nickel-plated derringer, and Tucker handed Woodson a rifle. The four then set out by automobile to rob the store. Upon arriving at their destination, Tucker and Waxton went into the store while Carroll and Woodson remained in the car as lookouts. Once inside the store, Tucker purchased a package of cigarettes from the woman cashier. Waxton then also asked for a package of cigarettes, but as the cashier approached him, he pulled the derringer out of his hip pocket and fatally shot her at point-blank range. Waxton then took the money tray from the cash register and gave it to Tucker, who carried it out of the store, pushing past an entering customer as he reached the door. After he was outside, Tucker heard a second shot from inside the store, and shortly thereafter, Waxton emerged, carrying a handful of paper money. Tucker and Waxton got in the car, and the four drove away. Page 428 U. S. 284The petitioners' testimony agreed in large part with this version of the circumstances of the robbery. It differed diametrically in one important respect: Waxton claimed that he never had a gun, and that Tucker had shot both the cashier and the customer.During the trial, Waxton asked to be allowed to plead guilty to the same lesser offenses to which Tucker had pleaded guilty, [Footnote 1] but the solicitor refused to accept the pleas. [Footnote 2] Woodson, by contrast, maintained throughout the trial that he had been coerced by Waxton, that he was therefore innocent, and that he would not consider pleading guilty to any offense.The petitioners were found guilty on all charges, [Footnote 3] and, as was required by statute, sentenced to death. The Supreme Court of North Carolina affirmed. 287 N.C. 578, 215 S.E.2d 607 (1975). We granted certiorari, 423 U.S. 1082 (1976), to consider whether the imposition of the death penalties in this case comports with Page 428 U. S. 285 the Eighth and Fourteenth Amendments to the United States Constitution.IIThe petitioners argue that the imposition of the death penalty under any circumstances is cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. We reject this argument for the reasons stated today in Gregg v. Georgia, ante at 428 U. S. 168-187.IIIAt the time of this Court's decision in Furman v. Georgia, 408 U. S. 238 (1972), North Carolina law provided that, in cases of first-degree murder, the jury, in its unbridled discretion, could choose whether the convicted defendant should be sentenced to death or to life imprisonment. [Footnote 4] After the Furman decision, the Supreme Court of North Carolina, in State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973), held unconstitutional the provision of the death penalty statute that gave the jury the option of returning a verdict of guilty without capital Page 428 U. S. 286 punishment, but held further that this provision was severable so that the statute survived as a mandatory death penalty law. [Footnote 5]The North Carolina General Assembly, in 1974, followed the court's lead and enacted a new statute that was essentially unchanged from the old one except that it made the death penalty mandatory. The statute now reads as follows:"Murder in the first and second degree defined; punishment. -- A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony, shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree, and shall be punished by imprisonment for a term of not less than two years nor more than life imprisonment in the State's prison."N.C.Gen.Stat. 117 (Cum.Supp. 1975).It was under this statute that the petitioners, who committed their crime on June 3, 1974, were tried, convicted, and sentenced to death.North Carolina, unlike Florida, Georgia, and Texas, has thus responded to the Furman decision by making death the mandatory sentence for all persons convicted Page 428 U. S. 287 of first-degree murder. [Footnote 6] In ruling on the constitutionality of the sentences imposed on the petitioners under this North Carolina statute, the Court now addresses for the first time the question whether a death sentence returned pursuant to a law imposing a mandatory death penalty for a broad category of homicidal offenses [Footnote 7] constitutes cruel and unusual punishment within the meaning of the Eighth and Fourteenth Amendments. [Footnote 8] The issue, like that explored in Furman, involves the procedure employed by the State to select persons for the unique and irreversible penalty of death. [Footnote 9] Page 428 U. S. 288AThe Eighth Amendment stands to assure that the State's power to punish is "exercise within the limits of civilized standards." Trop v. Dulles, 356 U. S. 86, 356 U. S. 100 (1958) (plurality opinion). See id. at 356 U. S. 101; Weems v. United States, 217 U. S. 349, 217 U. S. 373, 378 (1910); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 329 U. S. 468-469 (1947) (Frankfurter, J, concurring); [Footnote 10] Robinson v. California, 370 U. S. 660, 370 U. S. 666 (1962); Furman v. Georgia, 408 U.S. at 408 U. S. 242 (Douglas, J., concurring); id. at 408 U. S. 269-270 (BRENNAN, J., concurring); id. at 408 U. S. 329 (MARSHALL, J., concurring); id. at 408 U. S. 382-383 (BURGER, C.J., dissenting); id. at 408 U. S. 409 (BLACKMUN, J., dissenting); id. at 408 U. S. 428-429 (POWELL, J., dissenting). Central to the application of the Amendment is a determination of contemporary standards regarding the infliction of punishment. As discussed in Gregg v. Georgia, ante at 428 U. S. 176-182, indicia of societal values identified in prior opinions include history and traditional usage, [Footnote 11] legislative enactments, [Footnote 12] and jury determinations. [Footnote 13] Page 428 U. S. 289In order to provide a frame for assessing the relevancy of these factors in this case, we begin by sketching the history of mandatory death penalty statutes in the United States. At the time the Eighth Amendment was adopted in 1791, the States uniformly followed the common law practice of making death the exclusive and mandatory sentence for certain specified offenses. [Footnote 14] Although the range of capital offenses in the American Colonies was quite limited in comparison to the more than 200 offenses then punishable by death in England, [Footnote 15] the Colonies at the time of the Revolution imposed death sentences on all persons convicted of any of a considerable number of crimes, typically including at a minimum, murder, treason, piracy, arson, rape, robbery, burglary, and sodomy. [Footnote 16] As at common law, all homicides that were not involuntary, provoked, justified, or excused constituted murder, and were automatically punished by death. [Footnote 17] Almost from the outset, jurors reacted unfavorably to the harshness of mandatory death sentences. [Footnote 18] The States initially responded to this expression Page 428 U. S. 290 of public dissatisfaction with mandatory statutes by limiting the classes of capital offenses. [Footnote 19]This reform, however, left unresolved the problem posed by the not infrequent refusal of juries to convict murderers rather than subject them to automatic death sentences. In 1794, Pennsylvania attempted to alleviate the undue severity of the law by confining the mandatory death penalty to "murder of the first degree" encompassing all "willful, deliberate and premeditated" killings. Pa.Laws 1794 c. 1766. [Footnote 20] Other jurisdictions, including Virginia and Ohio, soon enacted similar measures, and, within a generation, the practice spread to most of the States. [Footnote 21]Despite the broad acceptance of the division of murder into degrees, the reform proved to be an unsatisfactory means of identifying persons appropriately punishable by death. Although its failure was due in part to the amorphous nature of the controlling concepts of willfulness, Page 428 U. S. 291 deliberateness, and premeditation, [Footnote 22] a more fundamental weakness of the reform soon became apparent. Juries continued to find the death penalty inappropriate in a significant number of first-degree murder cases, and refused to return guilty verdicts for that crime. [Footnote 23]The inadequacy of distinguishing between murderers solely on the basis of legislative criteria narrowing the definition of the capital offense led the States to grant juries sentencing discretion in capital cases. Tennessee, in 1838, followed by Alabama, in 1841, and Louisiana, in 1846, were the first States to abandon mandatory death sentences in favor of discretionary death penalty statutes. [Footnote 24] This flexibility remedied the harshness of mandatory statutes by permitting the jury to respond to mitigating factors by withholding the death penalty. By the turn of the century, 23 States and the Federal Government had made death sentences discretionary for first-degree murder and other capital offenses. During the next two decades, 14 additional States replaced their mandatory death penalty statutes. Thus, by the end of World War I, all but eight States, Hawaii, and the District of Columbia either had adopted discretionary death penalty schemes or abolished the death penalty altogether. By 1963, all of these remaining jurisdictions Page 428 U. S. 292 had replaced their automatic death penalty statutes with discretionary jury sentencing. [Footnote 25]The history of mandatory death penalty statutes in Page 428 U. S. 293 the United States thus reveals that the practice of sentencing to death all persons convicted of a particular offense has been rejected as unduly harsh and unworkably rigid. The two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society -- jury determinations and legislative enactment -- both point conclusively to the repudiation of automatic death sentences. At least since the Revolution, American jurors have, with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict. As we have seen, the initial movement to reduce the number of capital offenses and to separate murder into degrees was prompted in part by the reaction of jurors, as well as by reformers who objected to the imposition of death as the penalty for any crime. Nineteenth century journalists, statesmen, and jurists repeatedly observed that jurors were often deterred from convicting palpably guilty men of first-degree murder under mandatory statutes. [Footnote 26] Thereafter, continuing evidence of jury reluctance to convict persons of capital offenses in mandatory death penalty jurisdictions resulted in legislative authorization of discretionary jury sentencing -- by Congress for federal crimes in 1897, [Footnote 27] by North Carolina in 1949, [Footnote 28] and by Congress for the District of Columbia in 1962. [Footnote 29] Page 428 U. S. 294As we have noted today in Gregg v. Georgia, ante at 428 U. S. 179-181, legislative measures adopted by the people's chosen representatives weigh heavily in ascertaining contemporary Page 428 U. S. 295 standards of decency. The consistent course charted by the state legislatures and by Congress since the middle of the past century demonstrates that the aversion of jurors to mandatory death penalty statutes is shared by society at large. [Footnote 30]Still further evidence of the incompatibility of mandatory death penalties with contemporary values is provided by the results of jury sentencing under discretionary statutes. In Witherspoon v. Illinois, 391 U. S. 510 (1968), the Court observed that "one of the most important functions any jury can perform" in exercising its discretion to choose "between life imprisonment and capital punishment" is "to maintain a link between contemporary community values and the penal system." Id. at 391 U. S. 519, and n. 15. Various studies indicate that, even in first-degree murder cases, juries with sentencing discretion do not impose the death penalty "with any great frequency." H. Kalven & H. Zeisel, The American Jury 436 (1966). [Footnote 31] The actions of sentencing juries suggest Page 428 U. S. 296 that, under contemporary standards of decency, death is viewed as an inappropriate punishment for a substantial portion of convicted first degree murderers. Although the Court has never ruled on the constitutionality of mandatory death penalty statutes, on several occasions dating back to 1899, it has commented upon our society's aversion to automatic death sentences. In Winston v. United States, 172 U. S. 303 (1899), the Court noted that the"hardship of punishing with death every crime coming within the definition of murder at common law, and the reluctance of jurors to concur in a capital conviction, have induced American legislatures, in modern times, to allow some cases of murder to be punished by imprisonment instead of by death."Id. at 172 U. S. 310. [Footnote 32] Fifty years after Winston, the Court underscored the marked transformation in our attitudes toward mandatory sentences:"The belief no longer prevails that every offense in a like legal category calls for an identical Page 428 U. S. 297 punishment without regard to the past life and habits of a particular offender. This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions. . . ."Williams v. New York, 337 U. S. 241, 337 U. S. 247 (1949).More recently, the Court in McGautha v. California, 402 U. S. 183 (1971), detailed the evolution of discretionary imposition of death sentences in this country, prompted by what it termed the American "rebellion against the common law rule imposing a mandatory death sentence on all convicted murderers." Id. at 402 U. S. 198. See id. at 402 U. S. 198-202. Perhaps the one important factor about evolving social values regarding capital punishment upon which the Members of the Furman Court agreed was the accuracy of McGautha's assessment of our Nation's rejection of mandatory death sentences. See Furman v. Georgia, 408 U.S. at 408 U. S. 245-246 (Douglas, J., concurring); id. at 408 U. S. 297-298 (BRENNAN, J., concurring); id. at 408 U. S. 339 (MARSHALL, J., concurring); id. at 408 U. S. 402-403 (BURGER, C.J., with whom BLACKMUN, POWELL, and REHNQUIST, JJ., joined, dissenting); id. at 408 U. S. 413 (BLACKMUN, J., dissenting). MR. JUSTICE BLACKMUN, for example, emphasized that legislation requiring an automatic death sentence for specified crimes would be "regressive, and of an antique mold," and would mark a return to a "point in our criminology [passed beyond] long ago." Ibid. THE CHIEF JUSTICE, speaking for the four dissenting Justices in Furman, discussed the question of mandatory death sentences at some length:"I had thought that nothing was clearer in history, as we noted in McGautha one year ago, than the American abhorrence of 'the common law rule imposing a mandatory death sentence on all convicted murderers.' 402 U.S. at 402 U. S. 198. As the concurring opinion of MR. JUSTICE MARSHALL shows, [408 Page 428 U. S. 298 U.S.] at 408 U. S. 339, the 19th century movement away from mandatory death sentences marked an enlightened introduction of flexibility into the sentencing process. It recognized that individual culpability is not always measured by the category of the crime committed. This change in sentencing practice was greeted by the Court as a humanizing development. See Winston v. United States, 172 U. S. 303 (1899); cf. Calton v. Utah, 130 U. S. 83 (1889). See also Andres v. United States, 333 U. S. 740, 333 U. S. 753 (1948) (Frankfurter, J., concurring)."Id. at 408 U. S. 402.Although it seems beyond dispute that, at the time of the Furman decision in 1972, mandatory death penalty statutes had been renounced by American juries and legislatures, there remains the question whether the mandatory statutes adopted by North Carolina and a number of other States following Furman evince a sudden reversal of societal values regarding the imposition of capital punishment. In view of the persistent and unswerving legislative rejection of mandatory death penalty statutes beginning in 1838 and continuing for more than 130 years until Furman, [Footnote 33] it seems evident that the post-Furman enactments reflect attempts by the States to retain the death penalty in a form consistent with the Constitution, rather than a renewed societal acceptance of mandatory death sentencing. [Footnote 34] The fact that some Page 428 U. S. 299 States have adopted mandatory measures following Furman, while others have legislated standards to guide jury discretion appears attributable to diverse readings of this Court's multi-opinioned decision in that case. [Footnote 35]A brief examination of the background of the current North Carolina statute serves to reaffirm our assessment of its limited utility as an indicator of contemporary values regarding mandatory death sentences. Before 1949, North Carolina imposed a mandatory death sentence on any person convicted of rape or first-degree murder. That year, a study commission created by the state legislature recommended that juries be granted discretion to recommend life sentences in all capital cases:"We propose that a recommendation of mercy by the jury in capital cases automatically carry with it a life sentence. Only three other states now have the mandatory death penalty, and we believe its retention will be definitely harmful. Quite frequently, juries refuse to convict for rape or first degree murder because, from all the circumstances, they do not believe the defendant, although guilty, should suffer death. The result is that verdicts are returned hardly in harmony with evidence. Our Page 428 U. S. 300 proposal is already in effect in respect to the crimes of burglary and arson. There is much testimony that it has proved beneficial in such cases. We think the law can now be broadened to include all capital crimes."Report of the Special Commission For the Improvement of the Administration of Justice, North Carolina, Popular Government 13 (Jan.1949).The 1949 session of the General Assembly of North Carolina adopted the proposed modifications of its rape and murder statutes. Although in subsequent years numerous bills were introduced in the legislature to limit further or abolish the death penalty in North Carolina, they were rejected, as were two 1969 proposals to return to mandatory death sentences for all capital offenses. See State v. Waddell, 282 N.C. at 441, 194 S.E.2d at 26 (opinion of the court); id. at 456-457, 194 S.E.2d at 32-33 (Bobbitt, C.J., concurring in part and dissenting in part).As noted, supra at 428 U. S. 285-286, when the Supreme Court of North Carolina analyzed the constitutionality of the State's death penalty statute following this Court's decision in Furman, it severed the 1949 proviso authorizing jury sentencing discretion and held that "the remainder of the statute with death as the mandatory punishment . . . remains in full force and effect." State v. Waddell, supra at 444-445, 194 S.E.2d at 28. The North Carolina General Assembly then followed the course found constitutional in Waddell, and enacted a first-degree murder provision identical to the mandatory statute in operation prior to the authorization of jury discretion. The State's brief in this case relates that the legislature sought to remove "all sentencing discretion [so that] there could be no successful Furman based attack on the North Carolina statute." Page 428 U. S. 301It is now well established that the Eighth Amendment draws much of its meaning from "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. at 356 U. S. 101 (plurality opinion). As the above discussion makes clear, one of the most significant developments in our society's treatment of capital punishment has been the rejection of the common law practice of inexorably imposing a death sentence upon every person convicted of a specified offense. North Carolina's mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death, and thus cannot be applied consistently with the Eighth and Fourteenth Amendments' requirement that the State's power to punish "be exercised within the limits of civilized standards." Id. at 100. [Footnote 36] Page 428 U. S. 302BA separate deficiency of North Carolina's mandatory death sentence statute is its failure to provide a constitutionally tolerable response to Furman's rejection of unbridled jury discretion in the imposition of capital sentences. Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments. See Furman v. Georgia, 408 U.S. at 408 U. S. 309-310 (STEWART, J., concurring); id. at 408 U. S. 313 (WHITE, J., concurring); cf. id. at 408 U. S. 253-257 (Douglas, J., concurring). See also id. at 408 U. S. 398-399 (BURGER, C.J., dissenting). It is argued that North Carolina has remedied the inadequacies of the death penalty statutes held unconstitutional in Furman by withdrawing all sentencing discretion from juries in capital cases. But when one considers the long and consistent American experience with the death penalty in first-degree murder cases, it becomes evident that mandatory statutes enacted in response to Furman have simply papered over the problem of unguided and unchecked jury discretion.As we have noted in 428 U. S. supra, there is general agreement that American juries have persistently refused to convict a significant portion of persons charged with first-degree murder of that offense under mandatory death penalty statutes. The North Carolina study commission, supra at 428 U. S. 299-300, reported that juries in that State "[q]uite frequently" were deterred from rendering guilty verdicts of first-degree murder because of the enormity of the sentence automatically imposed. Moreover, Page 428 U. S. 303 as a matter of historic fact, juries operating under discretionary sentencing statutes have consistently returned death sentences in only a minority of first-degree murder cases. [Footnote 37] In view of the historic record, it is only reasonable to assume that many juries under mandatory statutes will continue to consider the grave consequences of a conviction in reaching a verdict. North Carolina's mandatory death penalty statute provides no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die. And there is no way under the North Carolina law for the judiciary to check arbitrary and capricious exercise of that power through a review of death sentences. [Footnote 38] Instead of rationalizing the sentencing process, a mandatory scheme may well exacerbate the problem identified in Furman by resting the penalty determination on the particular jury's willingness to act lawlessly. While a mandatory death penalty statute may reasonably be expected to increase the number of persons sentenced to death, it does not fulfill Furman's basic requirement by replacing arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death.CA third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. In Furman, members of the Court acknowledged what cannot fairly be denied -- that death is a punishment different from all other Page 428 U. S. 304 sanctions in kind, rather than degree. See 408 U.S. at 408 U. S. 286-291 (BRENNAN, J., concurring); id. at 408 U. S. 306 (STEWART, J., concurring). A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.This Court has previously recognized that,"[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense, together with the character and propensities of the offender."Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 302 U. S. 55 (1937). Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York, 337 U.S. at 337 U. S. 247-249; Furman v. Georgia, 408 U.S. at 408 U. S. 402-403 (BURGER, C.J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy, rather than a constitutional imperative, we believe that, in capital cases, the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S. at 356 U. S. 100 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. Page 428 U. S. 305This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. [Footnote 39]For the reasons stated, we conclude that the death sentences imposed upon the petitioners under North Carolina's mandatory death sentence statute violated the Eighth and Fourteenth Amendments, and therefore must be set aside. [Footnote 40] The judgment of the Supreme Court of North Carolina is reversed insofar as it upheld the death sentences imposed upon the petitioners, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtWoodson v. North Carolina, 428 U.S. 280 (1976)Woodson v. North CarolinaNo. 75-5491Argued March 31, 1976Decided July 2, 1976428 U.S. 280SyllabusFollowing this Court's decision in Furman v. Georgia, 408 U. S. 238, the North Carolina law that previously had provided that in cases of first-degree murder the jury in its unbridled discretion could choose whether the convicted defendant should be sentenced to death or life imprisonment was changed to make the death penalty mandatory for that crime. Petitioners, whose convictions of first-degree murder and whose death sentences under the new statute were upheld by the Supreme Court of North Carolina, have challenged the statute's constitutionality.Held: The judgment is reversed insofar as it upheld the death sentences, and the case is remanded. Pp. 428 U. S. 285-305; 428 U. S. 305-306; 428 U. S. 306.287 N.C. 578, 215 S.E.2d 607, reversed and remanded.MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS concluded that North Carolina's mandatory death sentence statute violates the Eighth and Fourteenth Amendments. Pp. 428 U. S. 285-305.(a) The Eighth Amendment serves to assure that the State's power to punish is "exercised within the limits of civilized standards," Trop v. Dulles, 356 U. S. 86, 356 U. S. 100 (plurality opinion), and central to the application of the Amendment is a determination of contemporary standards regarding the infliction of punishment, Gregg v. Georgia, ante at 428 U. S. 176-182. P. 428 U. S. 288.(b) Though, at the time the Eighth Amendment was adopted, all the States provided mandatory death sentences for specified offenses, the reaction of jurors and legislators to the harshness of those provisions has led to the replacement of automatic death penalty statutes with discretionary jury sentencing. The two crucial indicators of evolving standards of decency respecting the imposition of punishment in our society -- jury determinations and legislative enactments -- conclusively point to the repudiation of automatic death sentences."The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender,"Williams v. New York, 337 U. S. 241, 337 U. S. 247. North Carolina's mandatory death penalty statute for first-degree murder, Page 428 U. S. 281 which resulted from the state legislature's adoption of the State Supreme Court's analysis that Furman required the severance of the discretionary feature of the old law, is a constitutionally impermissible departure from contemporary standards respecting imposition of the unique and irretrievable punishment of death. Pp. 428 U. S. 289-301.(c) The North Carolina statute fails to provide a constitutionally tolerable response to Furman's rejection of unbridled jury discretion in the imposition of capital sentences. Central to the limited holding in that case was the conviction that vesting a jury with standardless sentencing power violated the Eighth and Fourteenth Amendments, yet that constitutional deficiency is not eliminated by the mere formal removal of all sentencing power from juries in capital cases. In view of the historic record, it may reasonably be assumed that many juries under mandatory statutes will continue to consider the grave consequences of a conviction in reaching verdict. But the North Carolina statute provides no standards to guide the jury in determining which murderers shall live and which shall die. Pp. 428 U. S. 302-303.(d) The respect for human dignity underlying the Eighth Amendment, Trop v. Dulles, supra at 356 U. S. 100 (plurality opinion), requires consideration of aspects of the character of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of imposing the ultimate punishment of death. The North Carolina statute impermissibly treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty. Pp. 428 U. S. 303-305.MR. JUSTICE BRENNAN concurred in the judgment for the reasons stated in his dissenting opinion in Gregg v. Georgia, ante, p. 428 U. S. 227. P. 428 U. S. 305.MR. JUSTICE MARSHALL, being of the view that death is a cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, concurred in the judgment. Gregg v. Georgia, ante, p. 428 U. S. 231 (MARSHALL, J., dissenting). P. 428 U. S. 306.Judgment of the Court, and opinion of STEWART, POWELL, and STEVENS, JJ., announced by STEWART, J. BRENNAN, J., post, p. 428 U. S. 305, and MARSHALL, J., post, p. 428 U. S. 306, filed statements concurring in the judgment. WHITE, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 428 U. S. 306. BLACKMUN, Page 428 U. S. 282 J., filed a dissenting statement, post, p. 428 U. S. 307. REHNQUIST, J., filed a dissenting opinion, post, p. 428 U. S. 308.

1974_73-375

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This bankruptcy case raises issues (a) as to whether priority claims for wages earned by employees prior to an employer's bankruptcy, but unpaid at the inception of the bankruptcy proceeding, are subject to withholding taxes, and, if so, (b) as to whether the taxing entities must file proofs of claim, and (c) as to which priority of payment, if any, the withholding taxes enjoy under Page 419 U. S. 45 § 64a of the Bankruptcy Act (the Act), 11 U.S.C. § 104(a). [Footnote 1]IOn September 15, 1964, Freedomland, Inc., a New York corporation, filed a petition with the United States District Court for the Southern District of New York for an arrangement under Chapter XI of the Act, 11 U.S.C. §§ 701-799. The arrangement failed, and on August 30, 1965, Freedomland was adjudicated a bankrupt. Petitioner, William Otte, was appointed and qualified as the trustee.During the statutorily prescribed six-month period for the filing of proofs of claim against the estate, see §§ 57 and 63 of the Act, 11 U.S.C. §§ 93 and 103, 413 former employees of Freedomland filed proofs for unpaid wages (each claim in the amount of $600 or less and all the claims aggregating approximately $80,000) that had been earned within three months preceding the filing of the Chapter XI petition. These wage claims concededly were entitled to a second priority of payment under § 64a(2). No proofs for any federal income or Federal Insurance Contributions Act taxes on these wage claims, withholdable under Chapters 24 and 21, respectively, of the Internal Revenue Code of 1954, 26 U.S.C. §§ 3401-3404 Page 419 U. S. 46 and 3101-3126, were filed by the United States, and no proofs for any New York City personal income tax, withholdable under Chapter 46, Titles T and U, of the New York City Administrative Code, were filed by the city.In November, 1969, the trustee filed a motion for an order directing distribution to the 413 priority wage claimants without deduction for any federal, state, or city withholding taxes. He also asked that the referee declare that the trustee was not required to withhold or pay any such tax or to file any report or return relative thereto with the respective taxing authorities. The State of New York, although served, filed no response to the trustee's motion. The United States and the city did respond. The referee issued an order granting the trustee the relief he requested. App. 48a-50a. In a supporting memorandum decision, the referee stated that the withholding and reporting requirements of the federal and city statutes"would impose a further burden on the administration of these estates which is entirely inconsistent with the objective of efficient expeditious economic administration of bankrupt estates,"and that "compliance with withholding and reporting requirements . . . is utterly inconsistent with the spirit and the letter of the Bankruptcy Act." Id. at 36a, 37a.The United States and the city filed petitions with the United States District Court to review the referee's order and decision. After a hearing, the District Court reversed the order and decision insofar as they pertained to federal taxes. It directed the withholding of federal taxes on the priority wage claims, and also concluded that the amounts to be withheld were "taxes which became legally due and owing by the bankrupt," within the language of § 64a(4), and, therefore, were to be paid as tax claims of the fourth priority. The court observed that little more than a simple bookkeeping effort would be involved in withholding 25% of the wage distributions. [Footnote 2] Page 419 U. S. 47 It held that proofs of claim were not required because the employees' proofs gave notice to the trustee and other creditors of the total amounts distributable on account of the claims. The District Court, however, ruled against the city on the ground that the city's personal income tax did not become effective until 1966, and thus no city tax was due and owing by the bankrupt in 1964 when the Chapter XI petition was filed. In re Freedomland, Inc., 341 F. Supp. 647 (1972).The trustee, the United States, and the city all appealed. The United States Court of Appeals for the Second Circuit affirmed in part and reversed in part. It held that the trustee was obligated to withhold, to report, and to pay over the withholding taxes on the wage claims, and that the taxing entities were not required to file proofs of claim. It further held, however -- and thus, to this extent, disagreed with the District Court -- that both the United States and the city were entitled to be paid as second priority claimants under § 64a(2). In re Freedomland, Inc., 480 F.2d 184 (1973).We granted the trustee's petition for certiorari (unopposed by the United States) primarily because the circuits are in disarray as to the priority to be accorded to withholding taxes on pre-bankruptcy wage claims. [Footnote 3] 414 Page 419 U. S. 48 U.S. 1156 (1974). No cross-petition was filed by either the United States or the city of New York.IIWithholding, Reports, and ReturnsEvery Court of Appeals which has faced the issue, including the Second Circuit in the present case, has held, contrary to the ruling of the referee, that the withholding provisions of the Internal Revenue Code, and of state or municipal tax statutes, require that a trustee in bankruptcy withhold income and social security taxes from payments of wage claims, and that he prepare and submit to the wage claimants and to the taxing authorities the reports and returns statutorily required of employers. United States v. Fogarty, 164 F.2d 26, 333 (CA8 1947); United States v. Courtu, 178 F.2d 268, 269 (CA6 1949), cert. denied, 339 U.S. 965 (1950); Lines v. California Dept. of Employment, 242 F.2d 201, 202, reh. den., 246 F.2d 70 (CA9), cert. denied, 355 U.S. 857 (1957); In re Connecticut Motor Lines, Inc., 336 F.2d 96 (CA3 1964). To the same effect is In re Dale, 111 F. Supp. 109, 111 (Me.1953).A. The requirement of withholding. Section 3402(a) of the Internal Revenue Code, 26 U.S.C. § 3402(a), requires "[e]very employer making payment of wages" to "deduct and withhold upon such wages . . . a tax determined. . . ." Section 3401(a) defines "wages" for withholding purposes to mean, with certain exceptions, "all remuneration . . . for services performed by an employee for his employer," and § 3401(d) defines "employer" as Page 419 U. S. 49 "the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person." The latter section makes an exception where "the person for whom the individual performs or performed the services does not have control of the payment of the wages for such services"; in that case, "employer" means "the person having control of the payment of such wages." Sections T46-51.0(a) and U46-8.0 of the New York City Administrative Code are generally to the same effect. [Footnote 4]The trustee contends that the payment of wage claims under the Bankruptcy Act, although for "wages" within the meaning of that Act, is not the "payment of wages" under § 3402(a), and that, in any event, the trustee is not the wage claimant's "employer" to whom § 3402(a) relates.The payments to the wage claimants who filed in this case are payments for services performed by them for their former employer, Freedomland, before the commencement of the proceeding under the Act. There is, and can be, no dispute as to this. The fact that the services were performed for the bankrupt, rather than for the trustee, and the fact that payment is made after the employment relationship terminated, do not convert the remuneration into something other than "wages," as defined by § 3401(a) of the Internal Revenue Code. That statute, as has been noted, broadly defines "wages" to include, with stated exceptions not material here, "all remuneration." And § 3401(d), in defining "employer," twice refers to services that the employee "performs or performed." It thus speaks in the past tense as well as Page 419 U. S. 50 the present, and thereby plainly reveals that a continuing employment relationship is not a prerequisite for a payment's qualification as "wages." The income tax withholding regulations since 1943 have so provided in specific terms. 26 CFR § 31.3401(a)-1(a)(5); Treas.Reg. 120 § 406.205(b) (1954); Treas.Reg. 116 § 405.105 (1944 and 1951 eds.); Treas.Reg. 115 § 404.101(a) (1943). The regulations are not in conflict with the statute; they further the statutory purpose, and are reasonable; and they are a valid exercise of the rulemaking power. Cammarano v. United States, 358 U. S. 498, 358 U. S. 507-512 (1959). [Footnote 5]The payment of the wage claims is thus "payment of wages" under § 3402(a) of the Internal Revenue Code.The fact that, in bankruptcy, payment of wage claims is effected by one other than the bankrupt former employer does not defeat any withholding requirement. Although § 3402(a) refers to the "employer making payment of wages," § 3401(d)(1), as also has been noted, provides that, if the person for whom the services were performed "does not have control of the payment of the wages for such services," the term "employer" then means "the person having control of the payment of such wages." This obviously was intended to place responsibility for withholding at the point of control. The petitioner trustee suggests that control rests in the referee, rather than in the trustee, because of the former's duty, under § 39a(5) of the Act, 11 U.S.C. § 67(a)(5), Page 419 U. S. 51 to "declare dividends." We need not determine whether it is the trustee, with his responsibility, under §§ 47a(8) and (11) of the Act, 11 U.S.C. §§ 75(a)(8) and (11), for making recommendations and actual payments, or the referee, with his supervision over the general administration of the bankrupt estate, or the estate itself, that has "control of the payment of such wages" within the meaning of § 3401(d)(1) of the Internal Revenue Code. One of them is the "employer," and, as such, has the duty to withhold or to order the withholding, as the case may be. [Footnote 6] An "employer," under § 3402(a), is thus present.The situation is the same with respect to FICA withholding. Section 3102(a) of the Internal Revenue Code, 26 U.S.C. § 3102(a), provides that the tax is to be collected by the employer by deducting "from the wages as and when paid." Here, too, the payments clearly are "wages" under that statute, even though again, at the time of payment, the employment relationship between the bankrupt and the claimant no longer exists. And here, also, the regulations long and consistently have been to this effect. 26 CFR § 31.3121(a)-1(i); Treas.Reg. 128 § 408.226(a) (1951); Treas.Reg. 106 § 402.227(a) (1940). The fact that the FICA withholding provisions of the Code do not define "employer" is of no significance, for that term is not to be given a narrower construction for FICA withholding than for income tax withholding.Because of the identity of definition already observed, n 4, supra, the same rationale necessarily applies to the New York City withholding tax. Page 419 U. S. 52The trustee finally suggests that the placing of a withholding obligation upon the trustee amounts to the imposition of a penalty barred by § 57, of the Act, 11 U.S.C. § 93(j). This argument, however, rests upon the presence of § 6672 of the Internal Revenue Code, 26 U.S.C. § 6672, and §§ T46-65.0(g) and U46-35.0(g) of the New York City Administrative Code, all of which impose a penalty, apart from the tax, on a person who willfully fails to fulfill his obligation to withhold or who willfully attempts to evade or defeat any tax. That, obviously, is not this case.B. The requirement of reports and returns. This routinely follows from the obligation to withhold. Section 6051(a) of the Internal Revenue Code, 26 U.S.C. § 6051(a), provides that a person required to withhold must furnish the employee a written statement showing the wages subject to withholding and the amount withheld on account of each tax. A duplicate of that statement is to be available for filing with the Internal Revenue Service. § 6051(d). Sections 6001 and 6011 require every person responsible for payment or collection of taxes to keep such records and make such returns as the Secretary prescribes. The applicable regulations respond to these statutes. 26 CFR §§ 31.6001-1, 31.6001-2, 31.6001-5, 31.6011(a)-6(a)(1), and 31.6051-1; Rev.Proc. 71-18, 1971-1 Cum.Bull. 684. It is undisputed that the petitioner trustee must comply with these provisions if he is subject to the withholding requirements of §§ 3402 and 3102. Nicholas v. United States, 384 U. S. 678, 384 U. S. 693 (1966).The New York City Administrative Code provisions are to similar effect, §§ T46-52.0 and T46-54.0, U46-9.0 and U46-11.0, and we reach the same conclusions with respect to reports and returns thereunder.C. Expense and delay. The trustee argues, as the referee held, that the imposition of obligations to withhold, Page 419 U. S. 53 report, and file returns places a burden on the administration of bankrupt estates that is at odds with economic and expeditious administration and with the spirit of the Act. He places some reliance, as did the referee, on the paper by Referee Hiller, The Folly of the Fogarty Case, 32 Ref.J. 54 (1958), where the author states that "the application of the Fogarty rule is sheer nonsense," and that the case is "out of harmony with sound bankruptcy law." Id. at 54, 56.There is, of course, an overriding concern in the Act with keeping fees and administrative expenses at a minimum so as to preserve as much of the estate as possible for the creditors. 3A W. Collier, Bankruptcy �� 62.05[1], 62.02[5] (14th ed.1972). And it cannot be denied that paperwork takes time and occasions expense. In this particular case, withholding must be computed on the 413 wage claims; returns (Forms W-2, W-3, and 941) must be prepared and furnished the claimant and the Internal Revenue Service; records must be maintained; and the taxes withheld must be remitted to the respective taxing entities.We are not persuaded, however, that this burden would be so undue as to be inconsistent with or violative of the spirit of the Act. It is the same burden, no more and no less, that any employer of the same size must bear, and it is the same burden that is borne by any receiver or arrangement debtor or any other fiduciary with a like number of employees. The burden is not disproportionate. [Footnote 7] Further, the Internal Revenue Service has endeavored to lighten the load by its alternative 25% combined bankruptcy Page 419 U. S. 54 withholding rate for income and FICA taxes. See n 2, supra. New York City has done the same with its 1% withholding rate. Neither should the burden make it necessary, as is so often and so easily suggested, to employ an accountant. Computations at the rates of 25% and 1%, respectively, are simple and elementary arithmetic exercises, hardly worthy of an accountant's talent; a high school student is able to make those computations, as is any bookkeeper, clerk, or the trustee himself. The added tasks of withholding, reporting, returning, and remitting are contemplated, in our view, by the Act. The interests of the taxing entities, who are creditors, too, and, through them, the interests of the public, outweigh the minuscule added burden for the estate. See Swarts v. Hammer, 194 U. S. 441, 194 U. S. 444 (1904). If relief is to be considered for bankrupt estates in this respect, it is a matter for legislative, not judicial, concern. There is nothing in the Act or in the Internal Revenue Code that relieves the trustee of these duties. Cf. §§ 7507, 108(b), 371, and 372 of the Internal Revenue Code, 26 U.S.C. §§ 7507, 108(b), 371, and 372.IIIProofs of ClaimThe trustee asserts that, because the United States and the city failed to file proofs of claim for the taxes at issue, payment thereof is barred. It is said that these taxing entities were on notice, by reason of Freedomland's bankruptcy schedules, that the bankrupt owed the priority wage claims; that these claims were to be filed within six months; that the entities could obtain an extension of time, under § 5n of the Act, 11 U.S.C. § 93(n), in which to compute and file their claims; and that they chose to ignore the referee's bar order directed, among others, to "taxing authorities and agencies," App. 24a. Page 419 U. S. 55This argument, in our view, misconceives the nature of the taxes that are to be withheld. Liability for the taxes accrues only when the wage is paid. Sections 3402(a) and 3101(a) of the 1954 Code; New York City Administrative Code §§ T46-51.0(a) and U46-8.0. The wages that are the subject of the wage claims, although earned before bankruptcy, were not paid prior to bankruptcy. Freedomland had incurred no liability for the taxes. Liability came into being only during bankruptcy. The taxes do not partake, therefore, of the nature of debts of the bankrupt for which proofs of claim must be filed.Furthermore, the filing of proofs by the United States and New York City obviously would serve no purpose here. Proofs apprise the trustee and other creditors of the existence of claims against the estate. The priority wage claims themselves, however, cover the gross wages earned and unpaid. These include any tax that is to be withheld. The tax is not an added increment.We conclude, therefore, that proofs of claim on the part of the United States and of New York City with respect to withholding taxes on priority wage claims are not required.IVWith withholding taxes thus determined as properly applicable to priority wage claims, their placement in the payment scale under § 64a must be determined. [Footnote 8] The choice lies between the first priority (costs and expenses Page 419 U. S. 56 of administration), urged by the United States; the second priority (wages and commissions, limited as the statute specifies), urged by the city of New York; the fourth priority ("taxes which became legally due and owing by the bankrupt"), urged by none of the parties here; and no priority at all. The third and fifth priorities clearly have no possible application to these taxes.We readily reject the fourth priority. The withholding taxes are not taxes which became due and owing by the bankrupt. As has been noted above, the taxes did not become due and owing at all until the claims, constituting wages, were paid. This took place after bankruptcy, not before. The situation, thus differs from that, where the bankrupt paid wages prior to bankruptcy, but the taxes withheld were not remitted to the taxing entities by the time of the inception of the bankruptcy proceeding. The latter would be taxes "which became legally due and owing by the bankrupt." See In re John Horne Co., 220 F.2d 33 (CA7 1955); Pomper v. United States, 196 F.2d 211 (CA2 1952).We similarly reject the first priority, although we recognize that this appears to be the favorite conclusion reached by those courts that have passed upon the issue. See n 3, supra. The leading case for this approach is United States v. Fogarty, supra. The Court there, however, without a statement of underlying reasons, merely concluded that the taxes "should be allowed and classified as an expense of administration," 164 F.2d at 33. In Lines v. California Dept. of Employment, supra, the court followed Fogarty and held that, because the tax accrued "subsequent to the filing of the petition in bankruptcy, such tax had the character of an expense of administration." 246 F.2d at 71.We think that more than a general observation that the taxes arose during bankruptcy is required to dignify Page 419 U. S. 57 withholding taxes with the prime status of first priority. We grant that the very language of § 64a(1) ("including the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition") necessarily indicates that first priority items include some in addition to those that preserve or develop the bankrupt estate. Withholding taxes, however, do not strike us as costs or expenses of doing business. They are attributable in their entirety to the availability of funds for the payment of priority wage claims. They accrue only as those claims are paid and, to the extent of that payment, the payment of the taxes should be assured. In addition, it is anomalous to accord withholding taxes a higher priority than the wage claims to which they so directly relate. They can be computed only upon the amount of funds available for payment of the wage claims, and should not have a computational base greater than those payments. The withholding taxes are, in full effect, part of the claims themselves and derive from and are carved out of the payment of those claims. We therefore fully agree with the Second Circuit's observation, 480 F.2d at 190: "Conceptually, the tax payments should be treated in the same way as the wages from which they derive and of which they are a part."We see nothing in United States v. Randall, 401 U. S. 513 (1971), with its observation, id. at 401 U. S. 515, that the Bankruptcy Act "is an overriding statement of federal policy on this question of priorities," that is contrary to the result we reach here. That case concerned § 7501(a) of the Internal Revenue Code, 26 U.S.C. § 7501(a), with its provision for a trust fund for withheld taxes, and the impact of that statute, when not complied with, upon payment of first priority costs and expenses of administration. Randall is not a holding, as the trustee would claim, Brief for Petitioner 119, that the withholding Page 419 U. S. 58 taxes do not have the same priority as the wage claims themselves.We therefore conclude that these federal and city withholding taxes are entitled, as are the priority wage claims from which they emerge, to second priority of payment under § 64a(2) of the Act, 11 U.S.C. § 104(a). [Footnote 9]The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtOtte v. United States, 419 U.S. 43 (1974)Otte v. United StatesNo. 73-375Argued October 15, 1974Decided November 19, 1974419 U.S. 43Syllabus1. A trustee in bankruptcy for an employer is required by the withholding provisions of the Internal Revenue Code of 1954 (IRC) and similar provisions of the New York City Administrative Code to withhold taxes from the payment of priority claims for wages earned by employees prior to the employer's bankruptcy, but unpaid at the inception of the bankruptcy proceeding. The payment of the wage claims is "payment of wages" under IRC § 3402(a) requiring withholding of income taxes, and is wages under IRC § 3102(a) requiring withholding of social security taxes, and an "employer," defined by IRC § 3401(d)(1) to include "the person having control of the payment" of wages, is present under § 3402(a). The same rationale applies to the withholding of city income taxes under the similar City Code provisions. Pp. 419 U. S. 48-52.2. From the obligation to withhold it follows that the trustee is also required to prepare and submit to the wage claimants and to the taxing authorities the reports and returns required of employers under IRC §§ 6051(a), 6001, and 6011 and similar provisions of the City Code. P. 419 U. S. 52.3. Requiring the trustee to withhold, report, and file returns does not unduly burden the administration of bankrupt estates so as to contravene the spirit of the Bankruptcy Act, for the burden is the same as any employer, or receiver, arrangement debtor, or other fiduciary, with a like number of employees must bear; moreover, both the IRC and the City Code allow the trustee to withhold taxes at a flat rate, thus facilitating the tax computation. Pp. 419 U. S. 52-54.4. Proofs of claim by the United States and New York City with respect to the withholding taxes on the priority wage claims are not required. Since tax liability accrues only when the wage is paid, and since the wages subject to the wage claims here, although earned before bankruptcy, were not paid prior thereto, so that the Page 419 U. S. 44 bankrupt employer's tax liability came into being only during bankruptcy, the taxes are not like debts of the bankrupt for which proofs of claim must be filed. Pp. 419 U. S. 54-55.5. The federal and city withholding taxes are entitled, as are the priority wage claims from which they emerge, to second priority of payment under § 64a(2) of the Bankruptcy Act. Such taxes are not within the fourth priority under § 64a(4), since they did not become due and owing by the bankrupt until after the wage claims were paid following bankruptcy. Nor are such taxes entitled to first priority under § 64a(1), since they are not costs or expenses of administration of the bankrupt estate, but are part of the wage clams themselves, and are carved out of the payment of those claims. Pp. 419 U. S. 55-58.480 F.2d 184, affirmed.BLACKMUN, J., delivered the opinion for a unanimous Court.

1994_93-7659

IA defendant convicted of capital murder in Alabama is entitled to a sentencing hearing before the trial jury, Ala. Code § 13A-5-46 (1994), unless jury participation is waived by both parties and approved by the court, § 13A-5-44. The State must prove statutory aggravating factors beyond a reasonable doubt and must disprove, by a preponderance of the evidence, any mitigating circumstance the defendant may proffer. § 13A-5-45(g). The jury then renders an advisory verdict. If it finds that aggravating factors, if any, outweigh mitigating circumstances, then the jury recommends death; otherwise, the verdict is life imprisonment without parole. § 13A-5-46(e). The jury may recommend death only if 10 jurors so agree, while a verdict of life imprisonment requires a simple majority. § 13A-5-46(f). The recommendation and vote tally are reported to the judge.The judge then must consider all available evidence and file a written statement detailing the defendant's crime, listing specific aggravating and mitigating factors, and imposing a sentence. Section 13A-5-47(e) provides:"In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to Section 13A-5-46(a) or 13A-546(g). While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court."If the defendant is sentenced to death, his conviction and sentence are automatically reviewed by an appellate court and, if affirmed, a writ of certiorari is granted by the Alabama Supreme Court as a matter of right. In addition to reviewing the record for errors, the appellate courts must507independently weigh aggravating and mitigating circumstances and determine whether the death penalty is disproportionate to sentences rendered in comparable cases. § 13A-5-53(b).Petitioner Louise Harris was married to the victim, a deputy sheriff, and was also having an affair with Lorenzo McCarter. She asked McCarter to find someone to kill her husband, and McCarter to that end approached a co-worker, who refused and reported the solicitation to his supervisor. McCarter then found willing accomplices in Michael Sockwell and Alex Hood, who were paid $100 and given a vague promise of more money upon performance. On the appointed night, as her husband left for work on the night shift, Harris called McCarter on his beeper to alert him. McCarter and Hood sat in a car parked on a nearby street, and Sockwell hid in the bushes next to a stop sign. As the victim stopped his car at the intersection, Sockwell sprang forth and shot him, point blank, with a shotgun. Harris was arrested after questioning, and McCarter agreed to bear witness to the conspiracy in exchange for the prosecutor's promise not to seek the death penalty. McCarter testified that Harris had asked him to kill her husband so they could share in his death benefits, which totaled about $250,000.The jury convicted Harris of capital murder. At the sentencing hearing, a number of witnesses attested to her good background and strong character. She was rearing seven children, held three jobs simultaneously, and participated actively in her church. The jury recommended, by a 7 to 5 vote, that she be imprisoned for life without parole. The trial judge then considered her sentence, finding the existence of one aggravating circumstance, that the murder was committed for pecuniary gain, and one statutory mitigator, that Harris had no prior criminal record. The trial judge also found as nonstatutory mitigating circumstances that Harris was a hardworking, respected member of her church and community. Noting that Harris had planned the crime508and financed its commission and stood to benefit the most from her husband's murder, the judge concluded that "the one statutory aggravating circumstance found and considered far outweighs all of the non-statutory mitigating circumstances, and that the sentence ought to be death." App. 7. In separate proceedings, all the conspirators were convicted of capital murder. McCarter and Hood received prison terms of life without parole; Sockwell, the triggerman, was sentenced to death after the trial judge rejected a jury recommendation, again by a 7 to 5 vote, of life imprisonment.The Alabama Court of Criminal Appeals affirmed Harris' conviction and sentence. 632 So. 2d 503 (1992). It noted that Alabama's death penalty statute is based on Florida's sentencing scheme, which we have held to be constitutional, see Spaziano v. Florida, 468 U. S. 447, 457-467 (1984); Proffltt v. Florida, 428 U. S. 242, 252 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). One difference is that jury recommendations are to be given "great weight" by the sentencing judge in Florida, see Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975), whereas Alabama only requires the judge to "consider" the advisory verdict. The Court of Criminal Appeals rejected Harris' contention that Florida's so-called Tedder standard is constitutionally required, however. 632 So. 2d, at 538. As the statute prescribes, the court then reviewed the record for prejudicial errors and independently weighed the aggravating and mitigating circumstances. Finding no errors and concluding that death was the proper sentence, the court affirmed. Id., at 542543. The Alabama Supreme Court also affirmed, discussing an unrelated claim. 632 So. 2d 543 (1993). We granted certiorari. 512 U. S. 1234 (1994).IIAlabama's capital sentencing scheme is much like that of Florida. Both require jury participation in the sentencing process but give ultimate sentencing authority to the509trial judge. Ala. Code § 13A-5-47(e) (1994); Fla. Stat. § 921.141(3) (1985). A sentence of death in both States is subject to automatic appellate review. Ala. Code § 13A5-55 (1994); Fla. Stat. § 921.141(4) (1985). In Florida, as in Alabama, the reviewing courts must independently weigh aggravating and mitigating circumstances to determine the propriety of the death sentence, Ala. Code § 13A-5-53(b)(2) (1994); Harvard v. State, 375 So. 2d 833 (Fla.), cert. denied, 441 U. S. 956 (1977), and must decide whether the penalty is excessive or disproportionate compared to similar cases, Ala. Code § 13A-5-53(b)(3) (1994); Williams v. State, 437 So. 2d 133 (Fla. 1983), cert. denied, 466 U. S. 909 (1984).The two States differ in one important respect. The Florida Supreme Court has opined that the trial judge must give "great weight" to the jury's recommendation and may not override the advisory verdict of life unless "the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ." Tedder v. State, supra, at 910. The same deference inures to a jury recommendation of death. See Grossman v. State, 525 So. 2d 833, 839, n. 1 (Fla. 1988) (collecting cases). The Alabama capital sentencing statute, by contrast, requires only that the judge "consider" the jury's recommendation, and Alabama courts have refused to read the Tedder standard into the statute. See Ex parte Jones, 456 So. 2d 380, 382-383 (Ala. 1984). This distinction between the Alabama and Florida schemes forms the controversy in this case-whether the Eighth Amendment to the Constitution requires the sentencing judge to ascribe any particular weight to the verdict of an advisory jury.We have held Florida's capital sentencing statute to be constitutional. See Proffitt v. Florida, supra; Spaziano v. Florida, supra. In Spaziano, we addressed the specific question whether Florida could, consistent with the Constitution, vest sentencing authority in the judge and relegate the jury to an advisory role. While acknowledging that sen-510tencing power resides with the jury in most States, we made clear that the "Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws." Id., at 464. We therefore rejected the contention that "placing the responsibility on a trial judge to impose the sentence in a capital case is so fundamentally at odds with contemporary standards of fairness and decency that Florida must be required to alter its scheme and give final authority to the jury to make the life-or-death decision." Id., at 465; see also Walton v. Arizona, 497 U. S. 639, 648 (1990); Clemons v. Mississippi, 494 U. S. 738, 745 (1990).Asserting that the death penalty serves no function in "rehabilitation," "incapacitation," or "deterren[ce]," JUSTICE STEVENS argues that a jury "should bear the responsibility to express the conscience of the community on the ultimate question of life or death in particular cases." Post, at 517, 518 (internal quotation marks omitted). What purpose is served by capital punishment and how a State should implement its capital punishment scheme-to the extent that those questions involve only policy issues-are matters over which we, as judges, have no jurisdiction. Our power of judicial review legitimately extends only to determine whether the policy choices of the community, expressed through its legislative enactments, comport with the Constitution. As we have noted elsewhere, "while we have an obligation to insure that constitutional bounds are not overreached, we may not act as judges as we might as legislators." Gregg v. Georgia, 428 U. S. 153, 174-175 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.).In various opinions on the Florida statute we have spoken favorably of the deference that a judge must accord the jury verdict under Florida law. While rejecting an ex post facto challenge in Dobbert v. Florida, 432 U. S. 282, 294 (1977), we noted the "crucial protection" provided by the standard of Tedder v. State, supra, at 910. In the same fashion, in511dismissing Spaziano's argument that the Tedder standard was wrongly applied by the lower courts in his case, we stated:"This Court already has recognized the significant safeguard the Tedder standard affords a capital defendant in Florida. See Dobbert v. Florida, 432 U. S. 282, 294-295 (1977). See also Proffitt, 428 U. S., at 249 (joint opinion). We are satisfied that the Florida Supreme Court takes that standard seriously and has not hesitated to reverse a trial court if it derogates the jury's role." Spaziano, supra, at 465.These statements of approbation, however, do not mean that the Tedder standard is constitutionally required. As we stated in Spaziano immediately following the passage quoted above: "Our responsibility, however, is not to secondguess the deference accorded the jury's recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory." 468 U. S., at 465. We thus made clear that, our praise for Tedder notwithstanding, the hallmark of the analysis is not the particular weight a State chooses to place upon the jury's advice, but whether the scheme adequately channels the sentencer's discretion so as to prevent arbitrary results. See also Proffitt, 428 U. S., at 252-253 (joint opinion of Stewart, Powell, and STEVENS, JJ.).Consistent with established constitutional law, Alabama has chosen to guide the sentencing decision by requiring the jury and judge to weigh aggravating and mitigating circumstances. Harris does not challenge this legislative choice. And she objects to neither the vesting of sentencing authority in the judge nor the requirement that the advisory verdict be considered in the process. What she seeks instead is a constitutional mandate as to how that verdict should be considered; relying on Florida's standard, she suggests that the judge must give "great weight" to the jury's advice.512We have rejected the notion that "a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required." Franklin v. Lynaugh, 487 U. S. 164, 179 (1988). Equally settled is the corollary that the Constitution does not require a State to ascribe any specific weight to particular factors, either in aggravation or mitigation, to be considered by the sentencer. See, e. g., Blystone v. Pennsylvania, 494 U. S. 299, 306-307 (1990); Eddings v. Oklahoma, 455 U. S. 104, 113-115 (1982); Proffitt, supra, at 257-258 (joint opinion of Stewart, Powell, and STEVENS, JJ.). To require that "great weight" be given to the jury recommendation here, one of the criteria to be considered by the sentencer, would offend these established principles and place within constitutional ambit micromanagement tasks that properly rest within the State's discretion to administer its criminal justice system. We therefore hold that the Eighth Amendment does not require the State to define the weight the sentencing judge must accord an advisory jury verdict.Harris argues that, under Alabama law, the verdict is more than advisory and that the jury in fact enjoys the key sentencing role, subject only to review by the judge. For support, she points to Alabama cases reversing death sentences where prejudicial errors were committed before the advisory jury. See Ex parte Williams, 556 So. 2d 744, 745 (Ala. 1987). Unless the jury played a key role, so goes the argument, reversal would not be warranted because the sentencing judge was not exposed to the same harmful error. The flaw in this contention is that reversal is proper so long as the jury recommendation plays a role in the judge's decision, not necessarily a determinative one. If the judge must consider the jury verdict in sentencing a capital defendant, as the statute plainly requires, then it follows that a sentence is invalid if the recommendation upon which it partially rests was rendered erroneously. In Espinosa v. Florida, 505 U. S. 1079 (1992), the advisory jury, but not the sentencing513judge, was presented with an invalid aggravating factor. We summarily reversed the death sentence, explaining that "Florida has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court's process of weighing aggravating and mitigating circumstances." Id., at 1082. Error is committed when the jury considers an invalid factor and its verdict is in turn considered by the judge: "This kind of indirect weighing of an invalid aggravating factor creates the same potential for arbitrariness as the direct weighing of an invalid aggravating factor, and the result, therefore, was error." Ibid. (citation omitted). Such consequential error attaches whenever the jury recommendation is considered in the process, not only when it is given great weight by the judge.We have observed in the Florida context that permitting the trial judge to reject the jury's advisory verdict may afford capital defendants "a second chance for life with the trial judge," Dobbert, 432 U. S., at 296. In practice, however, Alabama's sentencing scheme has yielded some ostensibly surprising statistics. According to the Alabama Prison Project, there have been only 5 cases in which the judge rejected an advisory verdict of death, compared to 47 instances where the judge imposed a death sentence over a jury recommendation of life. Statistics compiled by the Alabama Prison Project (Nov. 29, 1994) (lodged with the Clerk of this Court). But these numbers do not tell the whole story. We do not know, for instance, how many cases in which a jury recommendation of life imprisonment is adopted would have ended differently had the judge not been required to consider the jury's advice. Without such a subjective look into the minds of the decisionmakers, the deceptively objective numbers afford at best an incomplete picture. Even assuming that these statistics reflect a true view of capital sentencing in Alabama, they say little about514whether the scheme is constitutional. That question turns not solely on a numerical tabulation of actual death sentences as compared to a hypothetical alternative, but rather on whether the penalties imposed are the product of properly guided discretion and not of arbitrary whim. If the Alabama statute indeed has not had the effect that we or its drafters had anticipated, such unintended results would be of little constitutional consequence. An ineffectual law is for the state legislature to amend, not for us to annul.Harris draws our attention to apparent disparities in the weight given to jury verdicts in different cases in Alabama. For example, the trial judge here did not specify his reason for rejecting the jury's advice but in another case wrote that he accorded "great weight" to the recommendation, State v. Coral, No. CC-88-741 (Montgomery Cty., June 26, 1992), Alabama Capital Sentencing Orders, p. 72 (lodged with the Clerk of this Court). In rejecting the jury verdict, other judges have commented variously that there was a "reasonable basis" to do so, State v. Parker, No. CC-88-105 (Colbert Cty., Dec. 3, 1991), Alabama Capital Sentencing Orders, at 408, that the verdict was "unquestionably a bizarre result," Ex parte Hays, 518 So. 2d 768, 777 (Ala. 1986), or that "if this were not a proper case for the death penalty to be imposed, a proper case can scarcely be imagined," State v. Frazier, No. CC-85-3291 (Mobile Cty., July 31, 1990), Alabama Capital Sentencing Orders, at 139. Juxtaposing these statements, Harris argues that the Alabama statute permits judges to reject arbitrarily the advisory verdict, thereby abusing their sentencing discretion.But these statements do not indicate that the judges have divergent understandings of the statutory requirement that the jury verdicts be considered; they simply illustrate how different judges have "considered" the jury's advice. There is no reason to expect that the advisory verdicts will be treated uniformly in every case. The Alabama statute provides that the weighing process "shall not be defined to mean515a mere tallying of aggravating and mitigating circumstances for the purpose of numerical comparison," Ala. Code § 13A5-48 (1994), which is no less than what the Constitution requires, see Proffitt, 428 U. S., at 258 (joint opinion of Stewart, Powell, and STEVENS, JJ.). The disparate treatment of jury verdicts simply reflects the fact that, in the subjective weighing process, the emphasis given to each decisional criterion must of necessity vary in order to account for the particular circumstances of each case. See Eddings v. Oklahoma, 455 U. S., at 112 ("[A] consistency produced by ignoring individual differences is a false consistency"). In any event, Harris does not show how the various statements affect her case. She does not bring an equal protection claim, and she does not contest the lower courts' conclusion that her sentence is proportionate to that imposed in similar cases. The sentiments expressed in unrelated cases do not render her punishment violative of the Eighth Amendment.The Constitution permits the trial judge, acting alone, to impose a capital sentence. It is thus not offended when a State further requires the sentencing judge to consider a jury's recommendation and trusts the judge to give it the proper weight. Accordingly, we affirm the judgment of the Alabama Supreme Court.It is so ordered

OCTOBER TERM, 1994SyllabusHARRIS v. ALABAMACERTIORARI TO THE SUPREME COURT OF ALABAMA No. 93-7659. Argued December 5, 1994-Decided February 22,1995Alabama law vests capital sentencing authority in the trial judge, but requires the judge to "consider" an advisory jury verdict. After convicting petitioner Harris of capital murder, the jury recommended that she be imprisoned for life without parole, but the trial judge sentenced her to death upon concluding that the statutory aggravating circumstance found and considered outweighed all of the mitigating circumstances. The Alabama Court of Criminal Appeals affirmed the conviction and sentence, rejecting Harris' argument that the capital sentencing statute is unconstitutional because it does not specify the weight the judge must give to the jury's recommendation and thus permits the arbitrary imposition of the death penalty. The Alabama Supreme Court affirmed.Held: The Eighth Amendment does not require the State to define the weight the sentencing judge must give to an advisory jury verdict. Pp. 508-515.(a) Because the Constitution permits the trial judge, acting alone, to impose a capital sentence, see, e. g., Spaziano v. Florida, 468 U. S. 447, 465, it is not offended when a State further requires the judge to consider a jury recommendation and trusts the judge to give it the proper weight. Alabama's capital sentencing scheme is much like Florida's, except that a Florida sentencing judge is required to give the jury's recommendations "great weight," see Tedder v. State, 322 So. 2d 908, 910 (Fla.), while an Alabama judge is not. Although this Court has spoken favorably of the so-called Tedder standard, see, e. g., Spaziano, supra, at 465, it has also made clear that the hallmark of the analysis is not the particular weight a State chooses to place upon the jury's advice, but whether the scheme adequately channels the sentencer's discretion so as to prevent arbitrary results, see, e. g., 468 U. S., at 465. To impose the Tedder standard here would offend established principles governing the criteria to be considered by the sentencer, see, e. g., Franklin v. Lynaugh, 487 U. S. 164, 179, and would place within constitutional ambit micromanagement tasks that properly rest within the State's discretion to administer its criminal justice system. Pp. 508-511.(b) Harris' arguments for requiring that "great weight" be given to the jury's advice are unpersuasive. First, Alabama cases reversing death sentences for prejudicial errors committed before the advisory jury do not demonstrate that the jury's role is in fact determinative, but505simply that a sentence imposed by the judge is invalid if the recommendation on which it partially rests was rendered erroneously. Second, although statistics demonstrate that there have been only 5 cases in which an Alabama judge rejected an advisory verdict of death, compared to 47 instances where the judge imposed a death sentence over a jury recommendation of life, these numbers do not tell the whole story because they do not indicate, for example, how many cases in which a jury recommendation of life was adopted would have ended differently had the judge not been required to consider the jury's advice. Moreover, the statistics say little about whether the Alabama scheme is constitutional, a question which turns not solely on numerical tabulations of sentences, but rather on whether the penalties imposed are the product of properly guided discretion and not of arbitrary whim. Finally, apparent disparities in the weight given to jury verdicts in specific Alabama cases do not indicate that the judges have divergent understandings of the statutory requirement that such verdicts be considered; they simply reflect the fact that, in the subjective weighing process, the emphasis given to each decisional criterion must of necessity vary to account for the particular circumstances in each case. In any event, Harris does not show how these disparities affect her case. Pp. 511-515.632 So. 2d 543, affirmed.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 515.Ruth E. Friedman argued the cause for petitioner. With her on the brief was Bryan A. Stevenson.P. David Bjurberg, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was James H. Evans, Attorney General.JUSTICE O'CONNOR delivered the opinion of the Court. Alabama law vests capital sentencing authority in the trial judge, but requires the judge to consider an advisory jury verdict. We granted certiorari to consider petitioner's argument that Alabama's capital sentencing statute is unconstitutional because it does not specify the weight the judge must give to the jury's recommendation and thus permits arbitrary imposition of the death penalty.506Full Text of Opinion

1961_2

MR. JUSTICE GOLDBERG delivered the opinion of the Court.We are called upon in these two cases to decide the grave and fundamental problem, common to both, of the constitutionality of Acts of Congress which divest an American of his citizenship for "[d]eparting from or remaining outside of the jurisdiction of the United States in time of war or . . . national emergency for the purpose of evading or avoiding training and service" in the Nation's armed forces. [Footnote 1] Page 372 U. S. 147I. THE FACTS.A. Mendoza-Martinez -- No. 2.The facts of both cases are not in dispute. Mendoza-Martinez, the appellee in No. 2, was born in this country in 1922, and therefore acquired American citizenship by birth. By reason of his parentage, he also, under Mexican law, gained Mexican citizenship, thereby possessing dual nationality. In 1942, he departed from this country and went to Mexico, solely, as he admits, for the purpose of evading military service in our armed forces. He concedes that he remained there for that sole purpose until November, 1946, when he voluntarily returned to this country. In 1947, in the United States District Court for the Southern District of California, he pleaded guilty to and was convicted of evasion of his service obligations in violation of § 11 of the Selective Training and Service Act of 1940. [Footnote 2] He served the imposed sentence of a year and a day. For all that appears in the record, he was, upon his release, allowed to reside undisturbed in this country until Page 372 U. S. 148 1953, when, after a lapse of five years, he was served with a warrant of arrest in deportation proceedings. This was premised on the assertion that, by remaining outside the United States to avoid military service after September 27, 1944, when § 401(j) took effect, he had lost his American citizenship. Following hearing, the Attorney General's special inquiry officer sustained the warrant and ordered that Mendoza-Martinez be deported as an alien. He appealed to the Board of Immigration Appeals of the Department of Justice, which dismissed his appeal.Thereafter, Mendoza-Martinez brought a declaratory judgment action in the Federal District Court for the Southern District of California, seeking a declaration of his status as a citizen, of the unconstitutionality of § 401(j), and of the voidness of all orders of deportation directed against him. A single-judge District Court, in an unreported decision, entered judgment against Mendoza-Martinez in 1955, holding that, by virtue of § 401(j), which the court held to be constitutional, he had lost his nationality by remaining outside the jurisdiction of the United States after September 27, 1944. The Court of Appeals for the Ninth Circuit affirmed the judgment, 238 F.2d 239. This Court, in 1958, Mendoza-Martinez v. Mackey, 356 U. S. 258, granted certiorari, vacated the judgment, and remanded the cause to the District Court for reconsideration in light of its decision a week earlier in Trop v. Dulles, 356 U. S. 86.On September 24, 1958, the District Court announced its new decision, also unreported, that, in light of Trop, § 401(j) is unconstitutional because not based on any "rational nexus . . . between the content of a specific power in Congress and the action of Congress in carrying that power into execution." On direct appeal under 28 U.S.C. § 1252, this Court noted probable jurisdiction, Mackey v. Mendoza-Martinez, 359 U.S. 933, and then, of its own motion, remanded the cause, this time with permission to the parties to amend Page 372 U. S. 149 the pleadings to put in issue the question of whether the facts as determined on the draft evasion conviction in 1947 collaterally estopped the Attorney General from now claiming that Mendoza-Martinez had lost his American citizenship while in Mexico. Mackey v. Mendoza-Martinez, 362 U. S. 384.The District Court on remand held that the Government was not collaterally estopped because the 1947 criminal proceedings entailed no determination of Mendoza-Martinez' citizenship. The court, however, reaffirmed its previous holding that § 401(j) is unconstitutional, adding as a further basis of invalidity that § 401(j) is"essentially penal in character, and deprives the plaintiff of procedural due process. . . . [T]he requirements of procedural due process are not satisfied by the administrative hearing of the Immigration Service nor in this present proceedings. [Footnote 3]"The Attorney General's current appeal is from this decision. Probable jurisdiction was noted on February 20, 1961, Rogers v. Mendoza-Martinez, 365 U.S. 809. The case was argued last Term, and restored to the calendar for reargument this Term, 369 U.S. 832.B. Cort -- No. 3.Cort, the appellee in No. 3, is also a native-born American, born in Boston in 1927. Unlike Mendoza-Martinez, he has no dual nationality. His wife and two young children are likewise American citizens by birth. Following receipt of his M.D. degree from the Yale University School of Medicine in 1951, he went to England for the purpose of undertaking a position as a Research Fellow at Cambridge University. He had earlier registered in timely and proper fashion for the draft, and, shortly before Page 372 U. S. 150 his departure, supplemented his regular Selective Service registration by registering under the newly enacted Doctors Draft Act. [Footnote 4] In late 1951, he received a series of letters from the American Embassy in London instructing him to deliver his passport to it to be made "valid only for return to the United States." He did not respond to these demands because, he now says in an affidavit filed in the trial court in this proceeding,"I believed that they were unlawful, and I did not wish to subject myself to this and similar forms of political persecution then prevalent in the United States. . . . I was engaged in important research and teaching work in physiology, and I desired to continue earning a livelihood for my family."Cort had been a member of the Communist Party while he was a medical student at Yale from 1946 to 1951, except for the academic year 1948-1949, when he was in England. In late 1952, while still in England at Cambridge, he accepted a teaching position for the following academic year at Harvard University Medical School. When, however, the school discovered through further correspondence that he had not yet fulfilled his military obligations, it advised him that it did not regard his teaching position as essential enough to support his deferment from military service in order to enter upon it. Thereafter, his local draft board in Brookline, Massachusetts, notified him in February, 1953, that his request for deferment was denied and that he should report within 30 days for a physical examination either in Brookline or in Frankfurt, Germany. On June 4 and on July 3, the draft board again sent Cort notices to report for a physical examination, the first notice for examination on July 1 in Brookline, and the second for examination within 30 days in Frankfurt. He did not appear at either place, and the board, on August 13, ordered him to report for induction on September 14, Page 372 U. S. 151 1953. He did not report, and consequently he was indicted in December, 1954, for violation of § 12(a) of the Selective Service Act of 1948 [Footnote 5] by reason of his failure to report for induction. This indictment is still outstanding. His complaint in this action states that he did not report for induction because he believed"that the induction order was not issued in good faith to secure his military services, that his past political associations and present physical disabilities made him ineligible for such service, and that he was being ordered to report back to the United States to be served with a Congressional committee subpoena or indicted under the Smith Act. . . ."Meanwhile, the British Home Office had refused to renew his residence permit, and, in mid-1954, he and his family moved to Prague, Czechoslovakia, where he took a position as Senior Scientific Worker at the Cardiovascular Institute. He has lived there since.In April, 1959, his previous United States passport having long since expired, Cort applied at the American Embassy in Prague for a new one. His complaint in this action states that he wanted the passport"in order to return to the United States with his wife and children so that he might fulfill his obligations under the Selective Service laws and his wife might secure medical treatment for multiple sclerosis."Mrs. Cort received a passport and came to this country temporarily in late 1959, both for purposes of medical treatment and to facilitate arrangements for her husband's return. Cort's application, however, was denied on the ground that he had, by his failure to report for induction on September 14, 1953, as ordered, remained outside the country to avoid military service, and thereby automatically forfeited his American citizenship by virtue of § 349(a)(10) of the Immigration Page 372 U. S. 152 and Nationality Act of 1952, which had superseded § 401(j). The State Department's Passport Board of Review affirmed the finding of expatriation, and the Department's legal adviser affirmed the decision. Cort, through counsel, thereupon brought this suit in the District Court for the District of Columbia for a declaratory judgment that he is a citizen of the United States, for an injunction against enforcement of § 349(a)(10) because of its unconstitutionality, and for an order directing revocation of the certificate of loss of nationality and issuance of a United States passport to him. Pursuant to Cort's demand, a three-judge court was convened. The court held that he had remained outside the United States to evade military service, but that § 349(a)(10) is unconstitutional because "We perceive no substantial difference between the constitutional issue in the Trop case and the one facing us." It therefore concluded that Cort is a citizen of this country, and enjoined the Secretary of State from withholding a passport from Cort on the ground that he is not a citizen and from otherwise interfering with his rights of citizenship. Cort v. Herter, D.C., 187 F. Supp. 683.The Secretary of State appealed directly to this Court, 28 U.S.C. §§ 1252, 1253, which postponed the question of jurisdiction to the hearing of the case on the merits. Herter v. Cort, 365 U.S. 808. The preliminary question of jurisdiction was affirmatively resolved last Term, Rusk v. Cort, 369 U. S. 367, leaving the issue of the validity of § 349(a)(10) for decision now, after reargument. 369 U.S. at 380.Before we consider the essential question in these cases, the constitutionality of §§ 401(j) and 349(a)(10), two preliminary issues peculiar to No. 2 must be discussed.II. THE THREE-JUDGE COURT ISSUEAt the threshold in Mendoza-Martinez' case is the question whether the proceeding should have been heard by a three-judge District Court convened pursuant to 28 Page 372 U. S. 153 U.S.C. § 2282, which requires such a tribunal as a prerequisite to the granting of any"interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States. . . ."If § 2282 governs this litigation, we are once again faced with the prospect of a remand and a new trial, this time by a three-judge panel. We are, however, satisfied that the case was properly heard by a single district judge, as both parties urge.In the complaint under which the case was tried the first and second times, Mendoza-Martinez asked for no injunctive relief, and none was granted. In the amended complaint which he filed in 1960 to put in issue the question of collateral estoppel, he added a prayer asking the court to adjudge "that defendants herein are enjoined and restrained henceforth from enforcing" all deportation orders against him. However, it is abundantly clear from the amended trial stipulation which was entered into by the parties and approved by the judge to "govern the course of the trial," that the issues were framed so as not to contemplate any injunctive relief. The first question was articulated only in terms of whether the Government was"herein estopped by reason of the indictment and conviction of plaintiff for (draft evasion) . . . from denying that the plaintiff is now a national and citizen of the United States."The second question asked only for a declaration as to whether § 401(j) was "unconstitutional, either on its face or as applied to the plaintiff herein." The conclusion that no request for injunctive relief nor even any contemplation of it attended the case as it went to trial is borne out by the total lack of reference to injunctive relief in the District Court's memorandum opinion, findings of fact and conclusions of law, and judgment. See Mendoza-Martinez v. Rogers, 192 F. Supp. 1. The relief granted was merely a declaration that the 1944 Amendment "is Page 372 U. S. 154 unconstitutional, both on its face and as applied to the plaintiff herein," and "[t]hat the plaintiff is now, and ever since the date of his birth has been, a national and citizen of the United States." Thus, despite the amendment to Mendoza-Martinez' complaint before the third trial, it is clear that neither the parties nor the judge at any relevant time regarded the action as one in which injunctive relief was material to the disposition of the case. Since no injunction restraining the enforcement of § 401(j) was at issue, § 2282 was not, in terms, applicable to require the convening of a three-judge District Court.Whether an action solely for declaratory relief would under all circumstances be inappropriate for consideration by a three-judge court we need not now decide, for it is clear that, in the present case, the congressional policy underlying the statute was not frustrated by trial before a single judge. The legislative history of § 2282 and of its complement, § 2281, [Footnote 6] requiring three judges to hear injunctive suits directed against federal and state legislation, respectively, indicates that these sections were enacted to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive order. Section 2281"was a means of protection the increasing body of state legislation regulating economic enterprise from invalidation by a conventional suit in equity. . . . The crux of the business is procedural protection against an improvident statewide doom by a federal court of a state's legislative policy. This was the aim of Congress. . . ."Phillips v. United States, 312 U. S. 246, Page 372 U. S. 155 312 U. S. 250-251. Repeatedly emphasized during the congressional debates on § 2282 were the heavy pecuniary costs of the unforeseen and debilitating interruptions in the administration of federal law which could be wrought by a single judge's order, and the great burdens entailed in coping with harassing actions brought one after another to challenge the operation of an entire statutory scheme, wherever jurisdiction over government officials could be acquired, until a judge was ultimately found who would grant the desired injunction. 81 Cong.Rec. 479-481, 2142-2143 (1937).The present action, which in form was for declaratory relief and which in its agreed substance did not contemplate injunctive relief, involves none of the dangers to which Congress was addressing itself. The relief sought an the order entered affected an Act of Congress in a totally noncoercive fashion. There was no interdiction of the operation at large of the statute. It was declared unconstitutional, but without even an injunctive sanction against the application of the statute by the Government to Mendoza-Martinez. Pending review in the Court of Appeals and in this Court, the Government has been free to continue to apply the statute. That being the case, there is here no conflict with the purpose of Congress to provide for the convocation of a three-judge court whenever the operation of a statutory scheme may be immediately disrupted before a final judicial determination of the validity of the trial court's order can be obtained. Thus, there was no reason whatever in this case to invoke the special and extraordinary procedure of a three-judge court. Compare Schneider v. Rusk, 372 U. S. 224, decided this day.III. THE COLLATERAL ESTOPPEL ISSUE.Mendoza-Martinez' second amended complaint, filed in 1960 pursuant to the suggestion of this Court earlier that year, charged that"the government of the United States Page 372 U. S. 156 has admitted the fact of his United States citizenship by virtue of the indictment and judgment of conviction (in 1947 for draft evasion) . . . , and is therefore collaterally estopped now to deny such citizenship. . . ."The District Court rejected this assertion. Mendoza-Martinez renews it here as an alternative ground for upholding the judgment entered below "That the plaintiff is now, and ever since the date of his birth has been, a national and citizen of the United States." 192 F. Supp. at 3.We too reject Mendoza-Martinez' contention on this point. His argument, stated more fully, is as follows: the Selective Training and Service Act of 1940 applies only to citizens and resident aliens. Both the indictment and the judgment spoke in terms of his having remained the Mexico for the entire period from November 15, 1942, until November 1, 1946, when he returned to this country. [Footnote 7] Page 372 U. S. 157 For the period from September 27, 1944, when § 401(j) became effective, until November 1, 1946, he could not have been in violation of our draft laws unless he remained a citizen of the United States, since the draft laws do not apply to nonresident aliens. Therefore, he concludes, the Government must be taken to have admitted that he did not lose his citizenship by remaining outside the country after September 27, 1944, because it charged him with draft evasion for that period, as well as for the period preceding that date.It is true that, "as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered," Cromwell v. County of Sac, 94 U. S. 351, 94 U. S. 353, the findings in a prior criminal proceeding may estop a party in a subsequent civil action, Emich Motors Corp. v. General Motors Corp., 340 U. S. 558, 340 U. S. 568-569, and that the United States may be estopped to deny even an erroneous prior determination of status, United States v. Moser, 266 U. S. 236. However, Mendoza-Martinez' citizenship status was not at issue in his trial for draft evasion. Putting aside the fact that he pleaded guilty, which in itself may support the conclusion that his citizenship status was not litigated and thereby without more preclude his assertion of estoppel, [Footnote 8] the basic flaw in his argument is in the assertion that he was charged with a continuing violation of the draft laws while he remained in Mexico, particularly after September 27, 1944, the date on which § 401(j) became effective. He was, in fact, charged with a violation "on or about November 15, 1942," because he"did knowingly evade service . . . in that he did knowingly depart from Page 372 U. S. 158 the United States and go to a foreign county, namely, Mexico, for the purpose of evading service. . . ."This constituted the alleged violation. The additional language that he "did there remain until on or about November 1, 1946," was merely surplusage in relation to the substantive offense, although it might, for example, serve a purpose in relation to problems connected with the tolling of the statute of limitations. No language appears charging the elements of violation -- knowledge and purpose to evade -- in connection with it. The only crime charged is what happened "on or about November 15, 1942," and conviction thereon, even if it had entailed a finding as to Mendoza-Martinez' citizenship on that date, [Footnote 9] in nowise estopped the Government with reference to his status after September 27, 1944.The trial court's judgment was worded no differently. Mendoza-Martinez was convicted of:"Having, on or about November 15th 1942, knowingly departed from the United States to Mexico, for the purpose of evading service in the land or naval forces of the United States and having remained there until on or about November 1st, 1946.""Again, the language relating to the time during which Mendoza-Martinez remained in Mexico was not tied to the words stating knowledge and purpose to evade service. Thus, the conviction entailed no actual or necessary finding about Mendoza-Martinez' citizenship status between September 27, 1944, and November 1, 1946, and the Government was not estopped from denying his citizenship in the present proceedings. "Page 372 U. S. 159IV. THE CONSTITUTIONAL ISSUESA. Basic PrinciplesSince the validity of an Act of Congress is involved, we begin our analysis mindful that the function we are now discharging is "the gravest and most delicate duty that this Court is called upon to perform." Blodgett v. Holden, 275 U. S. 142, 275 U. S. 148 (separate opinion of Holmes, J.). This responsibility we here fulfill with all respect for the powers of Congress, but with recognition of the transcendent status of our Constitution.We deal with the contending constitutional arguments in the context of certain basic and sometimes conflicting principles. Citizenship is a most precious right. It is expressly guaranteed by the Fourteenth Amendment to the Constitution, which speaks in the most positive terms. [Footnote 10] The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights. [Footnote 11] While it confirms citizenship rights, plainly there are imperative obligations of citizenship performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency. The powers of Congress to require military service for the common defense are broad and far-reaching, [Footnote 12] Page 372 U. S. 160 for, while the Constitution protects against invasions of individual rights, it is not a suicide pact. Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this indispensable function of government. [Footnote 13]These principles, stemming, on the one hand, from the precious nature of the constitutionally guaranteed rights of citizenship, and, on the other, from the powers of Congress and the related obligations of individual citizens, are urged upon us by the parties here. The Government argues that §§ 401(j) and 349(a)(10) are valid as an exercise of Congress' power over foreign affairs, of its war power, and of the inherent sovereignty of the Government. Appellees urge the provisions' invalidity as not within any of the powers asserted, and as imposing a cruel and unusual punishment.We recognize at the outset that we are confronted here with an issue of the utmost import. Deprivation of citizenship -- particularly American citizenship, which is "one of the most valuable rights in the world today," Report of the President's Commission on Immigration and Naturalization (1953), 235 -- has grave practical consequences. An expatriate who, like Cort, had no other nationality becomes a stateless person -- a person who not only has no rights as an American citizen, but no membership in any national entity whatsoever."Such individuals as do not possess any nationality enjoy, in general, no protection whatever, and if they are aggrieved by a State, they have no means of redress, since there is no State which is competent to take up their case. As far as the Law of Nations Page 372 U. S. 161 is concerned, there is, apart from restraints of morality or obligations expressly laid down by treaty . . . , no restriction whatever to cause a State to abstain from maltreating to any extent such stateless individuals."1 Oppenheim, International Law (8th ed., Lauterpacht, 1955), § 291, at 640. [Footnote 14] The calamity is "[n]ot the loss of specific rights, then, but the loss of a community willing and able to guarantee any rights whatsoever. . . ." Arendt, The Origins of Totalitarianism (1951), 294. The stateless person may end up shunted from nation to nation, there being no one obligated or willing to receive him, [Footnote 15] or, as in Cort's case, may receive the dubious sanctuary of a Communist regime lacking the essential liberties precious to American citizenship. [Footnote 16] Page 372 U. S. 162B. The Perez and Trop CasesThe basic principles here involved, the gravity of the issue, and the arguments bearing upon Congress' power to forfeit citizenship were considered by the Court in relation to different provisions of the Nationality Act of 1940 in two cases decided on the same day less than five years ago: Perez v. Brownell, 356 U. S. 44, and Trop v. Dulles, 356 U. S. 86.In Perez, § 401(e), which imposes loss of nationality for "[v]oting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory," was upheld by a closely divided Court as a constitutional exercise of Congress' power to regulate foreign affairs. The Court reasoned that, since withdrawal of citizenship of Americans who vote in foreign elections is reasonably calculated to effect the avoidance of embarrassment in the conduct of foreign relations, such withdrawal is within the power of Congress, acting under the Necessary and Proper Clause. Since the Court sustained the application of § 401(e) to denationalize Perez, it did not have to deal with § 401(j), upon which the Government had also relied, and it expressly declined to rule on the constitutionality of that section, 356 U.S. at 356 U. S. 62. There were three opinions written in dissent. The principal one, that of THE CHIEF JUSTICE, recognized"that citizenship may not only be voluntarily renounced through exercise of the right of expatriation, but also by other actions in derogation of undivided allegiance to this country,"id. at 356 U. S. 68, but concluded that "[t]he mere act of voting in a foreign election, however, without regard to the circumstances attending Page 372 U. S. 163 the participation, is not sufficient to show a voluntary abandonment of citizenship," id. at 356 U. S. 78.In Trop, § 401(g), forfeiting the citizenship of any American who is guilty of"[d]eserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged . . . ,"was declared unconstitutional. There was no opinion of the Court. THE CHIEF JUSTICE wrote an opinion for four members of the Court, concluding that § 401(g) was invalid for the same reason that he had urged as to § 401(e) in his dissent in Perez, and that it was also invalid as a cruel and unusual punishment imposed in violation of the Eighth Amendment. JUSTICE BRENNAN conceded that it is"paradoxical to justify as constitutional the expatriation of the citizen who has committed no crime by voting in a Mexican political election, yet find unconstitutional a statute which provides for the expatriation of a soldier guilty of the very serious crime of desertion in time of war,"356 U.S. at 356 U. S. 105. Notwithstanding, he concurred because "the requisite rational relation between this statute and the war power does not appear . . . ," id. at 356 U. S. 114. Justice Frankfurter, joined by three other Justices, dissented on the ground that § 401(g) did not impose punishment at all, let alone cruel and unusual punishment, and was within the war powers of Congress.C. Sections 401(j) and 349(a)(10) as PunishmentThe present cases present for decision the constitutionality of a section not passed upon in either Perez or Trop -- § 401(j), added in 1944, and its successor and present counterpart, § 349(a)(10) of the Immigration and Nationality Act of 1952. We have come to the conclusion that there is a basic question in the present cases, Page 372 U. S. 164 the answer to which obviates a choice here between the powers of Congress and the constitutional guarantee of citizenship. That issue is whether the statutes here, which automatically -- without prior court or administrative proceedings -- impose forfeiture of citizenship, are essentially penal in character, and consequently have deprived the appellees of their citizenship without due process of law and without according them the rights guaranteed by the Fifth and Sixth Amendments, including notice, confrontation, compulsory process for obtaining witnesses, trial by jury, and assistance of counsel. This issue was not relevant in Trop, because, in contrast to §§ 401(j) and 349(a)(10), § 401(g) required conviction by court-martial for desertion before forfeiture of citizenship could be inflicted. In Perez, the contention that § 401(e) was penal in character was impliedly rejected by the Court's holding, based on legislative history totally different from that underlying §§ 401(j) and 349(a)(10), that voting in a political election in a foreign state "is regulable by Congress under its power to deal with foreign affairs." 356 U.S. at 356 U. S. 59. Compare Dent v. West Virginia, 129 U. S. 114; Hawker v. New York, 170 U. S. 189; Flemming v. Nestor, 363 U. S. 603. Indeed, in Trop, THE CHIEF JUSTICE observed that"Section 401(j) decrees loss of citizenship without providing any semblance of procedural due process whereby the guilt of the draft evader may be determined before the sanction is imposed . . . ,"356 U.S. at 356 U. S. 94, and Justice Frankfurter, in dissent, alluded to the due process overtones of the requirement in § 401(g) of prior conviction for desertion by court-martial, id. at 356 U. S. 116-117.It is fundamental that the great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due Page 372 U. S. 165 process. [Footnote 17] The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action."The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."Ex parte Milligan, 4 Wall. 2, 71 U. S. 120-121. [Footnote 18] The rights guaranteed by the Fifth and Sixth Amendments are "preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service." Id. at 71 U. S. 123. [Footnote 19]"[I]f society is disturbed by civil commotion -- if the passions of men are aroused and the restraints of law weakened, if not disregarded -- these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution."Id. at 71 U. S. 124.We hold §§ 401(j) and 349(a)(10) invalid because, in them, Congress has plainly employed the sanction of deprivation of nationality as a punishment -- for the offense of leaving or remaining outside the country to evade military Page 372 U. S. 166 service -- without affording the procedural safeguards guaranteed by the Fifth and Sixth Amendments. [Footnote 20] Our forefathers"intended to safeguard the people of this country from punishment without trial by duly constituted courts. . . . And even the courts to which this important function was entrusted, were commanded to stay their hands until and unless certain tested safeguards were observed. An accused in court must be tried by an impartial jury, has a right to be represented by counsel, (and) must be clearly informed of the charge against him. . . ."United States v. Lovett, 328 U. S. 303, 328 U. S. 317. See also Chambers v. Florida, 309 U. S. 227, 309 U. S. 235-238.As the Government concedes, §§ 401(j) and 349(a)(10) automatically strip an American of his citizenship, with concomitant deprivation "of all that makes life worth living," Ng Fung Ho v. White, 259 U. S. 276, 259 U. S. 284-285, whenever a citizen departs from or remains outside the jurisdiction of this country for the purpose of evading his military obligations. Conviction for draft evasion, as Page 372 U. S. 167 Cort's case illustrates, is not prerequisite to the operation of this sanction. [Footnote 21] Independently of prosecution, forfeiture of citizenship attaches when the statutory set of facts develops. It is argued that the availability after the fact of administrative and judicial proceedings, including the machinery the Court approved last Term in Rusk v. Cort, 369 U. S. 367, to contest the validity of the sanction meets the measure of due process. But the legislative history and judicial expression with respect to every congressional enactment relating to the provisions in question dating back to 1865 establish that forfeiture of citizenship is a penalty for the act of leaving or staying outside the country to avoid the draft. This being so, the Fifth and Sixth Amendments mandate that this punishment cannot be imposed without a prior criminal trial and all its incidents, including indictment, notice, confrontation, jury trial, assistance of counsel, and compulsory process for obtaining witnesses. If the sanction these sections impose is punishment, and it plainly is, the procedural safeguards required as incidents of a criminal prosecution are lacking. We need go no further. Page 372 U. S. 168The punitive nature of the sanction here is evident under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character, even though in other cases this problem has been extremely difficult and elusive of solution. Whether the sanction involves an affirmative disability or restraint, [Footnote 22] whether it has historically been regarded as a punishment, [Footnote 23] whether it comes into play only on a finding of scienter, [Footnote 24] whether its operation will promote the traditional aims of punishment -- retribution and deterrence, [Footnote 25] whether the behavior to which it applies is already a crime, [Footnote 26] whether an alternative purpose to which it may Page 372 U. S. 169 rationally be connected is assignable for it, [Footnote 27] and whether it appears excessive in relation to the alternative purpose assigned [Footnote 28] are all relevant to the inquiry, and may often point in differing directions. Absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face. Here, although we are convinced that application of these criteria to the face of the statutes supports the conclusion that they are punitive, a detailed examination along such lines is unnecessary, because the objective manifestations of congressional purpose indicate conclusively that the provisions in question can only be interpreted as punitive. [Footnote 29] A study of the history of the predecessor of § 401(j), which "is worth a volume of logic," New York Trust Co. v. Eisner, 256 U. S. 345, 256 U. S. 349, coupled with a reading of Congress' reasons for enacting § 401(j), compels a conclusion that the statute's primary function is to serve as an additional penalty for Page 372 U. S. 170 a special category of draft evader. [Footnote 30] Compare Trop v. Dulles, supra, 356 U.S. at 356 U. S. 107-110 (Brennan, J., concurring).1. The Predecessor Statute and Judicial ConstructionThe subsections here in question have their origin in part of a Civil War "Act to amend the several Acts heretofore passed to provide for the Enrolling and Calling out the National Forces, and for other Purposes." Act of March 3, 1865, 13 Stat. 487. Section 21 of that Act, dealing with deserters and draft evaders, was in terms punitive, providing that, "in addition to the other lawful penalties of the crime of desertion," persons guilty thereof"shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens . . . and all persons who, being duly enrolled, shall depart the jurisdiction of the district in which he is enrolled, or go beyond the limits of the United States, with intent to avoid any draft into the Page 372 U. S. 171 military or naval service, duly ordered, shall be liable to the penalties of this section. [Footnote 31]"The debates in Congress in 1865 confirm that the use of punitive language in § 21 was not accidental. The section as originally proposed inflicted loss of rights of citizenship only on deserters. Senator Morrill of Maine proposed amending the section to cover persons who leave the country to avoid the draft, stating, "I do not see why the same principle should not extend to those who leave the country to avoid the draft." Cong.Globe, 38th Cong., 2d Sess. 642 (1865). This "same principle" was punitive, because Senator Morrill was also worried that, insofar as the section as originally proposed "provides for a penalty" to be imposed on persons who had theretofore deserted, there was question "whether it is not an ex post facto law, whether it is not fixing a penalty for an act already done." Ibid. Senator Johnson of Maryland attempted to allay Senator Morrill's concern by explaining that"the penalties are not imposed upon those who have deserted, if nothing else occurs, but only on those who have deserted and who shall not return within sixty days. The crime for which the punishment is inflicted is made up of the fact of an antecedent desertion, and a failure to return within sixty days. It is clearly within the power of Congress."Ibid. This explanation satisfied the Senate sufficiently so that they accepted the section, with Senator Morrill's amendment, although Senator Hendricks of Indiana made one last speech in an effort to convince his colleagues of the bill's ex post facto nature and, even apart from that, of the excessiveness of the punishment, particularly as applied to draft evaders:"It seems to me to be very clear that this section proposes to punish desertions which have already Page 372 U. S. 172 taken place, with a penalty which the law does not already prescribe. In other words, it is an ex post facto criminal law which I think we cannot pass. . . . One of the penalties known very well to the criminal laws of the country is the denial of the right of suffrage and the right to hold offices of trust or profit.""It seems to me this objection to the section is very clear, but I desire to suggest further that this section punishes desertions that may hereafter take place in the same manner, and it is known to Senators that one desertion recently created is not reporting when notified of the draft. . . . I submit to Senators that it is a horrible thing to deprive a man of his citizenship, of that which is his pride and honor, from the mere fact that he has been unable to report upon the day specified after being notified that he has been drafted. Certainly the punishment for desertion is severe enough. It extends now from the denial of pay up to death; that entire compass is given for the punishment of this offense. Why add this other? It cannot do any good."Id. at 643.In the House, the motion of New York's Representative Townsend to strike the section as a "despotic measure" which would "have the effect to deprive fifty thousand, and I do not know but one hundred thousand, people of their rights and privileges," was met by the argument of Representative Schenck of Ohio, the Chairman of the Military Committee, that "[h]ere is a penalty that is lawful, wise, proper, and that should be added to the other lawful penalties that now exist against deserters." Id. at 1155. After Representative Wilson of Iowa proposed an amendment, later accepted and placed in the enacted version of the bill, extending the draft evasion portion to apply to persons leaving "the district in which they are enrolled" in addition to those leaving the country, Representative J. C. Allen of Illinois raised the ex post facto Page 372 U. S. 173 objection to the section as a whole. Id. at 1155-1156. Representative Schenck answered him much as Senator Johnson had replied in the Senate:"The gentleman from Illinois [Mr. J. C. Allen] misapprehends this section from not having looked carefully, as I think, into its language. He thinks it retroactive. It is not so. It does not provide for punishing those who have deserted in their character of deserters acquired by having gone before the passage of the law, but of those only, who, being deserters, shall not return and report themselves for duty within sixty days. If the gentleman looks at the language of the section, he will find that we have carefully avoided making it retroactive. We give those who have deserted their country and their flag sixty days for repentance and return.""Mr. J. C. ALLEN. Will not the infliction of this penalty on those who have failed to return to the Army be an additional penalty that did not exist at the time they deserted?""Mr. SCHENCK. Yes, sir.""Mr. J. C. ALLEN. Does not that make the law retroactive?""Mr. SCHENCK. They are deserters now. We take them up in their present status and character as deserters, and punish them for continuing in that character. The gentleman refers to lawyers here. I believe he is a good lawyer himself. Does he not know that if a man steals a horse and runs away with it to the next county, it is a continual act of larceny until he delivers up the horse?"Id. at 1156.The significance of these debates is, as these excerpts plainly show that, while there was a difference in both Houses as to whether the statute would be an ex post facto law, there was agreement among all the speakers on both Page 372 U. S. 174 sides of that issue, as well as on both sides of the merits of the bill generally, that deprivation of rights of citizenship for leaving the country to evade the draft was a "penalty" and "punishment" for a "crime" and an "offense" and a violation of a "criminal law."A number of state court judicial decisions rendered shortly after the Civil War lend impressive support to the conclusion that the predecessor of §§ 401(j) and 349(a)(10), § 21 of the 1865 statute, was a criminal statute imposing an additional punishment for desertion and draft evasion. The first and most important of these was Huber v. Reily, 53 Pa. 112 (1866), in which, as in most of the cases which followed, [Footnote 32] the plaintiff had brought an action against the election judge of his home township, alleging that the defendant had refused to receive his ballot on the ground that plaintiff was a deserter and thereby disenfranchised under § 21, and that such refusal was wrongful because § 21 was unconstitutional. The asserted grounds of invalidity were that § 21 was an ex post facto law, that it was an attempt by Congress to regulate suffrage in the States, and therefore outside Congress' sphere of power, and that it proposed to inflict pains and penalties without a trial and conviction, and was therefore prohibited by the Bill of Rights. In an opinion by Justice Strong, later a member of this Court, the Pennsylvania Supreme Court first characterized the statute in a way which compelled discussion of the asserted grounds of unconstitutionality:"The Act of Congress is highly penal. It imposes forfeiture of citizenship and deprivation of the rights of citizenship as penalties for the commission of a crime. Its avowed purpose is to add to the penalties which the law had previously affixed to the offense Page 372 U. S. 175 of desertion from the military or naval service of the United States, and it denominates the additional sanctions provided as penalties."53 Pa. at 114-115.It then answered the ex post facto argument as it had been answered on the floor of Congress, that the offense could as well be in the continued refusal to render service as in the original desertion. The second contention was met with the statement that"The enactment operates upon an individual offender, punishes him for violation of the Federal law by deprivation of his citizenship of the United States, but it leaves each state to determine for itself whether such an individual may be a voter. It does no more than increase the penalties of the law upon the commission of crime."Id. at 116. "The third objection," the court continued, "would be a very grave one if the act does in reality impose pains and penalties before and without a conviction by due process of law." Id. at 116-117. The court then summarized the protections guaranteed by the Fifth and Sixth Amendments, and concluded that it was not consistent with these rights to empower a"judge of elections or a board of election officers constituted under state laws . . . to adjudge the guilt or innocence of an alleged violator of the laws of the United States."Id. at 117. However, the court decided that, since the penalty contemplated by § 21 "is added to what the law had previously enacted to be the penalty of desertion, as imprisonment is sometimes added to punishment by fine," it must have been intended"that it should be incurred in the same way, and imposed by the same tribunal that was authorized to impose the other penalties for the offence."Id. at 119."[T]he forfeiture which it prescribes, like all other penalties for desertion, must be adjudged to the convicted person, after trial by a court-martial, and sentence approved. For the conviction and sentence of such a court there can be no substitute."Id. Page 372 U. S. 176 at 120. (Emphasis in original.) Accordingly, since the plaintiff had not been so convicted, the court held that he was not disenfranchised.Subsequent state court decisions in the post-Civil War period followed Huber v. Reily, both in result and reasoning. State v. Symonds, 57 Me. 148 (1869); Severance v. Healey, 50 N.H. 448 (1870); Gotcheus v. Matheson, 58 Barb. (N.Y.) 152 (1870); McCafferty v. Guyer, 59 Pa. 109 (1868).Ultimately and significantly, in Kurtz v. Moffitt, 115 U. S. 487, a case dealing with the question whether a city police officer had the power to arrest a military deserter, this Court recognized both the nature of the sanction imposed by § 21 and the attendant necessity of procedural safeguards, approvingly citing the above decisions:"The provisions of §§ 1996 and 1998, which reenact the act of March 3, 1865, ch. 79, § 21, 13 Stat. 490, and subject every person deserting the military service of the United States to additional penalties, namely, forfeiture of all rights of citizenship, and disqualification to hold any office of trust or profit, can only take effect upon conviction by a court martial, as was clearly shown by Mr. Justice Strong, when a judge of the Supreme Court of Pennsylvania, in Huber v. Reily, 53 Penn.St. 112, and has been uniformly held by the civil courts as well as by the military authorities. State v. Symonds, 57 Maine, 148; Severance v. Healey, 50 N.H. 448; Goetcheus v. Matthewson, 61 N.Y. 420; Winthrop's Digest of Judge Advocate General's Opinions, 225."115 U.S. at 115 U. S. 501-502.Section 21 remained on the books unchanged, except for being distributed in the Revised Statutes as §§ 1996 and 1998, until 1912, when Congress reenacted it with an amendment making it inapplicable to peacetime violations Page 372 U. S. 177 and giving the President power to mitigate or remit punishment previously imposed on peacetime violators, Act of August 22, 1912, 37 Stat. 356. The legislative history of that amendment is also instructive for our present inquiry. The discussion in both Houses had reference only to the penalties as operative on deserters, no doubt because there was no peacetime draft to evade, but since the 1865 statute dealt without distinction with both desertion and leaving the jurisdiction to evade, there is no reason to suppose the discussion quoted below to be any less applicable to the latter type of misconduct. The House Committee Report, H.R.Rep.No.335, 62d Cong., 2d Sess. (1912), which was quoted in its entirety in the Senate Committee Report, S.Rep.No.910, 62d Cong., 2d Sess. 3-6 (1912), stated that,"In addition to the service penalty imposed by the court-martial, the law, as it now stands, imposes the further and most drastic punishment of loss of rights of citizenship. . . . There are in the United States today thousands of men who are literally men without a country and their numbers will be constantly added to until the drastic civil war measure which adds this heavy penalty to an already severe punishment imposed by military law, is repealed."H.R.Rep.No.335, supra, at 2. In reporting the bill out of the Committee on Naval Affairs, Representative Roberts of Massachusetts, its author, stated that"the bill now under consideration is intended to remove one of the harshest penalties that can be imposed upon a man for an offense, to-wit, the loss of rights to citizenship. . . . [S]uch a drastic penalty was entirely too severe to be imposed upon an American citizen in time of peace."He detailed the penalties meted out by court-martial for desertion, and then referred to the "additional penalty of loss of citizenship," which, he concluded, is "a barbarous punishment." 48 Cong.Rec. 2903 (1912). Senator Bristow of Kansas, a member of his chamber's Committee on Military Affairs, Page 372 U. S. 178 also referred in discussing the bill to the forfeiture of rights of citizenship as a "penalty," and said that there is no reason why a peacetime offender should be "punished so severely." 48 Cong.Rec. 9542 (1912).A somewhat similar amendment had been passed by both Houses of Congress in 1908, but vetoed by the President. [Footnote 33] The House Committee Report on that occasion, H.R.Rep.No.1340, 60th Cong., 1st Sess. (1908), consisted mainly of a letter from the Secretary of the Navy to the Congress, and of his annual report. In both documents he referred to loss of citizenship as a "punishment," and as one of the "penalties" for desertion. Representative Roberts spoke in 1908, as he was to do once more in 1912, of the "enormity of the punishment" and the "horrible punishment," and said, "Conviction itself under Page 372 U. S. 179 the existing law forfeits citizenship. That is the monstrosity of the law." 43 Cong.Rec. 111 (1908). The entire discussion, id. at 110-114, was based on the premise that loss of citizenship is a punishment for desertion, the point at issue as in 1912, being whether it was too severe a punishment for peacetime imposition. At one point, Representative Roberts said, "Loss of citizenship is a punishment," to which Representative Hull of Iowa replied, "Certainly." Id. at 114.Section 504 of the Nationality Act of 1940, 54 Stat. 1172, repealed the portion of the 1865 statute which dealt with flight from the jurisdiction to avoid the draft. However, in connection with the provision governing loss of citizenship for desertion, which was enacted as § 401(g) and declared unconstitutional in Trop v. Dulles, supra, the President's committee of advisers reported that the provisions of the 1865 Act had been "distinctly penal in character," and concluded that "They must, therefore, be construed strictly, and the penalties take effect only upon conviction by a court martial." [Footnote 34] Codification of the Nationality Laws of the United States, 76th Cong., 1st Sess. 68 (Comm.Print 1939). Section 401(g) was therefore worded so that loss of nationality could only occur upon conviction for desertion by court-martial. When, however, § 401(j) was enacted in 1944, no such procedural safeguards were built in. See Trop v. Dulles, supra, 356 U.S. at 356 U. S. 93-94. Thus, whereas, for JUSTICE BRENNAN, concurring in Trop, the conclusion that expatriation under § 401(g) was punishment was "but the beginning of critical inquiry," 356 U.S. at 356 U. S. 110, a similar conclusion with reference to §§ 401(j) and 349(a)(10) is sufficient to sustain the holding that they are unconstitutional. Page 372 U. S. 1802. The Present StatutesThe immediate legislative history of § 401(j) confirms the conclusion, based upon study of the earlier legislative and judicial history, [Footnote 35] that it is punitive in nature. The language of the section was, to begin with, quite obviously patterned on that of its predecessor, an understandable fact, since the draft of the bill was submitted to the Congress by Attorney General Biddle, along with a letter to Chairman Russell of the Senate Immigration Committee in which the Attorney General referred for precedent to the 1912 reenactment of the 1865 statute. This letter, which was the impetus for the enactment of the bill, was quoted in full text in support of it in both the House and Senate Committee Reports, H.R.Rep. No. 1229, 78th Cong., 2d Sess. 2-3 (1944); S.Rep. No. 1075, 78th Cong., 2d Sess. 2 (1944), and is set out in the margin. [Footnote 36] The Page 372 U. S. 181 Senate Report stated that it "fully explains the purpose of the bill." S.Rep. No. 1075, supra, at 1. The letter was couched entirely in terms of an argument that citizens who had left the country in order to escape military service Page 372 U. S. 182 should be dealt with, and that loss of citizenship was a proper way to deal with them. There was no reference to the societal good that would be wrought by the legislation, nor to any improvement in soldier morale or in the conduct of war generally that would be gained by the passage of the statute. The House Committee Report and the sponsors of the bill endorsed it on the same basis. The report referred for support to the fact that the FBI files showed "over 800 draft delinquents" in the El Paso area alone who had crossed to Mexico to evade the draft. H.R.Rep. No. 1229, supra, at 2. The obvious inference to be drawn from the report, the example it contained, and the lack of mention of any broader purpose is that Congress was concerned solely with inflicting effective retribution upon this class of draft evaders and, no doubt, on others similarly situated. Thus, on the floor of the House, Representative Dickstein of New York, the Chairman of the House Committee on Immigration and Naturalization, explained the bill solely as a means of dealing with"draft-dodgers who left this country knowing that there was a possibility that they might be drafted in this war and that they might have to serve in the armed forces. . . ."He implied that the bill was necessary to frustrate their "idea of evading military service and of returning after the war is over, and taking their old places Page 372 U. S. 183 in our society." 90 Cong.Rec. 3261 (1944). Senator Russell, who was manager of the bill as well as Chairman of the Senate Immigration Committee, explained it in similar terms:"Certainly those who, having enjoyed the advantages of living in the United States, were unwilling to serve their country or subject themselves to the Selective Service Act should be penalized in some measure. . . . Any American citizen who is convicted of violating the Selective Service Act loses his citizenship. This bill would merely impose a similar penalty on those who are not subject to the jurisdiction of our courts, the penalty being the same as would result in the case of those who are subject to the jurisdiction of our courts."90 Cong.Rec. 7629 (1944). [Footnote 37]The Senate and House debates, together with Attorney General Biddle's letter, brought to light no alternative purpose to differentiate the new statute from its predecessor. Indeed, as indicated, the Attorney General's letter specifically relied on the predecessor statute as precedent for this enactment, and both the letter and the debates, consistent with the character of the predecessor statute, referred to reasons for the enactment of the bill which were fundamentally retributive in nature. When all of these considerations are weighed, as they must be in the context of the incontestably punitive nature of the predecessor statute, the conclusion that § 401(j) was itself dominantly punitive becomes inescapable. The legislative history of § 349(a)(10) of the Immigration and Nationality Act of 1952, which reenacted § 401(j), adds Page 372 U. S. 184 nothing to disturb that result. [Footnote 38] Our conclusion from the legislative and judicial history is, therefore, that Congress in these sections decreed an additional punishment for the crime of draft avoidance in the special category of cases wherein the evader leaves the country. It cannot do this without providing the safeguards which must attend a criminal prosecution. [Footnote 39]V. CONCLUSIONIt is argued that our holding today will have the unfortunate result of immunizing the draft evader who has left the United States from having to suffer any sanction against his conduct, since he must return to this country before he can be apprehended and tried for his crime. The compelling answer to this is that the Bill of Rights which we guard so jealously and the procedures it guarantees are not to be abrogated merely because a guilty man may escape prosecution or for any other expedient reason. Moreover, the truth is that, even without being expatriated, the evader living abroad is not in a position to assert the vast majority of his component rights as an American citizen. If he wishes to assert those rights in any real sense, he must return to this country, and, by doing that, he will subject himself to prosecution. In fact, Page 372 U. S. 185 while he is outside the country evading prosecution, the United States may, by proper refusal to exercise its largely discretionary power to afford him diplomatic protection, [Footnote 40] decline to invoke its sovereign power on his behalf. Since the substantial benefits of American citizenship only come into play upon return to face prosecution, the draft evader who wishes to exercise his citizenship rights will inevitably come home and pay his debt, which within constitutional limits Congress has the power to define. This is what Mendoza-Martinez did, what Cort says he is willing to do, and what others have done. [Footnote 41] Thus, our holding today does not frustrate the effective handling of the problem of draft evaders who leave the United States. [Footnote 42] Page 372 U. S. 186We conclude, for the reasons stated, that §§ 401(j) and 349(a)(10) are punitive, and, as such, cannot constitutionally stand, lacking as they do the procedural safeguards which the Constitution commands. [Footnote 43] We recognize that draft evasion, particularly in time of war, is a heinous offense, and should and can be properly punished. Dating back to Magna Carta, however, it has been an abiding principle governing the lives of civilized men that "no freeman shall be taken or imprisoned or disseised or outlawed or exiled . . . without the judgment of his peers or by the law of the land. . . ." [Footnote 44] What we hold is only that, in keeping with this cherished tradition, punishment cannot be imposed "without due process of law." Any lesser holding would ignore the constitutional mandate upon which our essential liberties depend. Therefore, the judgments of the District Courts in these cases are affirmed.Affirmed

U.S. Supreme CourtKennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)Kennedy v. Mendoza-MartinezNo. 2Argued October 10-11, 1961Restored to the calendar for reargument April 2, 1962Reargued December 4, 1962Decided February 18, 1963*372 U.S. 144SyllabusBoth appellees are native-born citizens of the United States. Mendoza-Martinez was ordered deported as an alien and Cort was denied a passport to enable him to return to the United States, both on the ground that they had lost their citizenship by remaining outside of the jurisdiction of the United States in time of war or national emergency for the purpose of evading or avoiding training and service in the Nation's armed forces. Both sued for relief in Federal District Courts, which rendered judgments declaring that the relevant statutes, § 401(j) of the Nationality Act of 1940, as amended, and § 349(a)(10) of the Immigration and Nationality Act of 1952, are unconstitutional. Mendoza-Martinez' case was tried by a single-judge District Court, which granted no injunction. Cort's case was tried by a three-judge District Court, which enjoined the Secretary of State from denying him a passport on the ground that he was not a citizen.Held: The judgments are affirmed. Pp. 372 U. S. 146-186.1. Although Mendoza-Martinez amended his complaint so as to add a prayer for injunctive relief before the third trial of his case by a single-judge District Court, it is clear from the trial record that the issues were framed and the case handled so as actually not to contemplate any injunctive relief. In these circumstances, it was not necessary for the case to be heard by a three-judge District Court convened pursuant to 28 U. S. C. § 2282. Pp. 372 U. S. 152-155.2. The trial and conviction of Mendoza-Martinez for violating §11 of the Selective Training and Service Act of 1940 by going to Mexico "on or about November 15, 1942 . . . for the purpose Page 372 U. S. 145 of evading service" did not involve any determination of his citizenship status, and therefore did not estop the Government from denying his citizenship subsequently. Pp. 372 U. S. 155-158.3. Section 401(j) of the Nationality Act of 1940, as amended, and § 349(a)(10) of the Immigration and Nationality Act of 1952, which purport to deprive an American of his citizenship, automatically and without any prior judicial or administrative proceedings, for"departing from or remaining outside of the jurisdiction of the United States in time of war or . . . national emergency for the purpose of evading or avoiding training and service"in the Nation's armed forces, are unconstitutional, because they are essentially penal in character and would inflict severe punishment without due process of law and without the safeguards which must attend a criminal prosecution under the Fifth and Sixth Amendments. Pp. 372 U. S. 159-186.(a) The great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due process. Pp. 372 U. S. 164-165.(b) It is conceded that §§ 401(j) and 349(a)(10) would automatically strip an American of his citizenship, without any administrative or judicial proceedings whatever, whenever he departs from or remains outside the jurisdiction of this country for the purpose of evading his military obligations. Pp. 372 U. S. 166-167.(c) The punitive nature of the sanctions imposed by these sections is evident under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character, and it is clear from a consideration of the legislative and judicial history of these sections and their predecessors that in them Congress employed the sanction of forfeiture of citizenship as a punishment for the offense of leaving or remaining outside the country to evade military service. Pp. 372 U. S. 163-184.(d) Such punishment may not constitutionally be inflicted without a prior criminal trial with all the safeguards guaranteed by the Fifth and Sixth Amendments, including indictment, notice, confrontation, jury trial, assistance of counsel, and compulsory process for obtaining witnesses. Pp. 372 U. S. 167, 372 U. S. 184, 372 U. S. 186.192 F. Supp. 1 and 187 F. Supp. 683, affirmed. Page 372 U. S. 146

1983_82-1988

JUSTICE O'CONNOR delivered the opinion of the Court.Petitioners are two public defenders working in the State of Oregon. Petitioner Bruce Tower, the Douglas County Public Defender, represented respondent Billy Irl Glover at one of Glover's state trials on robbery charges, at which Glover was convicted. Petitioner Gary Babcock, the Oregon State Public Defender, represented Glover in Glover's unsuccessful state court appeal from this and at least one other conviction.In an action brought under 42 U.S.C. § 1983, Glover alleges that petitioners conspired with various state officials, including the trial and appellate court judges and the former Attorney General of Oregon, to secure Glover's conviction. Glover seeks neither reversal of his conviction nor compensatory damages, but asks instead for $5 million in punitive damages to be awarded against each petitioner. App. 5, 9. We conclude that public defenders are not immune from liability in actions brought by a criminal defendant against state public defenders who are alleged to have conspired with state officials to deprive the § 1983 plaintiff of federal constitutional rights.IGlover was arrested on February 1, 1976, in Del Norte County, Cal. Pet. for Cert. in Glover v. Dolan, O.T. 1978, No. 78-5457, p. 3. The State of California extradited Glover to Benton County, Ore., on December 6, 1976. [Footnote 1] Upon arriving in Oregon, Glover immediately filed for habeas corpus relief in Federal District Court, seeking, apparently, a stay of Page 467 U. S. 917 his pending state court trial. A hearing on this petition was held in January, 1977, and immediate relief was denied. [Footnote 2]Before any final disposition of his federal habeas action, Glover was tried and convicted on different robbery charges in at least two Oregon state courts. One trial -- the trial to which this § 1983 action is directly linked -- was held in Douglas County Circuit Court, case No. 76-0386. Glover was represented by petitioner Tower, and was convicted. Petitioner Babcock represented Glover in the appeal from that conviction. The conviction was summarily affirmed by the Oregon Court of Appeals on January 18, 1978. Oregon v. Glover, 32 Ore.App. 177, 573 P.2d 780. A second robbery trial -- the trial in connection with which Glover had filed his federal habeas action -- was held in the Benton County Circuit Court, case No. 31159. Pet. for Cert. in No. 78-5457, supra, at 6, 9. On April 6, 1977, Glover was convicted; five days later, he was sentenced to 10 years in prison. This conviction was affirmed on April 17, 1978. Oregon v. Glover, 33 Ore.App. 553, 577 P.2d 91. Petitioner Babcock represented Glover in this state court appeal as well.Meanwhile, on December 6, 1977, the Federal Magistrate to whom Glover's habeas petition had been referred recommended that it be dismissed. On March 6, 1978, the District Court dismissed the habeas petition on the ground that Glover had failed to exhaust state remedies. Glover v. Dolan, No. 77-276 (Dist.Ct.Ore.). Glover gave notice of appeal to the Court of Appeals for the Ninth Circuit, but the District Court refused to issue a certificate of probable cause. The Court of Appeals dismissed Glover's application for a certificate of probable cause on July 12, 1978, agreeing with the District Court that Glover had failed to exhaust state remedies. Glover v. Dolan, No. 78-8077 (CA9). In a petition for a writ of certiorari filed with this Court, Glover Page 467 U. S. 918 contended that the Ninth Circuit and the District Court had erred in requiring him to exhaust state court remedies before bringing his federal habeas petition. This Court denied the petition for certiorari. 439 U.S. 1075 (1979).While incarcerated in the Oregon State Penitentiary, Glover then initiated new lawsuits, again attacking his conviction simultaneously in both state and federal courts, and these suits, again, proceeded in parallel for almost three years. First, on December 11, 1980, Glover filed a petition for postconviction relief in the Circuit Court of the State of Oregon for Marion County, seeking to have his conviction set aside on the basis of the alleged conspiracy between his lawyers and various state officials. This state court petition was later consolidated with a petition for postconviction relief filed in connection with Glover's Benton County conviction. On the following day, December 12, 1980, Glover filed this § 1983 action against petitioners in Federal District Court. [Footnote 3] His factual allegations were identical to those made in the state court petition -- indeed, Glover simply appended copies of papers filed in state court to his federal court complaint.On April 1, 1981, the Federal District Court granted petitioners' motion to dismiss Glover's § 1983 action, relying on a decision of the Court of Appeals for the Ninth Circuit that had held public defenders absolutely immune from § 1983 liability, Miller v. Barilla, 549 F.2d 648 (1977). App. B to Pet. for Cert.On February 23, 1983, the consolidated state court petitions came to trial before the Marion County Circuit Court. The state court found that there had been no conspiracy to Page 467 U. S. 919 convict Glover, and therefore denied Glover's request for relief. [Footnote 4] Two weeks later, on March 1, 1983, the Court of Appeals for the Ninth Circuit reversed the Federal District Court's decision and remanded for trial in light of this Court's decisions in Ferri v. Ackerman, 444 U. S. 193 (1979), and Polk County v. Dodson, 454 U. S. 312 (1981). 700 F.2d 556. On May 31, 1983, petitioners filed in this Court a petition for writ of certiorari to the Court of Appeals for the Ninth Circuit. On June 29, 1983, Glover filed a notice of appeal in the State Court of Oregon Court of Appeals on the consolidated judgment from the Marion County court. The Oregon Court of Appeals dismissed Glover's appeal for failure to prosecute on August 22, 1983. We issued a writ of certiorari to the Court of Appeals for the Ninth Circuit on October 3, 1983. 464 U.S. 813.IITitle 42 U.S.C. § 1983 provides that "[e]very person" who acts "under color of " state law to deprive another of constitutional rights shall be liable in a suit for damages. Petitioners concede, and the Court of Appeals agreed, that Glover's conspiracy allegations "cast the color of state law over [petitioners'] actions." Brief for Petitioners 14; see 700 F.2d at 558, n. 1. Page 467 U. S. 920In Polk County v. Dodson, supra, we held that appointed counsel in a state criminal prosecution, though paid and ultimately supervised by the State, does not act "under color of " state law in the normal course of conducting the defense. See also Ferri v. Ackerman, supra. In Dennis v. Sparks, 449 U. S. 24, 449 U. S. 27-28 (1980), however, the Court held that an otherwise private person acts "under color of" state law when engaged in a conspiracy with state officials to deprive another of federal rights. Glover alleges that petitioners conspired with state officials, and his complaint, therefore, includes an adequate allegation of conduct "under color of" state law.IIIOn its face § 1983 admits no immunities. But since 1951, this Court has consistently recognized that substantive doctrines of privilege and immunity may limit the relief available in § 1983 litigation. See Imbler v. Pachtman, 424 U. S. 409, 424 U. S. 417-419 (1976); Pulliam v. Allen, 466 U. S. 522 (1984). The Court has recognized absolute § 1983 immunity for legislators acting within their legislative roles, Tenney v. Brandhove, 341 U. S. 367 (1951), for judges acting within their judicial roles, Pierson v. Ray, 386 U. S. 547, 386 U. S. 554-555 (1967), for prosecutors, Imbler v. Pachtman, supra, and for witnesses, Briscoe v. LaHue, 460 U. S. 325 (1983), and has recognized qualified immunity for state executive officers and school officials, see Scheuer v. Rhodes, 416 U. S. 232 (1974); Wood v. Strickland, 420 U. S. 308 (1975).Section 1983 immunities are"predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it."Imbler v. Pachtman, supra, at 424 U. S. 421; Pulliam v. Allen, supra, at 466 U. S. 529. If an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether § 1983's history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions. See Imbler v. Pachtman, Page 467 U. S. 921 supra, at 424 U. S. 424-429; Briscoe v. LaHue, supra, at 460 U. S. 335-337. Using this framework we conclude that public defenders have no immunity from § 1983 liability for intentional misconduct of the type alleged here.No immunity for public defenders, as such, existed at common law in 1871 because there was, of course, no such office or position in existence at that time. The first public defender program in the United States was reportedly established in 1914. Mounts, Public Defender Programs, Professional Responsibility, and Competent Representation, 1982 Wis.L.Rev. 473, 476. Our inquiry, however, cannot stop there. Immunities in this country have regularly been borrowed from the English precedents, and the public defender has a reasonably close "cousin" in the English barrister. Like public defenders, barristers are not free to pick and choose their clients. They are thought to have no formal contractual relationship with their clients, and they are incapable of suing their clients for a fee. See Rondel v. Worsley, [1969] 1 A.C.191; Kaus & Mallen, The Misguiding Hand of Counsel -- Reflections on "Criminal Malpractice," 21 UCLA L.Rev. 1191, 1193-1195, nn. 7-9 (1974). It is therefore noteworthy that English barristers enjoyed in the 19th century, as they still do today, a broad immunity from liability for negligent misconduct. Rondel v. Worsley, supra, a recent decision from the House of Lords, traces this immunity from its origins in 1435 until the present. Nevertheless, it appears that even barristers have never enjoyed immunity from liability for intentional misconduct, id. at 287 (opinion of Lord Pearson), and it is only intentional misconduct that concerns us here.In this country the public defender's only 19th-century counterpart was a privately retained lawyer, and petitioners do not suggest that such a lawyer would have enjoyed immunity from tort liability for intentional misconduct. Cf. Baker v. Humphrey, 101 U. S. 494 (1880); Von Wallhoffen v. Newcombe, 10 Hun. 236 (N.Y.Sup.Ct. 1877); Hoopes Page 467 U. S. 922 v. Burnett, 26 Miss. 428 (1853). This pattern has continued. Petitioners concede that Oregon, the State in which they practice, has given no indication, by statute or appellate decision, that public defenders are immune under state tort law from liability for intentional misconduct. Indeed, few state appellate courts have addressed the question of public defender immunity; [Footnote 5] none to our knowledge has concluded that public defenders should enjoy immunity for intentional misconduct. It is true that at common law defense counsel would have benefited from immunity for defamatory statements made in the course of judicial proceedings, see Imbler v. Pachtman, supra, at 424 U. S. 426, n. 23, and 424 U. S. 439 (WHITE, J., concurring in judgment), but this immunity would not have covered a conspiracy by defense counsel and other state officials to secure the defendant's conviction.Finally, petitioners contend that public defenders have responsibilities similar to those of a judge or prosecutor, and therefore should enjoy similar immunities. The threat of § 1983 actions based on alleged conspiracies among defense counsel and other state officials may deter counsel from engaging in activities that require some degree of cooperation with prosecutors -- negotiating pleas, expediting trials and appeals, and so on. Ultimately, petitioners argue, the State's attempt to meet its constitutional obligation to furnish criminal defendants with effective counsel will be impaired. At the same time, the federal courts may be inundated with frivolous lawsuits.Petitioners' concerns may be well founded, but the remedy petitioners urge is not for us to adopt. We do not have a Page 467 U. S. 923 license to establish immunities from § 1983 actions in the interests of what we judge to be sound public policy. It is for Congress to determine whether § 1983 litigation has become too burdensome to state or federal institutions and, if so, what remedial action is appropriate. We conclude that state public defenders are not immune from liability under § 1983 for intentional misconduct, "under color of" state law, by virtue of alleged conspiratorial action with state officials that deprives their clients of federal rights.IVAs we have already described supra, at 467 U. S. 916-919, Glover has already had more than one day in court. Indeed, those not familiar with the delicate intricacies of § 1983 jurisdiction might characterize Glover's successful initiation and prosecution of entirely parallel and duplicative state and federal actions as a great waste of judicial resources. But it appears that by now, at least, Glover has exhausted or defaulted on state court opportunities to have his conviction set aside on the basis of the alleged conspiracy among his lawyers and state officials. We therefore have no occasion to decide if a Federal District Court should abstain from deciding a § 1983 suit for damages stemming from an unlawful conviction pending the collateral exhaustion of state court attacks on the conviction itself. [Footnote 6] Cf. Younger v. Harris, 401 U. S. 37 (1971) (federal court may not enjoin ongoing criminal proceeding); Preiser v. Rodriguez, 411 U. S. 475 (1973) (§ 1983 action for injunctive relief may not be used to bypass exhaustion requirements of federal habeas corpus action); Juidice v. Vail, 430 U. S. 327, 430 U. S. 339, n. 16 (1977) (this Court has had no occasion to determine whether a § 1983 damages action may engage Younger principles); Patsy v. Florida Board of Page 467 U. S. 924 Regents, 457 U. S. 496, 457 U. S. 518-519 (1982) (WHITE, J., concurring in part) ("[A] defendant in a civil or administrative enforcement proceeding may not enjoin and sidetrack that proceeding by resorting to a § 1983 action in federal court").It is open to the District Court on remand to consider whether Glover is now collaterally estopped in this action by the state court's finding that the conspiracy alleged in Glover's § 1983 complaint never occurred. Allen v. McCurry, 449 U. S. 90 (1980); see n 4, supra. The judgment of the Court of Appeals for the Ninth Circuit is affirmed. The case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtTower v. Glover, 467 U.S. 914 (1984)Tower v. GloverNo. 82-1988Argued February 22, 1984Decided June 25, 1984467 U.S. 914SyllabusPetitioner Tower, the Douglas County, Ore., Public Defender, represented respondent at a state robbery trial that resulted in respondent's conviction, and petitioner Babcock, the Oregon State Public Defender, represented respondent in his unsuccessful appeal from this and at least one other conviction. Subsequently, respondent filed in state court a petition for postconviction relief, seeking to have his conviction set aside on the ground that petitioners had conspired with various state officials, including the trial and appellate court judges and the former Attorney General, to secure respondent's conviction. On the following day, respondent filed the instant action against petitioners in Federal District Court under 42 U.S.C. § 1983, seeking only to recover punitive damages on the basis of factual allegations that were identical to those made in the state court petition. The District Court granted petitioners' motion to dismiss the § 1983 action, holding that public defenders are absolutely immune from § 1983 liability, but the Court of Appeals reversed and remanded the case for trial. Prior to the Court of Appeals' decision, the state court proceedings came to trial and resulted in a finding that there had been no conspiracy to convict respondent.Held:1. Respondent's complaint adequately alleges conduct "under color of " state law for purposes of § 1983, in view of the conspiracy allegations. Although appointed counsel in a state criminal prosecution does not act "under color of " state law in the normal course of conducting the defense, Polk County v. Dodson, 454 U. S. 312, an otherwise private person acts "under color of" state law when engaged in a conspiracy with state officials to deprive another of federal rights, Dennis v. Sparks, 449 U. S. 24. Pp. 919-920.2. State public defenders are not immune from liability under § 1983 for intentional misconduct by virtue of alleged conspiratorial action with state officials that deprives their clients of federal rights. For purposes of § 1983, immunities are predicated upon a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it. No immunity for public defenders, as such, existed at common law in 1871, when § 1983's predecessor was enacted, because there was no such office in existence at that time. Although a Page 467 U. S. 915 public defender has a reasonably close "cousin" in the English barrister, and although barristers enjoyed in the 19th century and still enjoy a broad immunity from liability for negligent misconduct, nevertheless barristers have never enjoyed immunity from liability for intentional misconduct. In this country, the public defender's only 19th-century counterpart was a privately retained lawyer, and such a lawyer would not have enjoyed immunity from tort liability for intentional misconduct such as that allegedly involved here. Nor is immunity warranted on the asserted ground that public defenders have responsibilities similar to those of a judge or prosecutor, and should enjoy similar immunities in order, ultimately, not to impair the State's attempt to meet its constitutional obligation to furnish criminal defendants with effective counsel, and in order to prevent inundation of the federal courts with frivolous lawsuits. It is for Congress to determine whether § 1983 litigation has become too burdensome to state or federal institutions and, if so, what remedial action is appropriate. Pp. 467 U. S. 920-923.3. It is open to the District Court on remand to consider whether respondent is now collaterally estopped in this action by the state court's finding that the alleged conspiracy never occurred. Pp. 467 U. S. 923-924.700 F.2d 556, affirmed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, and REHNQUIST, JJ., joined, and in all but the first paragraph of Part IV of which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BRENNAN, J., filed an opinion concurring in part and concurring in the judgment, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 467 U.S. 924. Page 467 U. S. 916

1977_76-1701

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.The questions presented in this case are (a) whether the Endangered Species Act of 1973 requires a court to enjoin the operation of a virtually completed federal dam -- which had been authorized prior to 1973 -- when, pursuant to authority vested in him by Congress, the Secretary of the Interior has determined that operation of the dam would eradicate an endangered species; and (b) whether continued congressional appropriations for the dam after 1973 constituted an implied repeal of the Endangered Species Act, at least as to the particular dam.IThe Little Tennessee River originates in the mountains of northern Georgia and flows through the national forest lands of North Carolina into Tennessee, where it converges with the Big Tennessee River near Knoxville. The lower 33 miles of the Little Tennessee takes the river's clear, free-flowing waters through an area of great natural beauty. Among other environmental amenities, this stretch of river is said to contain abundant trout. Considerable historical importance attaches to the areas immediately adjacent to this portion of the Little Tennessee's banks. To the south of the river's edge lies Fort Loudon, established in 1756 as England's southwestern outpost in the French and Indian War. Nearby are also the ancient sites of several native American villages, the archaeological stores of which are, to a large extent, unexplored. [Footnote 1] These include the Cherokee towns of Echota and Tennase, the former Page 437 U. S. 157 being the sacred capital of the Cherokee Nation as early as the 16th century and the latter providing the linguistic basis from which the State of Tennessee derives its name. [Footnote 2]In this area of the Little Tennessee River, the Tennessee Valley Authority, a wholly owned public corporation of the United States, began constructing the Tellico Dam and Reservoir Project in 1967, shortly after Congress appropriated initial funds for its development. [Footnote 3] Tellico is a multipurpose regional development project designed principally to stimulate shoreline development, generate sufficient electric current to heat 20,000 homes, [Footnote 4] and provide flat-water recreation and flood control, as well as improve economic conditions in "an area characterized by underutilization of human resources and outmigration of young people." Hearings on Public Works for Power and Energy Research Appropriation Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, p. 261 (1976). Of particular relevance to this case is one aspect of the project, a dam which TVA determined to place on the Little Tennessee, a short distance from where the river's waters meet with the Big Tennessee. When fully operational, the dam would impound water covering some 16,500 acres -- much of which represents valuable and productive farmland -- thereby converting the river's shallow, fast-flowing waters into a deep reservoir over 30 miles in length.The Tellico Dam has never opened, however, despite the fact that construction has been virtually completed and the Page 437 U. S. 158 dam is essentially ready for operation. Although Congress has appropriated monies for Tellico every year since 1967, progress was delayed, and ultimately stopped, by a tangle of lawsuits and administrative proceedings. After unsuccessfully urging TVA to consider alternatives to damming the Little Tennessee, local citizens and national conservation groups brought suit in the District Court, claiming that the project did not conform to the requirements of the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq. After finding TVA to be in violation of NEPA, the District Court enjoined the dam's completion pending the filing of an appropriate environmental impact statement. Environmental Defense Fund v. TVA, 339 F. Supp. 806 (ED Tenn.), aff'd, 468 F.2d 1164 (CA6 1972). The injunction remained in effect until late 1973, when the District Court concluded that TVA's final environmental impact statement for Tellico was in compliance with the law. Environmental Defense Fund v. TVA, 371 F. Supp. 1004 (ED Tenn.197), aff'd, 492 F.2d 466 (CA6 1974). [Footnote 5]A few months prior to the District Court's decision dissolving the NEPA injunction, a discovery was made in the waters of the Little Tennessee which would profoundly affect the Tellico Project. Exploring the area around Coytee Springs, which is about seven miles from the mouth of the river, a University of Tennessee ichthyologist, Dr. David A. Etnier, found a previously unknown species of perch, the snail darter, or Percina (Imostoma) tanasi. [Footnote 6] This three-inch, tannish-colored fish, Page 437 U. S. 159 whose numbers are estimated to be in the range of 10,000 to 15,000, would soon engage the attention of environmentalists, the TVA, the Department of the Interior, the Congress of the United States, and ultimately the federal courts, as a new and additional basis to halt construction of the dam.Until recently, the finding of a new species of animal life would hardly generate a cause celebre. This is particularly so in the case of darters, of which there are approximately 130 known species, 8 to 10 of these having been identified only in the last five years. [Footnote 7] The moving force behind the snail darter's sudden fame came some four months after its discovery, when the Congress passed the Endangered Species Act of 1973 (Act), 87 Stat. 884, 16 U.S.C. § 1531 et seq. (1976 ed.). This legislation, among other things, authorizes the Secretary of the Interior to declare species of animal life "endangered" [Footnote 8] and to Page 437 U. S. 160 identify the "critical habitat" [Footnote 9] of these creatures. When a species or its habitat is so listed, the following portion of the Act -- relevant here -- becomes effective:"The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter. All other Federal departments and agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with the affected States, to be critical."16 U.S.C. § 1536 (1976 ed.) (emphasis added). Page 437 U. S. 161In January, 1975, the respondents in this case [Footnote 10] and others petitioned the Secretary of the Interior [Footnote 11] to list the snail darter as an endangered species. After receiving comments from various interested parties, including TVA and the State of Tennessee, the Secretary formally listed the snail darter as an endangered species on October 8, 1975. 40 Fed.Reg. 47505-47506; see 50 CFR § 17.11 (i) (1976). In so acting, it was noted that "the snail darter is a living entity which is genetically distinct and reproductively isolated from other fishes." 40 Fed.Reg. 47505. More important for the purposes of this case, the Secretary determined that the snail darter apparently lives only in that portion of the Little Tennessee River which would be completely inundated by the reservoir created as a consequence of the Tellico Dam's completion. Id. at 47506. [Footnote 12] Page 437 U. S. 162 The Secretary went on to explain the significance of the dam to the habitat of the snail darter:"[T]he snail darter occurs only in the swifter portions of shoals over clean gravel substrate in cool, low-turbidity water. Food of the snail darter is almost exclusively snails, which require a clean gravel substrate for their survival. The proposed impoundment of water behind the proposed Tellico Dam would result in total destruction of the snail darter's habitat."Ibid. (emphasis added). Subsequent to this determination, the Secretary declared the area of the Little Tennessee which would be affected by the Tellico Dam to be the "critical habitat" of the snail darter. 41 Fed.Reg. 13926-13928 (1976) (to be codified as 50 CFR § 17.81). Using these determinations as a predicate, and notwithstanding the near completion of the dam, the Secretary declared that, pursuant to § 7 of the Act,"all Federal agencies must take such action as is necessary to insure that actions authorized, funded, or carried out by them do not result in the destruction or modification of this critical habitat area."41 Fed.Reg. 13928 (1976) (to be codified as 50 CFR § 17.81 (b)). This notice, of course, was pointedly directed at TVA, and clearly aimed at halting completion or operation of the dam. During the pendency of these administrative actions, other developments of relevance to the snail darter issue were transpiring. Communication was occurring between the Department of the Interior's Fish and Wildlife Service and TVA with a view toward settling the issue informally. These negotiations were to no avail, however, since TVA consistently took the position that the only available alternative was to attempt relocating the snail darter population to another suitable location. To this end, TVA conducted a search of alternative sites which might sustain the fish, culminating in the experimental transplantation of a number of snail darters to the nearby Hiwassee River. However, the Secretary of the Interior was Page 437 U. S. 163 not satisfied with the results of these efforts, finding that TVA had presented "little evidence that they have carefully studied the Hiwassee to determine whether or not" there were "biological and other factors in this river that [would] negate a successful transplant." [Footnote 13] 40 Fed.Reg. 47506 (1975).Meanwhile, Congress had also become involved in the fate of the snail darter. Appearing before a Subcommittee of the House Committee on Appropriations in April, 1975 -- some seven months before the snail darter was listed as endangered -- TVA representatives described the discovery of the fish and the relevance of the Endangered Species Act to the Tellico Project. Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1976, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 1st Sess., pt. 7, pp. 466-467 (1975); Hearings on H.R. 8122, Public Works for Water and Power Development and Energy Research Appropriations for Fiscal Year 1976, before a Subcommittee of the Senate Committee on Appropriations, 94th Cong., 1st Sess., pt. 4, pp. 3775-3777 (1975). At that time, TVA presented a position which it would advance in successive forums thereafter, namely, that the Act did not prohibit the completion of a project authorized, funded, and substantially constructed before the Act was passed. TVA also described its efforts to transplant the snail darter, but contended that the dam should be finished regardless of the Page 437 U. S. 164 experiment's success. Thereafter, the House Committee on Appropriations, in its June 20, 1975, Report, stated the following in the course of recommending that an additional $29 million be appropriated for Tellico:"The Committee directs that the project, for which an environmental impact statement has been completed and provided the Committee, should be completed as promptly as possible. . . ."H.R.Rep. No. 9319, p. 76 (1975). (Emphasis added.) Congress then approved the TVA general budget, which contained funds for continued construction of the Tellico Project. [Footnote 14] In December, 1975, one month after the snail darter was declared an endangered species, the President signed the bill into law. Public Works for Water and Power Development and Energy Research Appropriation Act, 1976, 89 Stat. 1035, 1047.In February, 1976, pursuant to § 11(g) of the Endangered Species Act, 87 Stat. 00, 16 U.S.C. § 1540(g) (1976 ed.), [Footnote 15] respondents filed the case now under review, seeking to enjoin completion of the dam and impoundment of the reservoir on the ground that those actions would violate the Act by directly causing the extinction of the species Percina (Imostoma) tanas. The District Court denied respondents' request for a preliminary injunction, and set the matter for trial. Shortly thereafter, the House and Senate held appropriations hearings which would include discussions of the Tellico budget. Page 437 U. S. 165At these hearings, TVA Chairman Wagner reiterated the agency's position that the Act did not apply to a project which was over 50% finished by the time the Act became effective, and some 70% to 80% complete when the snail darter was officially listed as endangered. It also notified the Committees of the recently filed law suit's status, and reported that TVA's efforts to transplant the snail darter had "been very encouraging." Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, pp. 261-262 (1976); Hearings on Public Works for Water and Power Development and Energy Research Appropriations for Fiscal Year 1977, before a Subcommittee of the Senate Committee on Appropriations, 94th Cong., 2d Sess., pt. 4, pp. 3096-3099 (1976).Trial was held in the District Court on April 29 and 30, 1976, and on May 25, 1976, the court entered its memorandum opinion and order denying respondents their requested relief and dismissing the complaint. The District Court found that closure of the dam and the consequent impoundment of the reservoir would "result in the adverse modification, if not complete destruction, of the snail darter's critical habitat," [Footnote 16] Page 437 U. S. 166 making it "highly probable" that "the continued existence of the snail darter" would be "jeopardize[d]." 419 F. Supp. 753, 757 (ED Tenn.). Despite these findings, the District Court declined to embrace the plaintiffs' position on the merits: that, once a federal project was shown to jeopardize an endangered species, a court of equity is compelled to issue an injunction restraining violation of the Endangered Species Act.In reaching this result, the District Court stressed that the entire project was then about 80% complete, and, based on available evidence, "there [were] no alternatives to impoundment of the reservoir, short of scrapping the entire project." Id. at 758. The District Court also found that, if the Tellico Project was permanently enjoined, "some $53 million would be lost in nonrecoverable obligations," id. at 759, meaning that a large portion of the $78 million already expended would be wasted. The court also noted that the Endangered Species Act of 1973 was passed some seven years after construction on the dam commenced, and that Congress had continued appropriations for Tellico with full awareness of the snail darter problem. Assessing these various factors, the District Court concluded:"At some point in time, a federal project becomes so near completion and so incapable of modification that a court of equity should not apply a statute enacted long after inception of the project to produce an unreasonable result. . . . Where there has been an irreversible and irretrievable commitment of resources by Congress to a project over a span of almost a decade, the Court should proceed with a great deal of circumspection."Id. at 760. To accept the plaintiffs' position, the District Court argued, would inexorably lead to what it characterized as the absurd result of requiring"a court to halt impoundment of water Page 437 U. S. 167 behind a fully completed dam if an endangered species were discovered in the river on the day before such impoundment was scheduled to take place. We cannot conceive that Congress intended such a result."Id. at 763.Less than a month after the District Court decision, the Senate and House Appropriations Committees recommended the full budget request of $9 million for continued work on Tellico. See S.Rep. No. 9960, p. 96 (1976); H.R.Rep. No. 94-1223, p. 83 (1976). In its Report accompanying the appropriations bill, the Senate Committee stated:"During subcommittee hearings, TVA was questioned about the relationship between the Tellico project's completion and the November, 1975, listing of the snail darter (a small 3-inch fish which was discovered in 1973) as an endangered species under the Endangered Species Act. TVA informed the Committee that it was continuing its efforts to preserve the darter, while working towards the scheduled 1977 completion date. TVA repeated its view that the Endangered Species Act did not prevent the completion of the Tellico project, which has been under construction for nearly a decade. The subcommittee brought this matter, as well as the recent U.S. District Court's decision upholding TVA's decision to complete the project, to the attention of the full Committee. The Committee does not view the Endangered Species Act as prohibiting the completion of the Tellico project at its advanced stage, and directs that this project be completed as promptly as possible in the public interest."S.Rep. No. 94-960, supra at 96. (Emphasis added.)On June 29, 1976, both Houses of Congress passed TVA's general budget, which included funds for Tellico; the President signed the bill on July 12, 1976. Public Works for Water and Power Development and Energy Research Appropriation Act, 1977, 90 Stat. 889, 899. Page 437 U. S. 168Thereafter, in the Court of Appeals, respondents argued that the District Court had abused its discretion by not issuing an injunction in the face of "a blatant statutory violation." 549 F.2d 1064, 1069 (CA6 1977). The Court of Appeals agreed, and on January 31, 1977, it reversed, remanding"with instructions that a permanent injunction issue halting all activities incident to the Tellico Project which may destroy or modify the critical habitat of the snail darter."Id. at 1075. The Court of Appeals directed that the injunction"remain in effect until Congress, by appropriate legislation, exempts Tellico from compliance with the Act or the snail darter has been deleted from the list of endangered species or its critical habitat materially redefined."Ibid.The Court of Appeals accepted the District Court's finding that closure of the dam would result in the known population of snail darters being "significantly reduced, if not completely extirpated." Id. at 1069. TVA, in fact, had conceded as much in the Court of Appeals, but argued that "closure of the Tellico Dam, as the last stage of a ten-year project, falls outside the legitimate purview of the Act if it is rationally construed." Id. at 1070. Disagreeing, the Court of Appeals held that the record revealed a prima facie violation of § 7 of the Act, namely that TVA had failed to take "such action . . . necessary to insure" that its "actions" did not jeopardize the snail darter or its critical habitat.The reviewing court thus rejected TVA's contention that the word "actions" in § 7 of the Act was not intended by Congress to encompass the terminal phases of ongoing projects. Not only could the court find no "positive reinforcement" for TVA's argument in the Act's legislative history, but also such an interpretation was seen as being "inimical to . . . its objectives." 549 F.2d at 1070. By way of illustration, that court pointed out that "the detrimental impact of a project upon an endangered species may not always be clearly perceived before construction is well underway." Id. at 1071. Given such a Page 437 U. S. 169 likelihood, the Court of Appeals was of the opinion that TVA's position would require the District Court, sitting as a chancellor, to balance the worth of an endangered species against the value of an ongoing public works measure, a result which the appellate court was not willing to accept. Emphasizing the limits on judicial power in this setting, the court stated:"Current project status cannot be translated into a workable standard of judicial review. Whether a dam is 50% or 90% completed is irrelevant in calculating the social and scientific costs attributable to the disappearance of a unique form of life. Courts are ill-equipped to calculate how many dollars must be invested before the value of a dam exceeds that of the endangered species. Our responsibility under § 1540(g)(1)(A) is merely to preserve the status quo where endangered species are threatened, thereby guaranteeing the legislative or executive branches sufficient opportunity to grapple with the alternatives."Ibid.As far as the Court of Appeals was concerned, it made no difference that Congress had repeatedly approved appropriations for Tellico, referring to such legislative approval as an "advisory opinio[n]" concerning the proper application of an existing statute. In that court's view, the only relevant legislation was the Act itself, "[t]he meaning and spirit" of which was "clear on its face." Id. at 1072.Turning to the question of an appropriate remedy, the Court of Appeals ruled that the District Court had erred by not issuing an injunction. While recognizing the irretrievable loss of millions of dollars of public funds which would accompany injunctive relief, the court nonetheless decided that the Act explicitly commanded precisely that result:"It is conceivable that the welfare of an endangered species may weigh more heavily upon the public conscience, as expressed by the final will of Congress, than the writeoff of those millions of dollars already expended Page 437 U. S. 170 for Tellico in excess of its present salvageable value."Id. at 1074.Following the issuance of the permanent injunction, members of TVA's Board of Directors appeared before Subcommittees of the House and Senate Appropriations Committees to testify in support of continued appropriations for Tellico. The Subcommittees were apprised of all aspects of Tellico's status, including the Court of Appeals' decision. TVA reported that the dam stood "ready for the gates to be closed and the reservoir filled," Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1978, before a Subcommittee of the House Committee on Appropriations, 95th Cong., 1st Sess., pt. 4, p. 234 (1977), and requested funds for completion of certain ancillary parts of the project, such as public use areas, roads, and bridges. As to the snail darter itself, TVA commented optimistically on its transplantation efforts, expressing the opinion that the relocated fish were "doing well and ha[d] reproduced." Id. at 235, 261-262.Both Appropriations Committees subsequently recommended the full amount requested for completion of the Tellico Project. In its June 2, 1977, Report, the House Appropriations Committee stated:"It is the Committee's view that the Endangered Species Act was not intended to halt projects such as these in their advanced stage of completion, and [the Committee] strongly recommends that these projects not be stopped because of misuse of the Act."H.R.Rep. No. 95-379, p. 104. (Emphasis added.) As a solution to the problem, the House Committee advised that TVA should cooperate with the Department of the Interior "to relocate the endangered species to another suitable habitat so as to permit the project to proceed as rapidly as possible." Id. at 11. Toward this end, the Committee recommended Page 437 U. S. 171 a special appropriation of $2 million to facilitate relocation of the snail darter and other endangered species which threatened to delay or stop TVA projects. Much the same occurred on the Senate side, with its Appropriations Committee recommending both the amount requested to complete Tellico and the special appropriation for transplantation of endangered species. Reporting to the Senate on these measures, the Appropriations Committee took a particularly strong stand on the snail darter issue:"This committee has not viewed the Endangered Species Act as preventing the completion and use of these projects which were well under way at the time the affected species were listed as endangered. If the act has such an effect, which is contrary to the Committee's understanding of the intent of Congress in enacting the Endangered Species Act, funds should be appropriated to allow these projects to be completed and their benefits realized in the public interest, the Endangered Species Act notwithstanding."S.Rep. No. 95-301, p. 99 (1977). (Emphasis added.)TVA's budget, including funds for completion of Tellico and relocation of the snail darter, passed both Houses of Congress and was signed into law on August 7, 1977. Public Works for Water and Power Development and Energy Research Appropriation Act, 1978, 91 Stat. 797.We granted certiorari, 434 U.S. 954 (1977), to review the judgment of the Court of Appeals.IIWe begin with the premise that operation of the Tellico Dam will either eradicate the known population of snail darters or destroy their critical habitat. Petitioner does not now seriously dispute this fact. [Footnote 17] In any event, under § 4(a)(1) Page 437 U. S. 172 of the Act, 87 Stat. 886, 16 U.S.C. § 1533(a)(1) (1976 ed.), the Secretary of the Interior is vested with exclusive authority to determine whether a species such as the snail darter is "endangered" or "threatened," and to ascertain the factors which have led to such a precarious existence. By § 4(d) Congress has authorized -- indeed commanded -- the Secretary to "issue such regulations as he deems necessary and advisable to provide for the conservation of such species." 16 U.S.C. § 1533(d) (1976 ed.). As we have seen, the Secretary promulgated regulations which declared the snail darter an endangered species whose critical habitat would be destroyed by creation of the Tellico Reservoir. Doubtless petitioner would prefer not to have these regulations on the books, but there is no suggestion that the Secretary exceeded his authority or abused his discretion in issuing the regulations. Indeed, no judicial review of the Secretary's determinations has ever been sought, and hence the validity of his actions are not open to review in this Court.Starting from the above premise, two questions are presented: (a) would TVA be in violation of the Act if it completed and operated the Tellico Dam as planned? (b) if TVA's actions would offend the Act, is an injunction the appropriate remedy for the violation? For the reasons stated hereinafter, we hold that both questions must be answered in the affirmative.(A)It may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million. The paradox is not minimized by the fact that Congress continued to appropriate large sums of public money for the project, even after congressional Appropriations Committees were apprised of its apparent impact upon the survival of the snail darter. We conclude, Page 437 U. S. 173 however, that the explicit provisions of the Endangered Species Act require precisely that result.One would be hard-pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or modification of habitat of such species. . . ." 16 U.S.C. § 1536 (1976 ed.). (Emphasis added.) This language admits of no exception. Nonetheless, petitioner urges, as do the dissenters, that the Act cannot reasonably be interpreted as applying to a federal project which was well under way when Congress passed the Endangered Species Act of 1973. To sustain that position, however, we would be forced to ignore the ordinary meaning of plain language. It has not been shown, for example, how TVA can close the gates of the Tellico Dam without "carrying out" an action that has been "authorized" and "funded" by a federal agency. Nor can we understand how such action will "insure" that the snail darter's habitat is not disrupted. [Footnote 18] Accepting the Secretary's determinations, as Page 437 U. S. 174 we must, it is clear that TVA's proposed operation of the dam will have precisely the opposite effect, namely the eradication of an endangered species.Concededly, this view of the Act will produce results requiring the sacrifice of the anticipated benefits of the project and of many millions of dollars in public funds. [Footnote 19] But examination of the language, history, and structure of the legislation under review here indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.When Congress passed the Act in 1973, it was not legislating on a clean slate. The first major congressional concern for the preservation of the endangered species had come with passage of the Endangered Species Act of 1966, 80 Stat. 926, repealed, 87 Stat. 903. [Footnote 20] In that legislation, Congress gave the Page 437 U. S. 175 Secretary power to identify "the names of the species of native fish and wildlife found to be threatened with extinction," § 1(c), 80 Stat. 926, as well as authorization to purchase land for the conservation, protection, restoration, and propagation of "selected species" of "native fish and wildlife" threatened with extinction. §§ 2(a)-(c), 80 Stat. 926-927. Declaring the preservation of endangered species a national policy, the 1966 Act directed all federal agencies both to protect these species and, "insofar as is practicable and consistent with the[ir] primary purposes," § 1(b), 80 Stat. 926, "preserve the habitats of such threatened species on lands under their jurisdiction." Ibid. (Emphasis added.) The 1966 statute was not a sweeping prohibition on the taking of endangered species, however, except on federal lands, § 4(c), 80 Stat. 928, and even in those federal areas the Secretary was authorized to allow the hunting and fishing of endangered species. § 4(d)(1), 80 Stat. 928.In 1969, Congress enacted the Endangered Species Conservation Act, 83 Stat. 275, repealed, 87 Stat. 903, which continued the provisions of the 1966 Act while at the same time broadening federal involvement in the preservation of endangered species. Under the 1969 legislation, the Secretary was empowered to list species "threatened with worldwide extinction," § 3(a), 83 Stat. 275; in addition, the importation of any species so recognized into the United States was prohibited. § 2, 83 Stat. 275. An indirect approach to the taking of Page 437 U. S. 176 endangered species was also adopted in the Conservation Act by way of a ban on the transportation and sale of wildlife taken in violation of any federal, state, or foreign law. §§ 7(a)-(b), 83 Stat. 279. [Footnote 21]Despite the fact that the 1966 and 1969 legislation represented "the most comprehensive of its type to be enacted by any nation" [Footnote 22] up to that time, Congress was soon persuaded that a more expansive approach was needed if the newly declared national policy of preserving endangered species was to be realized. By 1973, when Congress held hearings on what would later become the Endangered Species Act of 1973, it was informed that species were still being lost at the rate of about one per year, 1973 House Hearings 306 (statement of Stephen R. Seater, for Defenders of Wildlife), and "the pace of disappearance of species" appeared to be "accelerating." H R. Rep. No. 93-412, p. 4 (1973). Moreover, Congress was also told that the primary cause of this trend was something other than the normal process of natural selection:"[M]an and his technology has [sic] continued at an ever-increasing rate to disrupt the natural ecosystem. This has resulted in a dramatic rise in the number and severity of the threats faced by the world's wildlife. The truth in this is apparent when one realizes that half of the recorded extinctions of mammals over the past 2,000 years have occurred in the most recent 50-year period."1973 House Hearings 202 (statement of Assistant Secretary of the Interior). Page 437 U. S. 177 That Congress did not view these developments lightly was stressed by one commentator:"The dominant theme pervading all Congressional discussion of the proposed [Endangered Species Act of 973] was the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide wildlife resources. Much of the testimony at the hearings and much debate was devoted to the biological problem of extinction. Senators and Congressmen uniformly deplored the irreplaceable loss to aesthetics, science, ecology, and the national heritage should more species disappear."Coggins, Conserving Wildlife Resources: An Overview of the Endangered Species Act of 1973, 51 N.D.L.Rev. 315, 321 (1975). (Emphasis added.)The legislative proceedings in 1973 are, in fact, replete with expressions of concern over the risk that might lie in the loss of any endangered species. [Footnote 23] Typifying these sentiments is the Report of the House Committee on Merchant Marine and Page 437 U. S. 178 Fisheries on H.R. 37, a bill which contained the essential features of the subsequently enacted Act of 1973; in explaining the need for the legislation, the Report stated:"As we homogenize the habitats in which these plants and animals evolved, and as we increase the pressure for products that they are in a position to supply (usually unwillingly). we threaten their -- and our own -- genetic heritage.""The value of this ethnic heritage is, quite literally, incalculable.""* * * *" "From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask.""To take a homely, but apt, example: one of the critical chemicals in the regulation of ovulations in humans was found in a common plant. Once discovered and analyzed, humans could duplicate it synthetically, but had it never existed -- or had it been driven out of existence before we knew its potentialities -- we would never have tried to synthesize it in the first place.""Who knows, or can say, what potential cures for cancer or other scourges, present or future, may lie locked up in the structures of plants which may yet be undiscovered, much less analyzed? . . . Sheer self-interest impels us to be cautious.""The institutionalization of that caution lies at the heart of H.R. 37. . . ."H.R.Rep. No. 9,312, pp. 4-5 (1973). (Emphasis added.) As the examples cited here demonstrate, Congress was concerned about the unknown uses that endangered species might Page 437 U. S. 179 have and about the unforeseeable place such creatures may have in the chain of life on this planet.In shaping legislation to deal with the problem thus presented, Congress started from the finding that "[t]he two major causes of extinction are hunting and destruction of natural habitat." S.Rep. No. 93-307, p. 2 (1973). Of these twin threats, Congress was informed that the greatest was destruction of natural habitats; see 1973 House Hearings 236 (statement of Associate Deputy Chief for National Forest System, Dept. of Agriculture); id. at 241 (statement of Director of Mich. Dept. of Natural Resources); id. at 306 (statement of Stephen R. Seater, Defenders of Wildlife); Lachenmeier, The Endangered Species Act of 1973: Preservation or Pandemonium?, 5 Environ.Law 29, 31 (1974). Witnesses recommended, among other things, that Congress require all land-managing agencies "to avoid damaging critical habitat for endangered species and to take positive steps to improve such habitat." 1973 House Hearings 241 (statement of Director of Mich. Dept. of Natural Resources). Virtually every bill introduced in Congress during the 1973 session responded to this concern by incorporating language similar, if not identical, to that found in the present § 7 of the Act. [Footnote 24] These provisions were designed, in the words of an administration witness, "for the first time [to] prohibit [a] federal agency from taking action which does jeopardize the status of endangered species," Hearings on S. 1592 and S.1983 before the Subcommittee on Environment of the Senate Committee on Commerce, 93d Cong., 1st Sess., 68 (1973) (statement of Page 437 U. S. 180 Deputy Assistant Secretary of the Interior) (emphasis added); furthermore, the proposed bills would "direc[t] all . . . Federal agencies to utilize their authorities for carrying out programs for the protection of endangered animals." 1973 House Hearings 205 (statement of Assistant Secretary of the Interior). (Emphasis added.)As it was finally passed, the Endangered Species Act of 1973 represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation. Its stated purposes were "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and "to provide a program for the conservation of such . . . species. . . ." 16 U.S.C. § 1531(b) (176 ed.). In furtherance of these goals, Congress expressly stated in § 2(c) that "all Federal departments and agencies shall seek to conserve endangered species and threatened species. . . ." 16 U.S.C. § 1531(c) (1976 ed.). (Emphasis added.) Lest there be any ambiguity as to the meaning of this statutory directive, the Act specifically defined "conserve" as meaning"to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary."§ 1532(2). (Emphasis added.) Aside from § 7, other provisions indicated the seriousness with which Congress viewed this issue: virtually all dealings with endangered species, including taking, possession, transportation, and sale, were prohibited, 16 U.S.C. § 1538 (1976 ed.), except in extremely narrow circumstances, see § 1539(b). The Secretary was also given extensive power to develop regulations and programs for the preservation of endangered and threatened species. [Footnote 25] § 1533(d). Citizen Page 437 U. S. 181 involvement was encouraged by the Act, with provisions allowing interested persons to petition the Secretary to list a species as endangered or threatened, § 133(c)(2), see n 11, supra, and bring civil suits in United States district courts to force compliance with any provision of the Act, §§ 1540(c) and (g).Section 7 of the Act, which, of course, is relied upon by respondents in this case, provides a particularly good gauge of congressional intent. As we have seen, this provision had its genesis in the Endangered Species Act of 1966, but that legislation qualified the obligation of federal agencies by stating that they should seek to preserve endangered species only "insofar as is practicable and consistent with the[ir] primary purposes. . . ." Likewise, every bill introduced in 1973 contained a qualification similar to that found in the earlier statutes. [Footnote 26] Exemplary of these was the administration bill, H.R. 4758, which, in § 2(b), would direct federal agencies to use their authorities to further the ends of the Act "insofar as is practicable and consistent with the[ir] primary purposes. . . ." (Emphasis added.) Explaining the idea behind this language, an administration spokesman told Congress that it "would further signal to all . . . agencies of the Government that this is the first priority, consistent with their primary objectives." 1973 House Hearings 213 (statement of Deputy Assistant Secretary of the Interior). (Emphasis added.) This type of language did not go unnoticed by those advocating strong endangered species legislation. A representative of the Page 437 U. S. 182 Sierra Club, for example, attacked the use of the phrase "consistent with the primary purpose" in proposed H.R. 4758, cautioning that the qualification"could be construed to be a declaration of congressional policy that other agency purposes are necessarily more important than protection of endangered species, and would always prevail if conflict were to occur."1973 House Hearings 335 (statement of the chairman of the Sierra Club's National Wildlife Committee); see id. at 251 (statement for the National Audubon Society).What is very significant in this sequence is that the final version of the 1973 Act carefully omitted all of the reservations described above. In the bill which the Senate initially approved (S. 1983) however, the version of the current § 7 merely required federal agencies to "carry out such programs as are practicable for the protection of species listed. . . ." [Footnote 27] S. 1983, § 7(a). (Emphasis added.) By way of contrast, the bill that originally passed the House, H.R. 37, contained a provision which was essentially a mirror image of the subsequently passed § 7 -- indeed, all phrases which might have qualified an agency's responsibilities had been omitted from the bill. [Footnote 28] In explaining the expected impact of this provision in H.R. 37 on federal agencies, the House Committee's Report states:"This subsection requires the Secretary and the heads of all other Federal departments and agencies to use their authorities in order to carry out programs for the protection Page 437 U. S. 183 of endangered species, and it further requires that those agencies take the necessary action that will not jeopardize the continuing existence of endangered species or result in the destruction of critical habitat of those species."H.R.Rep. No. 93-41, p. 14 (1973). (Emphasis added.)Resolution of this difference in statutory language, as well as other variations between the House and Senate bills, was the task of a Conference Committee. See 119 Cong.Rec. 30174-30175, 31183 (1973). The Conference Report, H.R.Conf.Rep. No. 93-740 (1973), basically adopted the Senate bill, S.1983; but the conferees rejected the Senate version of § 7 and adopted the stringent, mandatory language in H.R.37. While the Conference Report made no specific reference to this choice of provisions, the House manager of the bill, Representative Dingell, provided an interpretation of what the Conference bill would require, making it clear that the mandatory provisions of § 7 were not casually or inadvertently included:"[Section 7] substantially amplifie[s] the obligation of [federal agencies] to take steps within their power to carry out the purposes of this act. A recent article . . . illustrates the problem which might occur absent this new language in the bill. It appears that the whooping cranes of this country, perhaps the best known of our endangered species, are being threatened by Air Force bombing activities along the gulf coast of Texas. Under existing law, the Secretary of Defense has some discretion as to whether or not he will take the necessary action to see that this threat disappears. . . . [O]nce the bill is enacted, [the Secretary of Defense] would be required to take the proper steps. . . .""Another example . . . [has] to do with the continental population of grizzly bears which may or may not be endangered, but which is surely threatened. . . . Once this Page 437 U. S. 184 bill is enacted, the appropriate Secretary, whether of Interior, Agriculture or whatever, will have to take action to see that this situation is not permitted to worsen, and that these bears are not driven to extinction. The purposes of the bill included the conservation of the species and of the ecosystems upon which they depend, and every agency of government is committed to see that those purposes are carried out. . . . [T]he agencies of Government can no longer plead that they can do nothing about it. They can, and they must. The law is clear."119 Cong.Rec. 42913 (1973). (Emphasis added.)It is against this legislative background [Footnote 29] that we must measure TVA's claim that the Act was not intended to stop operation of a project which, like Tellico Dam, was near completion when an endangered species was discovered in its path. While there is no discussion in the legislative history of precisely this problem, the totality of congressional action makes it abundantly clear that the result we reach today is wholly in accord with both the words of the statute and the intent of Congress. The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute. All persons, including federal agencies, are specifically instructed not to "take" endangered species, meaning that no one is "to harass, harm, [Footnote 30] pursue, hunt, shoot, Page 437 U. S. 185 wound, kill, trap, capture, or collect" such life forms. 16 U.S.C. §§ 1532(14), 153(a)(1)(b) (1976 ed.). Agencies in particular are directed by §§ 2(c) and 3(2) of the Act to "use . . . all methods and procedures which are necessary" to preserve endangered species. 16 U.S.C. §§ 1531(c), 1532(2) (1976 ed.) (emphasis added). In addition, the legislative history undergirding § 7 reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species. The pointed omission of the type of qualifying language previously included in endangered species legislation reveals a conscious decision by Congress to give endangered species priority over the "primary missions" of federal agencies.It is not for us to speculate, much less act, on whether Congress would have altered its stance had the specific events of this case been anticipated. In any event, we discern no hint in the deliberations of Congress relating to the 1973 Act that would compel a different result than we reach here. [Footnote 31] Page 437 U. S. 186 Indeed, the repeated expressions of congressional concern over what it saw as the potentially enormous danger presented by the eradication of any endangered species suggest how the balance would have been struck had the issue been presented to Congress in 1973Furthermore, it is clear Congress foresaw that § 7 would, on occasion, require agencies to alter ongoing projects in order to fulfill the goals of the Act. [Footnote 32] Congressman Dingell's discussion of Air Force practice bombing, for instance, obviously pinpoints a particular activity -- intimately related to Page 437 U. S. 187 the national defense -- which a major federal department would be obliged to alter in deference to the strictures of § 7. A similar example is provided by the House Committee Report:"Under the authority of [§ 7], the Director of the Park Service would be required to conform the practices of his agency to the need for protecting the rapidly dwindling stock of grizzly bears within Yellowstone Park. These bears, which may be endangered, and are undeniably threatened, should at least be protected by supplying them with carcasses from excess elk within the park, by curtailing the destruction of habitat by clearcutting National Forests surrounding the Park, and by preventing hunting until their numbers have recovered sufficiently to withstand these pressures."H.R.Rep. No. 93-412, p. 14 (1973). (Emphasis added.)One might dispute the applicability of these examples to the Tellico Dam by saying that, in this case, the burden on the public through the loss of millions of unrecoverable dollars would greatly outweigh the loss of the snail darter. [Footnote 33] But neither the Endangered Species Act nor Art. III of the Constitution provides federal courts with authority to make such fine utilitarian calculations. On the contrary, the plain language of the Act, buttressed by its legislative history, shows clearly that Congress viewed the value of endangered species as "incalculable." Quite obviously, it would be difficult for Page 437 U. S. 188 a court to balance the loss of a sum certain -- even $100 million -- against a congressionally declared "incalculable" value, even assuming we had the power to engage in such a weighing process, which we emphatically do not.In passing the Endangered Species Act of 1973, Congress was also aware of certain instances in which exception to the statute's brad sweep would be necessary. Thus, § 10, 16 U.S.C. § 1539 (1976 ed.), creates a number of limited "hardship exemptions," none of which would even remotely apply to the Tellico Project. In fact, there are no exemptions in the Endangered Species Act for federal agencies, meaning that, under the maxim expressio unius est exclusio alterius, we must presume that these were the only "hardship cases" Congress intended to exempt. Cf. National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U. S. 453, 414 U. S. 458 (1974). [Footnote 34] Page 437 U. S. 189Notwithstanding Congress' expression of intent in 1973, we are urged to find that the continuing appropriations for Tellico Dam constitute an implied repeal of the 1973 Act, at least insofar as it applies to the Tellico Project. In support of this view, TVA points to the statements found in various House and Senate Appropriations Committees' Reports; as described in 437 U. S. supra, those Reports generally reflected the attitude of the Committees either that the Act did not apply to Tellico or that the dam should be completed regardless of the provisions of the Act. Since we are unwilling to assume that these latter Committee statements constituted advice to ignore the provisions of a duly enacted law, we assume that these Committees believed that the Act simply was not applicable in this situation. But even under this interpretation of the Committees' actions, we are unable to conclude that the Act has been in any respect amended or repealed.There is nothing in the appropriations measures, as passed, which states that the Tellico Project was to be completed irrespective of the requirements of the Endangered Species Act. These appropriations, in fact, represented relatively minor components of the lump-sum amounts for the entire TVA budget. [Footnote 35] To find a repeal of the Endangered Species Act under these circumstances would surely do violence to the "cardinal rule . . . that repeals by implication are not favored.'" Morton v. Mancari, 417 U. S. 535, 417 U. S. 549 (1974), quoting Posadas v. National City Bank, 296 U. S. 497, 296 U. S. 503 (1936). In Posadas, this Court held, in no uncertain terms, that "the intention of the legislature to repeal must be clear and manifest." Ibid. See Georgia v. Pennsylvania R. Co., Page 437 U. S. 190 324 U. S. 49, 324 U. S. 456-457 (1945) ("Only a clear repugnancy between the old . . . and the new [law] results in the former giving way . . ."); United States v. Borden Co., 308 U. S. 188, 308 U. S. 198-199 (1939) ("[I]ntention of the legislature to repeal `must be clear and manifest'. . . . `[A] positive repugnancy [between the old and the new laws]'"); Wood v. United States, 16 Pet. 342, 41 U. S. 363 (1842) ("[T]here must be a positive repugnancy. . . ."). In practical terms, this "cardinal rule" means that, "[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable." Mancari, supra, at 417 U. S. 550.The doctrine disfavoring repeals by implication "applies with full vigor when . . . the subsequent legislation is an appropriations measure." Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 380, 382, 463 F.2d 783, 785 (1971) (emphasis added); Environmental Defense Fund v. Froehlke, 473 F.2d 346, 355 (CA8 1972). This is perhaps an understatement, since it would be more accurate to say that the policy applies with even greater force when the claimed repeal rests solely on an Appropriations Act. We recognize that both substantive enactments and appropriations measures are "Acts of Congress," but the latter have the limited and specific purpose of providing funds for authorized programs. When voting on appropriations measures, legislators are entitled to operate under the assumption that the funds will be devoted to purposes which are lawful, and not for any purpose forbidden. Without such an assurance, every appropriations measure would be pregnant with prospects of altering substantive legislation, repealing by implication any prior statute which might prohibit the expenditure. Not only would this lead to the absurd result of requiring Members to review exhaustively the background of every authorization before voting on an appropriation, but it would flout the very rules the Congress carefully adopted to avoid Page 437 U. S. 191 this need. House Rule XXI(2), for instance, specifically provides:"No appropriation shall be reported in any general appropriation bill, or be in order as an amendment thereto, for any expenditure not previously authorized by law, unless in continuation of appropriations for such public works as are already in progress. Nor shall any provision in any such bill or amendment thereto changing existing law be in order."(Emphasis added.) See also Standing Rules of the Senate, Rule 16.4. Thus, to sustain petitioner's position, we would be obliged to assume that Congress meant to repeal pro tanto § 7 of the Act by means of a procedure expressly prohibited under the rules of Congress.Perhaps mindful of the fact that it is "swimming upstream" against a strong current of well established precedent, TVA argues for an exception to the rule against implied repealers in a circumstance where, as here, Appropriations Committees have expressly stated their "understanding" that the earlier legislation would not prohibit the proposed expenditure. We cannot accept such a proposition. Expressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by Congress, particularly not in the circumstances presented by this case. First, the Appropriations Committees had no jurisdiction over the subject of endangered species, much less did they conduct the type of extensive hearings which preceded passage of the earlier Endangered Species Acts, especially the 1973 Act. We venture to suggest that the House Committee on Merchant Marine and Fisheries and the Senate Committee on Commerce would be somewhat surprised to learn that their careful work on the substantive legislation had been undone by the simple -- and brief -- insertion of some inconsistent language in Appropriations Committees' Reports Page 437 U. S. 192Second, .there is no indication that Congress as a whole was aware of TVA's position, although the Appropriations Committees apparently agreed with petitioner's views. Only recently, in SEC v. Sloan, 436 U. S. 103 (1918), we declined to presume general congressional acquiescence in a 34-year-old practice of the Securities and Exchange Commission, despite the fact that the Senate Committee having jurisdiction over the Commission's activities had long expressed approval of the practice. MR. JUSTICE REHNQUIST, speaking for the Court, observed that we should be "extremely hesitant to presume general congressional awareness of the Commission's construction based only upon a few isolated statements in the thousands of pages of legislative documents." Id. at 436 U. S. 121. A fortiori, we should not assume that petitioner's views -- and the Appropriations Committees' acceptance of them -- were any better known, especially when the TVA is not the agency with primary responsibility for administering the Endangered Species Act.Quite apart from the foregoing factors, we would still be unable to find that, in this case, "the earlier and later statutes are irreconcilable," Mancari, 417 U.S. at 417 U. S. 550; here, it is entirely possible "to regard each as effective." Id. at 417 U. S. 551. The starting point in this analysis must be the legislative proceedings leading to the 1977 appropriations, since the earlier funding of the dam occurred prior to the listing of the snail darter as an endangered species. In all successive years, TVA confidently reported to the Appropriations Committees that efforts to transplant the snail darter appeared to be successful; this surely gave those Committees some basis for the impression that there was no direct conflict between the Tellico Project and the Endangered Species Act. Indeed, the special appropriation for 1978 of $2 million for transplantation of endangered species supports the view that the Committees saw such relocation as the means whereby collision between Tellico and the Endangered Species Act could be avoided. It should also Page 437 U. S. 193 be noted that the Reports issued by the Senate and House Appropriations Committees in 1976 came within a month of the District Court's decision in this case, which hardly could have given the Members cause for concern over the possible applicability of the Act. This leaves only the 1978 appropriations, the Reports for which issued after the Court of Appeals' decision now before us. At that point, very little remained to be accomplished on the project; the Committees understandably advised TVA to cooperate with the Department of the Interior "to relocate the endangered species to another suitable habitat so as to permit the project to proceed as rapidly as possible." H.R.Rep. No. 95-379, p. 11 (1977). It is true that the Committees repeated their earlier expressed "view" that the Act did not prevent completion of the Tellico Project. Considering these statements in context, however, it is evident that they "represent only the personal views of these legislators,'" and, "however explicit, [they] cannot serve to change the legislative intent of Congress expressed before the Act's passage." Regional Rail Reorganization Act Cases, 419 U. S. 102, 419 U. S. 132 (1974).(B)Having determined that there is an irreconcilable conflict between operation of the Tellico Dam and the explicit provisions of § 7 of the Endangered Species Act, we must now consider what remedy, if any, is appropriate. It is correct, of course, that a federal judge sitting as a chancellor is not mechanically obligated to grant an injunction for every violation of law. This Court made plain in Hecht Co. v. Bowles, 321 U. S. 321, 321 U. S. 329 (1944), that "[a] grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances." As a general matter it may be said that,"[s]ince all or almost all equitable remedies are discretionary, the balancing of equities and hardships is appropriate in almost any case as a guide to the chancellor's discretion."D. Dobbs, Remedies 52 (1973). Thus, in Hecht Page 437 U. S. 194 Co., the Court refused to grant an injunction when it appeared from the District Court findings that"the issuance of an injunction would have 'no effect by way of insuring better compliance in the future,' and would [have been] 'unjust' to [the] petitioner, and not 'in the public interest.'"321 U.S. at 321 U. S. 326.But these principles take a court only so far. Our system of government is, after all, a tripartite one, with each branch having certain defined functions delegated to it by the Constitution. While "[i]t is emphatically the province and duty of the judicial department to say what the law is," Marbury v. Madison, 1 Cranch 137, 5 U. S. 177 (1803), it is equally -- and emphatically -- the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them when enforcement is sought.Here we are urged to view the Endangered Species Act "reasonably," and hence shape a remedy "that accords with some modicum of common sense and the public weal." Post at 437 U. S. 196. But is that our function? We have no expert knowledge on the subject of endangered species; much less do we have a mandate from the people to strike a balance of equities on the side of the Tellico Dam. Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as "institutionalized caution."Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not Page 437 U. S. 195 sit as a committee of review, nor are we vested with the power of veto. The lines ascribed to Sir Thomas More by Robert Bolt are not without relevance here:"The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal. . . . I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. . . . What would you do? Cut a great road through the law to get after the Devil? . . . And when the last law was down, and the Devil turned round on you -- where would you hide, Roper, the laws all being flat? . . . This country's planted thick with laws from coast to coast -- Man's laws, not God's -- and if you cut them down . . . , d'you really think you could stand upright in the winds that would blow them? . . . Yes, I'd give the Devil benefit of law, for my own safety's sake."R. Bolt, A Man for All Seasons, Act I, p. 147 (Three Plays, Heinemann ed.1967).We agree with the Court of Appeals that, in our constitutional system, the commitment to the separation of powers is too fundamental for us to preempt congressional action by judicially decreeing what accords with "common sense and the public weal." Our Constitution vests such responsibilities in the political branches.Affirmed

U.S. Supreme CourtTennessee Valley Auth. v. Hill, 437 U.S. 153 (1978)Tennessee Valley Authority v. HillNo. 76-1701Argued April 18, 1978Decided June 15, 1978437 U.S. 153SyllabusThe Endangered Species Act of 1973 (Act) authorizes the Secretary of the Interior (Secretary) in § 4 to declare a species of life "endangered." Section 7 specifies that all"Federal departments and agencies shall, . . . with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of [the] Act by carrying out programs for the conservation of endangered species . . . and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary . . . to be critical."Shortly after the Act's passage, the Secretary was petitioned to list a small fish popularly known as the snail darter as an endangered species under the Act. Thereafter, the Secretary made the designation. Having determined that the snail darter apparently lives only in that portion of the Little Tennessee River that would be completely inundated by the impoundment of the reservoir created as a consequence of the completion of the Tellico Dam, he declared that area as the snail darter's "critical habitat." Notwithstanding the near completion of the multimillion dollar dam, the Secretary issued a regulation in which it was declared that, pursuant to § 7,"all Federal agencies must take such action as is necessary to ensure that actions authorized, funded, or carried out by them do not result in the destruction or modification of this critical habitat area."Respondents brought this suit to enjoin completion of the dam and impoundment of the reservoir, claiming that those actions would violate the Act by causing the snail darter's extinction. The District Court, after trial, denied relief and dismissed the complaint. Though finding that the impoundment of the reservoir would probably jeopardize the snail darter's continued existence, the court noted that Congress, though fully aware of the snail darter problem, had continued Tellico's appropriations, and concluded that,"[a]t some point in time, a federal project becomes so near completion and so incapable of modification that a court of equity should not apply a statute enacted long after inception of the project to produce an unreasonable result. . . ."The Court of Appeals reversed. and Page 437 U. S. 154 ordered the, District Court permanently to enjoin completion of the project"until Congress, by appropriate legislation, exempts Tellico from compliance with the Act or the snail darter has been deleted from the list of endangered species or its critical habitat materially redefined."The court held that the record revealed a prima facie violation of § 7 in that the Tennessee Valley Authority had failed to take necessary action to avoid jeopardizing the snail darter's critical habitat by its "actions." The court thus rejected the contention that the word "actions," as used in § 7, was not intended by Congress to encompass the terminal phases of ongoing projects. At various times before, during, and after the foregoing judicial proceedings, TVA represented to congressional Appropriations Committees that the Act did not prohibit completion of the Tellico Project. and described its efforts to transplant the snail darter. The Committees consistently recommended appropriations for the dam, sometimes stating their views that the Act did not prohibit completion of the dam at its advanced stage, and Congress each time approved TVA's general budget, which contained funds for the dam's continued construction.Held:1. The Endangered Species Act prohibits impoundment of the Little Tennessee River by the Tellico Dam. Pp. 437 U. S. 172-193.(a) The language of § 7 is plain, and makes no exception such as that urged by petitioner whereby the Act would not apply to a project like Tellico that was well under way when Congress passed the Act. Pp. 437 U. S. 172-174.(b) It is clear from the Act's legislative history that Congress intended to halt and reverse the trend toward species extinction -- whatever the cost. The pointed omission of the type of qualified language previously included in endangered species legislation reveals a conscious congressional design to give endangered species priority over the "primary missions" of federal agencies. Congress, moreover, foresaw that § 7 would, on occasion, require agencies to alter ongoing projects in order to fulfill the Act's goals. Pp. 437 U. S. 174-187.(c) None of the limited "hardship exemptions" provided in the Act would even remotely apply to the Tellico Project. P. 437 U. S. 188.(d) Though statements in Appropriations Committee Reports reflected the view of the Committees either that the Act did not apply to Tellico or that the dam should be completed regardless of the Act's provisions, nothing in the TVA appropriations measures passed by Congress stated that the Tellico Project was to be completed regardless of the Act's requirements. To find a repeal under these circumstances, as petitioner has urged, would violate the "cardinal rule . . . that repeals by implication are not favored.'" Morton v. Mancari, 417 U. S. 535, 417 U. S. 549. The Page 437 U. S. 155 doctrine disfavoring repeals by implication applies with full vigor when the subsequent legislation is an appropriations measure. When voting on appropriations measures, legislators are entitled to assume that the funds will be devoted to purposes that are lawful, and not for any purpose forbidden. A contrary policy would violate the express rules of both Houses of Congress, which provide that appropriations measures may not change existing substantive law. An appropriations committee's expression does not operate to repeal or modify substantive legislation. Pp. 437 U. S. 189-193.2. The Court of Appeals did not err in ordering that completion of the Tellico Dam, which would have violated the Act, be enjoined. Congress has spoken in the plainest words, making it clear that endangered species are to be accorded the highest priorities. Since that legislative power has been exercised, it is up to the Executive Branch to administer the law, and for the Judiciary to enforce it when, as here, enforcement has been sought. Pp. 437 U. S. 193-194.549 F.2d 1064, affirmed.BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 437 U. S. 195. REHNQUIST, J., filed a dissenting opinion, post, p. 437 U. S. 211. Page 437 U. S. 156

1987_86-1013

JUSTICE O'CONNOR delivered the opinion of the Court.This case requires us to consider whether the First Amendment's Free Exercise Clause prohibits the Government from permitting timber harvesting in, or constructing a road through, a portion of a National Forest that has traditionally Page 485 U. S. 442 been used for religious purposes by members of three American Indian tribes in northwestern California. We conclude that it does not.IAs part of a project to create a paved 75-mile road linking two California towns, Gasquet and Orleans, the United States Forest Service has upgraded 49 miles of previously unpaved roads on federal land. In order to complete this project (the G-O road), the Forest Service must build a 6-mile paved segment through the Chimney Rock section of the Six Rivers National Forest. That section of the forest is situated between two other portions of the road that are already complete.In 1977, the Forest Service issued a draft environmental impact statement that discussed proposals for upgrading an existing unpaved road that runs through the Chimney Rock area. In response to comments on the draft statement, the Forest Service commissioned a study of American Indian cultural and religious sites in the area. The Hoopa Valley Indian Reservation adjoins the Six Rivers National Forest, and the Chimney Rock area has historically been used for religious purposes by Yurok, Karok, and Tolowa Indians. The commissioned study, which was completed in 1979, found that the entire area "is significant as an integral and indispensable part of Indian religious conceptualization and practice." App. 181. Specific sites are used for certain rituals, and"successful use of the [area] is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting."Ibid. (footnote omitted). The study concluded that constructing a road along any of the available routes"would cause serious and irreparable damage to the sacred areas which are an integral and necessary part of the belief systems and lifeway of Northwest California Indian peoples."Id. at 182. Accordingly, the report recommended that the G-O road not be completed. Page 485 U. S. 443In 1982, the Forest Service decided not to adopt this recommendation, and it prepared a final environmental impact statement for construction of the road. The Regional Forester selected a route that avoided archeological sites and was removed as far as possible from the sites used by contemporary Indians for specific spiritual activities. Alternative routes that would have avoided the Chimney Rock area altogether were rejected because they would have required the acquisition of private land, had serious soil stability problems, and would in any event have traversed areas having ritualistic value to American Indians. See id. at 217-218. At about the same time, the Forest Service adopted a management plan allowing for the harvesting of significant amounts of timber in this area of the forest. The management plan provided for one-half mile protective zones around all the religious sites identified in the report that had been commissioned in connection with the G-O road.After exhausting their administrative remedies, respondents -- an Indian organization, individual Indians, nature organizations and individual members of those organizations, and the State of California -- challenged both the roadbuilding and timber harvesting decisions in the United States District Court for the Northern District of California. Respondents claimed that the Forest Service's decisions violated the Free Exercise Clause, the Federal Water Pollution Control Act (FWPCA), 86 Stat. 896, as amended, 33 U.S.C. § 1251 et seq., the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq., several other federal statutes, and governmental trust responsibilities to Indians living on the Hoopa Valley Reservation.After a trial, the District Court issued a permanent injunction prohibiting the Government from constructing the Chimney Rock section of the G-O road or putting the timber harvesting management plan into effect. See Northwest Indian Cemetery Protective Assn. v. Peterson, 565 F. Supp. 586 (1983). The court found that both actions would violate Page 485 U. S. 444 the Free Exercise Clause because they "would seriously damage the salient visual, aural, and environmental qualities of the high country." Id. at 594-595. The court also found that both proposed actions would violate the FWPCA, and that the environmental impact statements for construction of the road were deficient under the NEPA. Finally, the court concluded that both projects would breach the Government's trust responsibilities to protect water and fishing rights reserved to the Hoopa Valley Indians.While an appeal was pending before the United States Court of Appeals for the Ninth Circuit, Congress enacted the California Wilderness Act of 1984, Pub.L. 98-425, 98 Stat. 1619. Under that statute, much of the property covered by the Forest Service's management plan is now designated a wilderness area, which means that commercial activities such as timber harvesting are forbidden. The statute exempts a narrow strip of land, coinciding with the Forest Service's proposed route for the remaining segment of the G-O road, from the wilderness designation. The legislative history indicates that this exemption was adopted "to enable the completion of the Gasquet-Orleans Road project if the responsible authorities so decide." S.Rep. No. 98-582, p. 29 (1984). The existing unpaved section of road, however, lies within the wilderness area, and is therefore now closed to general traffic.A panel of the Ninth Circuit affirmed in part. Northwest Indian Cemetery Protective Assn. v. Peterson, 795 F.2d 688 (1986). The panel unanimously rejected the District Court's conclusion that the Government's proposed actions would breach its trust responsibilities to Indians on the Hoopa Valley Reservation. The panel also vacated the injunction to the extent that it had been rendered moot by the California Wilderness Act, which now prevents timber harvesting in certain areas covered by the District Court's order. The District Court's decision, to the extent that it rested on statutory grounds, was otherwise unanimously affirmed Page 485 U. S. 445By a divided decision, the District Court's constitutional ruling was also affirmed. Relying primarily on the Forest Service's own commissioned study, the majority found that construction of the Chimney Rock section of the G-O road would have significant, though largely indirect, adverse effects on Indian religious practices. The majority concluded that the Government had failed to demonstrate a compelling interest in the completion of the road, and that it could have abandoned the road without thereby creating "a religious preserve for a single group in violation of the establishment clause." Id. at 694. The majority apparently applied the same analysis to logging operations that might be carried out in portions of the Chimney Rock area not covered by the California Wilderness Act. See id. at 692-693 ("Because most of the high country has now been designated by Congress as a wilderness area, the issue of logging becomes less significant, although it does not disappear").The dissenting judge argued that certain of the adverse effects on the Indian respondents' religious practices could be eliminated by less drastic measures than a ban on building the road, and that other actual or suggested adverse effects did not pose a serious threat to the Indians' religious practices. He also concluded that the injunction against timber harvesting needed to be reconsidered in light of the California Wilderness Act:"It is not clear whether the district court would have issued an injunction based upon the development of the remaining small parcels. Accordingly, I would remand to allow the district court to reevaluate its injunction in light of the Act."Id. at 704.IIWe begin by noting that the courts below did not articulate the bases of their decisions with perfect clarity. A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them. See Three Page 485 U. S. 446 Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., 467 U. S. 138, 467 U. S. 157-158 (1984); see also, e.g., Jean v. Nelson, 472 U. S. 846, 472 U. S. 854 (1985); Gulf Oil Co. v. Bernard, 452 U. S. 89, 452 U. S. 99 (1981); Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346-348 (1936) (Brandeis, J., concurring). This principle required the courts below to determine, before addressing the constitutional issue, whether a decision on that question could have entitled respondents to relief beyond that to which they were entitled on their statutory claims. If no additional relief would have been warranted, a constitutional decision would have been unnecessary, and therefore inappropriate.Neither the District Court nor the Court of Appeals explained or expressly articulated the necessity for their constitutional holdings. Were we persuaded that those holdings were unnecessary, we could simply vacate the relevant portions of the judgment below without discussing the merits of the constitutional issue. The structure and wording of the District Court's injunctive order, however, suggest that the statutory holdings would not have supported all the relief granted. The order is divided into four sections. Two of those sections deal with a 31,100-acre tract referred to as the Blue Creek Roadless Area. The injunction prohibits the Forest Service from engaging in timber harvesting or roadbuilding anywhere on the tract "unless and until" compliance with the NEPA and the FWPCA have been demonstrated. 565 F. Supp. at 606-607. The sections of the injunction dealing with the smaller Chimney Rock area (i.e., the area affected by the First Amendment challenge) are worded differently. The Forest Service is permanently enjoined, without any qualifying language, from constructing the proposed portion of the G-O road "and/or any alternative route" through that area; similarly, the injunction forbids timber harvesting or the construction of logging roads in the Chimney Rock area pursuant to the Forest Service's proposed management plan "or any other land management plan." Page 485 U. S. 447 Id. at 606 (emphasis added). These differences in wording suggest, without absolutely implying, that an injunction covering the Chimney Rock area would in some way have been conditional, or narrower in scope, if the District Court had not decided the First Amendment issue as it did. Similarly, the silence of the Court of Appeals as to the necessity of reaching the First Amendment issue may have reflected its understanding that the District Court's injunction necessarily rested in part on constitutional grounds.Because it appears reasonably likely that the First Amendment issue was necessary to the decisions below, we believe that it would be inadvisable to vacate and remand without addressing that issue on the merits. This conclusion is strengthened by considerations of judicial economy. The Government, which petitioned for certiorari on the constitutional issue alone, has informed us that it believes it can cure the statutory defects identified below, intends to do so, and will not challenge the adverse statutory rulings. Tr. of Oral Arg. 9-10. In this circumstance, it is difficult to see what principle would be vindicated by sending this case on what would almost certainly be a brief round trip to the courts below.IIIAThe Free Exercise Clause of the First Amendment provides that "Congress shall make no law . . . prohibiting the free exercise [of religion]." It is undisputed that the Indian respondents' beliefs are sincere and that the Government's proposed actions will have severe adverse effects on the practice of their religion. Those respondents contend that the burden on their religious practices is heavy enough to violate the Free Exercise Clause unless the Government can demonstrate a compelling need to complete the G-O road or to engage in timber harvesting in the Chimney Rock area. We disagree. Page 485 U. S. 448In Bowen v. Roy, 476 U. S. 693 (1986), we considered a challenge to a federal statute that required the States to use Social Security numbers in administering certain welfare programs. Two applicants for benefits under these programs contended that their religious beliefs prevented them from acceding to the use of a Social Security number for their 2-year-old daughter because the use of a numerical identifier would "rob the spirit' of [their] daughter and prevent her from attaining greater spiritual power." Id. at 476 U. S. 696. Similarly, in this case, it is said that disruption of the natural environment caused by the G-O road will diminish the sacredness of the area in question and create distractions that will interfere with"training and ongoing religious experience of individuals using [sites within] the area for personal medicine and growth . . . and as integrated parts of a system of religious belief and practice which correlates ascending degrees of personal power with a geographic hierarchy of power."App. 181. Cf. id. at 178 ("Scarred hills and mountains, and disturbed rocks destroy the purity of the sacred areas, and [Indian] consultants repeatedly stressed the need of a training doctor to be undistracted by such disturbance"). The Court rejected this kind of challenge in Roy:"The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens. Just as the Government may not insist that [the Roys] engage in any set form of religious observance, so [they] may not demand that the Government join in their chosen religious practices by refraining from using a number to identify their daughter. . . ."". . . The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures."476 U.S. at 476 U. S. 699-700. Page 485 U. S. 449The building of a road or the harvesting of timber on publicly owned land cannot meaningfully be distinguished from the use of a Social Security number in Roy. In both cases, the challenged Government action would interfere significantly with private persons' ability to pursue spiritual fulfillment according to their own religious beliefs. In neither case, however, would the affected individuals be coerced by the Government's action into violating their religious beliefs; nor would either governmental action penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.We are asked to distinguish this case from Roy on the ground that the infringement on religious liberty here is "significantly greater," or on the ground that the Government practice in Roy was "purely mechanical," whereas this case involves "a case-by-case substantive determination as to how a particular unit of land will be managed." Brief for Indian Respondents 33-34. Similarly, we are told that this case can be distinguished from Roy because "the government action is not at some physically removed location where it places no restriction on what a practitioner may do." Brief for Respondent State of California 18. The State suggests that the Social Security number in Roy"could be characterized as interfering with Roy's religious tenets from a subjective point of view, where the government's conduct of 'its own internal affairs' was known to him only second-hand, and did not interfere with his ability to practice his religion."Id. at 19 (footnote omitted; internal citation omitted). In this case, however, it is said that the proposed road will "physically destro[y] the environmental conditions and the privacy without which the [religious] practices cannot be conducted." Ibid.These efforts to distinguish Roy are unavailing. This Court cannot determine the truth of the underlying beliefs that led to the religious objections here or in Roy, see Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136, 480 U. S. 144, n. 9 (1987), and accordingly cannot weigh the adverse effects Page 485 U. S. 450 on the appellees in Roy and compare them with the adverse effects on the Indian respondents. Without the ability to make such comparisons, we cannot say that the one form of incidental interference with an individual's spiritual activities should be subjected to a different constitutional analysis than the other.Respondents insist, nonetheless, that the courts below properly relied on a factual inquiry into the degree to which the Indians' spiritual practices would become ineffectual if the G-O road were built. They rely on several cases in which this Court has sustained free exercise challenges to government programs that interfered with individuals' ability to practice their religion. See Wisconsin v. Yoder, 406 U. S. 205 (1972) (compulsory school-attendance law); Sherbert v. Verner, 374 U. S. 398 (1963) (denial of unemployment benefits to applicant who refused to accept work requiring her to violate the Sabbath); Thomas v. Review Board, Indiana Employment Security Div., 450 U. S. 707 (1981) (denial of unemployment benefits to applicant whose religion forbade him to fabricate weapons); Hobbie, supra, (denial of unemployment benefits to religious convert who resigned position that required her to work on the Sabbath).Even apart from the inconsistency between Roy and respondents' reading of these cases, their interpretation will not withstand analysis. It is true that this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment. Thus, for example, ineligibility for unemployment benefits, based solely on a refusal to violate the Sabbath, has been analogized to a fine imposed on Sabbath worship. Sherbert, supra, at 374 U. S. 404. This does not and cannot imply that incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs, require government to bring forward a compelling justification Page 485 U. S. 451 for its otherwise lawful actions. T he crucial word in the constitutional text is "prohibit":"For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government."Sherbert, supra, at 374 U. S. 412 (Douglas, J., concurring).Whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs, the location of the line cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. The Government does not dispute, and we have no reason to doubt, that the logging and roadbuilding projects at issue in this case could have devastating effects on traditional Indian religious practices. Those practices are intimately and inextricably bound up with the unique features of the Chimney Rock area, which is known to the Indians as the "high country." Individual practitioners use this area for personal spiritual development; some of their activities are believed to be critically important in advancing the welfare of the Tribe, and indeed, of mankind itself. The Indians use this area, as they have used it for a very long time, to conduct a wide variety of specific rituals that aim to accomplish their religious goals. According to their beliefs, the rituals would not be efficacious if conducted at other sites than the ones traditionally used, and too much disturbance of the area's natural state would clearly render any meaningful continuation of traditional practices impossible. To be sure, the Indians themselves were far from unanimous in opposing the G-O road, see App. 180, and it seems less than certain that construction of the road will be so disruptive that it will doom their religion. Nevertheless, we can assume that the threat to the efficacy of at least some religious practices is extremely grave.Even if we assume that we should accept the Ninth Circuit's prediction, according to which the G-O road will "virtually destroy the . . . Indians' ability to practice their religion," Page 485 U. S. 452 795 F.2d at 693 (opinion below), the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires. A broad range of government activities -- from social welfare programs to foreign aid to conservation projects -- will always be considered essential to the spiritual wellbeing of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent that it is feasible, is for the legislatures and other institutions. Cf. The Federalist No. 10 (suggesting that the effects of religious factionalism are best restrained through competition among a multiplicity of religious sects).One need not look far beyond the present case to see why the analysis in Roy, but not respondents' proposed extension of Sherbert and its progeny, offers a sound reading of the Constitution. Respondents attempt to stress the limits of the religious servitude that they are now seeking to impose on the Chimney Rock area of the Six Rivers National Forest. While defending an injunction against logging operations and the construction of a road, they apparently do not at present object to the area's being used by recreational visitors, other Indians, or forest rangers. Nothing in the principle for which they contend, however, would distinguish this case from another lawsuit in which they (or similarly situated religious objectors) might seek to exclude all human activity but Page 485 U. S. 453 their own from sacred areas of the public lands. The Indian respondents insist that "[p]rivacy during the power quests is required for the practitioners to maintain the purity needed for a successful journey." Brief for Indian Respondents 8 (emphasis added; citation to record omitted). Similarly:"The practices conducted in the high country entail intense meditation and require the practitioner to achieve a profound awareness of the natural environment. Prayer seats are oriented so there is an unobstructed view, and the practitioner must be surrounded by undisturbed naturalness."Id. at 8, n. 4 (emphasis added; citations to record omitted). No disrespect for these practices is implied when one notes that such beliefs could easily require de facto beneficial ownership of some rather spacious tracts of public property. Even without anticipating future cases, the diminution of the Government's property rights, and the concomitant subsidy of the Indian religion, would in this case be far from trivial: the District Court's order permanently forbade commercial timber harvesting, or the construction of a two-lane road, anywhere within an area covering a full 27 sections (i.e. more than 17,000 acres) of public land.The Constitution does not permit government to discriminate against religions that treat particular physical sites as sacred, and a law prohibiting the Indian respondents from visiting the Chimney Rock area would raise a different set of constitutional questions. Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land. Cf. Bowen v. Roy, 476 U.S. at 476 U. S. 724-727 (O'CONNOR, J., concurring in part and dissenting in part) (distinguishing between the Government's use of information in its possession and the Government's requiring an individual to provide such information).BNothing in our opinion should be read to encourage governmental insensitivity to the religious needs of any citizen. Page 485 U. S. 454 The Government's rights to the use of its own land, for example, need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents. Cf. Sherbert, 374 U.S. at 374 U. S. 422-423 (Harlan, J., dissenting). It is worth emphasizing, therefore, that the Government has taken numerous steps in this very case to minimize the impact that construction of the G-O road will have on the Indians' religious activities. First, the Forest Service commissioned a comprehensive study of the effects that the project would have on the cultural and religious value of the Chimney Rock area. The resulting 423-page report was so sympathetic to the Indians' interests that it has constituted the principal piece of evidence relied on by respondents throughout this litigation.Although the Forest Service did not in the end adopt the report's recommendation that the project be abandoned, many other ameliorative measures were planned. No sites where specific rituals take place were to be disturbed. In fact, a major factor in choosing among alternative routes for the road was the relation of the various routes to religious sites: the route selected by the Regional Forester is, he noted,"the farthest removed from contemporary spiritual sites; thus, the adverse audible intrusions associated with the road would be less than all other alternatives."App. 102. Nor were the Forest Service's concerns limited to "audible intrusions." As the dissenting judge below observed, 10 specific steps were planned to reduce the visual impact of the road on the surrounding country. See 795 F.2d at 703 (Beezer, J., dissenting in part).Except for abandoning its project entirely, and thereby leaving the two existing segments of road to dead-end in the middle of a National Forest, it is difficult to see how the Government could have been more solicitous. Such solicitude accords with"the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions Page 485 U. S. 455 of the American Indian . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites."American Indian Religious Freedom Act (AIRFA), Pub.L. 95-341, 92 Stat. 469, 42 U.S.C. § 1996.Respondents, however, suggest that AIRFA goes further, and in effect enacts their interpretation of the First Amendment into statutory law. Although this contention was rejected by the District Court, they seek to defend the judgment below by arguing that AIRFA authorizes the injunction against completion of the G-O road. This argument is without merit. After reciting several legislative findings, AIRFA "resolves" upon the policy quoted above. A second section of the statute, 92 Stat. 470, required an evaluation of federal policies and procedures, in consultation with native religious leaders, of changes necessary to protect and preserve the rights and practices in question. The required report dealing with this evaluation was completed and released in 1979. Reply Brief for Petitioners 2, n. 3. Nowhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights.What is obvious from the face of the statute is confirmed by numerous indications in the legislative history. The sponsor of the bill that became AIRFA, Representative Udall, called it "a sense of Congress joint resolution," aimed at ensuring that"the basic right of the Indian people to exercise their traditional religious practices is not infringed without a clear decision on the part of the Congress or the administrators that such religious practices must yield to some higher consideration."124 Cong.Rec. 21444 (1978). Representative Udall emphasized that the bill would not "confer special religious rights on Indians," would "not change any existing State or Federal law," and in fact "has no teeth in it." Id. at 21444-21445. Page 485 U. S. 456CThe dissent proposes an approach to the First Amendment that is fundamentally inconsistent with the principles on which our decision rests. Notwithstanding the sympathy that we all must feel for the plight of the Indian respondents, it is plain that the approach taken by the dissent cannot withstand analysis. On the contrary, the path towards which it points us is incompatible with the text of the Constitution, with the precedents of this Court, and with a responsible sense of our own institutional role.The dissent begins by asserting that the"constitutional guarantee we interpret today . . . is directed against any form of government action that frustrates or inhibits religious practice."Post at 485 U. S. 459 (emphasis added). The Constitution, however, says no such thing. Rather, it states: "Congress shall make no law . . . prohibiting the free exercise [of religion]." U.S.Const., Amdt. 1 (emphasis added).As we explained above, Bowen v. Roy rejected a First Amendment challenge to Government activities that the religious objectors sincerely believed would "rob the spirit' of [their] daughter and prevent her from attaining greater spiritual power." See supra at 485 U. S. 448 (quoting Roy, 476 U.S. at 476 U. S. 696). The dissent now offers to distinguish that case by saying that the Government was acting there "in a purely internal manner," whereas land-use decisions "are likely to have substantial external effects." Post at 485 U. S. 470. Whatever the source or meaning of the dissent's distinction, it has no basis in Roy. Robbing the spirit of a child, and preventing her from attaining greater spiritual power, is both a "substantial external effect" and one that is remarkably similar to the injury claimed by respondents in the case before us today. The dissent's reading of Roy would effectively overrule that decision, without providing any compelling justification for doing so.The dissent also misreads Wisconsin v. Yoder, 406 U. S. 205 (1972). The statute at issue in that case prohibited the Page 485 U. S. 457 Amish parents, on pain of criminal prosecution, from providing their children with the kind of education required by the Amish religion. Id. at 406 U. S. 207-209, 406 U. S. 223. The statute directly compelled the Amish to send their children to public high schools "contrary to the Amish religion and way of life." Id. at 406 U. S. 209. The Court acknowledged that the statute might be constitutional, despite its coercive nature, if the State could show with sufficient"particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish."Id. at 406 U. S. 236 (citation omitted). The dissent's out-of-context quotations notwithstanding, there is nothing whatsoever in the Yoder opinion to support the proposition that the "impact" on the Amish religion would have been constitutionally problematic if the statute at issue had not been coercive in nature. Cf. post at 485 U. S. 466.Perceiving a "stress point in the longstanding conflict between two disparate cultures," the dissent attacks us for declining to"balanc[e] these competing and potentially irreconcilable interests, choosing instead to turn this difficult task over to the Federal Legislature."Post at 485 U. S. 473. Seeing the Court as the arbiter, the dissent proposes a legal test under which it would decide which public lands are "central" or "indispensable" to which religions, and by implication which are "dispensable" or "peripheral," and would then decide which government programs are "compelling" enough to justify "infringement of those practices." Post at 485 U. S. 475. We would accordingly be required to weigh the value of every religious belief and practice that is said to be threatened by any government program. Unless a "showing of centrality,'" post at 485 U. S. 474, is nothing but an assertion of centrality, see post at 485 U. S. 475, the dissent thus offers us the prospect of this Court's holding that some sincerely held religious beliefs and practices are not "central" to certain religions, despite protestations to the contrary from the religious objectors who brought the lawsuit. In other words, the dissent's approach would Page 485 U. S. 458 require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that we were never intended to play.IVThe decision of the court below, according to which the First Amendment precludes the Government from completing the G-O road or from permitting timber harvesting in the Chimney Rock area, is reversed. In order that the District Court's injunction may be reconsidered in light of this holding, and in the light of any other relevant events that may have intervened since the injunction issued, the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtLyng v. Northwest Indian Cemetery, 485 U.S. 439 (1988)Lyng v. Northwest Indian Cemetery Protective AssociationNo. 86-1013Argued November 30, 1987Decided April 19, 1988485 U.S. 439SyllabusIn 1982, the United States Forest Service prepared a final environmental impact statement for constructing a paved road through federal land, including the Chimney Rock area of the Six Rivers National Forest. This area, as reported in a study commissioned by the Service, has historically been used by certain American Indians for religious rituals that depend upon privacy, silence, and an undisturbed natural setting. Rejecting the study's recommendation that the road not be completed through the Chimney Rock area because it would irreparably damage the sacred areas, and also rejecting alternative routes outside the National Forest, the Service selected a route through the Chimney Rock area that avoided archeological sites and was removed as far as possible from the sites used by the Indians for specific spiritual activities. At about the same time, the Service also adopted a management plan allowing for timber harvesting in the same area, but providing for protective zones around all the religious sites identified in the study. After exhausting administrative remedies, respondents -- an Indian organization, individual Indians, nature organizations and members thereof, and the State of California -- filed suit in Federal District Court challenging both the road-building and timber harvesting decisions. The court issued a permanent injunction that prohibited the Government from constructing the Chimney Rock section of the road or putting the timber harvesting plan into effect, holding, inter alia, that such actions would violate respondent Indians' rights under the Free Exercise Clause of the First Amendment and would violate certain federal statutes. The Court of Appeals affirmed in pertinent part.Held:1. The courts below did not clearly explain whether -- in keeping with the principle requiring that courts reach constitutional questions only when necessary -- they determined that a decision on the First Amendment issue was necessary because it might entitle respondents to relief beyond that to which they were entitled on their statutory claims. The structure and wording of the District Court's injunction, however, suggest that the statutory holding would not have supported all the relief Page 485 U. S. 440 granted, and the Court of Appeals' silence as to the necessity of reaching the First Amendment issue may have reflected its understanding that the District Court's injunction necessarily rested in part on constitutional grounds. Because it appears reasonably likely that the First Amendment issue was necessary to the decisions below, and because the Government is confident that it can cure the statutory defects identified below, it would be inadvisable for this Court to vacate and remand without addressing the constitutional question on the merits. Pp. 485 U. S. 445-447.2. The Free Exercise Clause does not prohibit the Government from permitting timber harvesting in the Chimney Rock area or constructing the proposed road. Pp. 485 U. S. 447-458.(a) In Bowen v. Roy, 476 U. S. 693 -- which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause -- this Court rejected the same kind of challenge that respondents assert. Just as in Roy, the affected individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would the governmental action penalize the exercise of religious rights by denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Even assuming that the Government's actions here will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. Pp. 485 U. S. 447-453.(b) The Government's right to the use of its own lands need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents. The Government has taken numerous steps to minimize the impact that construction of the road will have on the Indians' religious activities -- such as choosing the route that best protects sites of specific rituals from adverse audible intrusions and planning steps to reduce the visual impact of the road on the surrounding country. Such solicitude accords with the policy and requirements of the American Indian Religious Freedom Act. Contrary to respondents' contention, however, that Act does not create any enforceable legal right that could authorize the District Court's injunction. Pp. 485 U. S. 453-455.795 F.2d 688, reversed and remanded. Page 485 U. S. 441O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, STEVENS, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 485 U. S. 458. KENNEDY, J., took no part in the consideration or decision of the case.

1976_75-831

MR. JUSTICE STEWART delivered the opinion of the Court.The question in this case is whether New York provides a "plain, speedy and efficient" remedy to an out-of-state Page 429 U. S. 69 corporation that seeks to challenge New York's assessment of sales taxes against it. The United States District Court for the District of Vermont held that New York does not provide such a remedy, and issued a preliminary injunction restraining the collection of the New York taxes. 404 F. Supp. 738. We noted probable jurisdiction of the appeal, 424 U.S. 907.IThe appellee, Griffin, Inc., is a Vermont corporation that operates a furniture store in Arlington, Vt., six miles from the New York-Vermont border. It advertises on radio and television and in newspapers that serve the Albany-Schenectady-Troy area of New York, and makes substantial sales at its place of business to customers from that State. It regularly delivers furniture to the New York buyers in its own trucks, and its employees also enter New York on occasion to repair furniture it has sold.In February, 1973, the New York Department of Taxation and Finance determined that Griffin was "doing business" in New York, and thus was required to collect state and local sales taxes from its New York customers. The Department sent a tax examiner to Vermont to audit Griffin's records, but Griffin refused its consent. Little more happened until March, 1975, when the Department reaffirmed its position and advised Griffin that another tax examiner would soon be dispatched for an audit. Griffin responded by filing suit in the United States District Court for the District of Vermont, alleging generally that any assessment, levy, or collection of sales taxes against it would violate the Commerce, Due Process, and Equal Protection Clauses of the United States Constitution, and asking for injunctive relief. A three-judge court was convened.After Griffin again denied the tax examiner access to its records, the Department issued a "Notice of Determination and Demand for Payment of Sales and Use Taxes Due." Page 429 U. S. 70 This assessment, by necessity only an estimate, demanded that Griffin pay $218,085.37 in back taxes, interest, and penalties. [Footnote 1] Griffin moved in the federal court for a preliminary injunction to prevent steps from being taken to collect the taxes and to stay the running of the 90-day period in which it could contest the amount shown in the Notice of Determination. [Footnote 2] The defendant New York tax officials filed a cross-motion to dismiss the action for lack of jurisdiction, claiming that suit was barred by the Tax Injunction Act, 28 U.S.C. § 1341, which provides: ."The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State."The District Court rejected this defense, ruling that New York law does not provide Griffin "a plain, speedy and efficient remedy."In reaching this conclusion, the federal court considered first the availability under New York law of direct review of the Notice of Determination. Under New York Tax Law § 1138(a), a taxpayer has 90 days from the receipt of a notice of determination to apply for a hearing before the Tax Commission. [Footnote 3] The Tax Commission's decision after the Page 429 U. S. 71 hearing is judicially reviewable "for error, illegality or unconstitutionality or any other reason whatsoever" in a proceeding under Art. 78 of New York's Civil Practice Law and Rules. [Footnote 4] Before a taxpayer may seek Art. 78 review, however, he must either prepay or post a bond for the amount of the assessment. The court found that Griffin lacked the means to do this. Although the assessment was only a gross estimate, the court assumed that the amount would not be changed unless Griffin submitted to an audit. It ruled that Griffin should not be required to "tur[n] over its books and records to a state whose authority it claims is invalid," and Page 429 U. S. 72 further questioned whether a New York court would entertain an Art. 78 proceeding if Griffin refused to be audited. 404 F. Supp. at 743-745.The District Court then considered the availability of declaratory relief under § 3001 of New York's Civil Practice Law and Rules. [Footnote 5] It viewed this possible avenue of relief as insufficiently "plain, speedy and efficient" because N.Y.Tax Law § 1140, on its face, seems to limit review of sales tax liability to the Art. 78 procedure discussed above. [Footnote 6] Although the court took note of substantial federal and New York case law holding that New York's administrative review proceedings are not, in fact, exclusive where a plaintiff claims that a tax is unconstitutional, the court concluded that the issue was "cloak[ed] . . . in some uncertainty." Even if Griffin could get declaratory relief, the court held, its contacts with New York were so "minimal" that "it seems unfair to make Griffin litigate in an unfamiliar forum." Finally, the court expressed "reservations" about Griffin's ability to get a preliminary injunction pending a New York court's decision in a declaratory judgment suit. 404 F. Supp. at 745-747. On the basis of this reasoning, the District Court granted Griffin preliminary injunctive relief. Page 429 U. S. 73IIA federal district court is under an equitable duty to refrain from interfering with a State's collection of its revenue except in cases where an asserted federal right might otherwise be lost. See Hillsborough v. Cromwell, 326 U. S. 620, 326 U. S. 622-623; Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293, 319 U. S. 297-299; Matthews v. Rodgers, 284 U. S. 521, 284 U. S. 525-526. This policy of restraint has long been reflected and confirmed in the congressional command of 28 U.S.C. § 1341 that no injunction may issue against the collection of a state tax where state law provides a "plain, speedy and efficient remedy." As the Court has frequently had occasion to note, the statute has its roots in equity practice, in principles of federalism, and in recognition of the imperative need of a State to administer its own fiscal operations."Interference with state internal economy and administration is inseparable from assaults in the federal courts on the validity of state taxation, and necessarily attends injunctions, interlocutory or final, restraining collection of state taxes. These are the considerations of moment which have persuaded federal courts of equity to deny relief to the taxpayer especially when the state, acting within its constitutional authority, has set up its own adequate procedure for securing to the taxpayer the recovery of an illegally exacted tax."Great Lakes Dredge & Dock Co. v. Huffman, supra at 319 U. S. 298. See also Moe v. Salish & Kootenai Tribes, 425 U. S. 463; Hillsborough v. Cromwell, supra at 326 U. S. 622-623; Matthews v. Rodgers, supra at 284 U. S. 525-526.These principles do not lose their force, and a State's remedy does not become "inefficient," merely because a taxpayer must travel across a state line in order to resist or challenge the taxes sought to be imposed. If New York provides an otherwise adequate remedy, the mere fact that Griffin must go to New York to invoke it does not jeopardize its ability to assert its rights. To accept the District Court's holding that it would be "unfair" to make Griffin litigate in Page 429 U. S. 74 New York would undermine much of the force of 28 U.S.C. § 1341.We turn then to the basic inquiry -- whether under New York law there is a "plain, speedy and efficient" way for Griffin to press its constitutional claims while preserving the right to challenge the amount of tax due. This Court answered the first part of that question by its summary judgment of affirmance three years ago in Ammex Warehouse Co. v. Gallman, 414 U.S. 802. In that case, the New York Tax Commission had assessed state alcoholic beverage, tobacco; and sales taxes against two New York companies that sold cigarettes and liquor to persons about to leave the State to enter Canada. The companies brought suit in Federal District Court, claiming that the assessment of the taxes against them violated the Commerce and Import-Export Clauses of the Constitution. The three-judge District Court held that 28 U.S.C. § 1341 required dismissal of the action. Ammex-Champlain Corp. v. Callman, 72 Civ. 306 (NDNY, Mar. 15, 1973) (unreported). The court held that"[t]here is ample authority that a declaratory judgment action may be employed to challenge imposition of a tax. . . . Accordingly, Ammex may present its arguments in the state supreme court and seek a declaratory judgment from that court that application of these taxes to Ammex's export operations is unconstitutional."The correctness of that holding was placed squarely before us by the Jurisdictional Statement that the appellants filed in this Court in the Ammex case. This Court's affirmance of the District Court's judgment is therefore a controlling precedent, unless and until reexamined by this Court. Hicks v. Miranda, 422 U. S. 332, 422 U. S. 343-345. Since, however, it was a summary affirmance, it is not here "of the same precedential value as would be an opinion of this Court treating the question on the merits." Edelman v. Jordan, 415 U. S. 651, 415 U. S. 671. But having now had Page 429 U. S. 75 a full opportunity to consider the issue after briefing and argument, we adhere to our judgment in the Ammex case.The District Court's ruling in that case was fully supported by New York decisional law. Despite the provisions of its taxing statutes that provide that judicial review of an administrative determination shall be a taxpayer's only remedy, the New York courts have consistently held that other procedures, including an action for a declaratory judgment, may be used when the claim is that the tax is unconstitutional. Slater v. Gallman, 38 N.Y.2d 1, 4, 339 N.E.2d 863, 864 (1975); In re First Nat. City Bank v. City of New York Finance Admin., 36 N.Y.2d 87, 92-93, 324 N.E.2d 861, 864 (1975); Richfield Oil Corp. v. City of Syracuse, 287 N.Y. 234, 239, 39 N.E.2d 219, 221 (1942); Dun Bradstreet, Inc. v. City of New York, 276 N.Y. 198, 206, 11 N.E.2d 728, 731-732 (1937); Hospital TV Sys., Inc. v. State Tax Comm'n, 41 App.Div.2d 576, 339 N.Y.S.2d 603 (1973). Thus, we remain fully persuaded that the District Court's holding in Ammex was correct, announced as it was by three New York federal judges "who are familiar with the intricacies and trends of local law and practice," Bishop v. Wood, 426 U. S. 341, 426 U. S. 346 n. 10, quoting Hillsborough v. Cromwell, supra at 326 U. S. 630, quoting Huddleston v. Dwyer, 322 U. S. 232, 322 U. S. 237.It also seems clear that, under New York law, Griffin can fully preserve its right to challenge the amount of tax due while litigating its constitutional claim that no tax at all can validly be assessed against it. Griffin, in other words, need not accept as binding the Tax Commission's rough estimate of its sales tax liability as a price of challenging the constitutionality of the tax.The New York Attorney General in his brief and in oral argument has represented to this Court that Griffin can obtain a preliminary injunction in state court that will toll the running of the 90-day period within which Griffin may challenge the amount of the assessment at an administrative Page 429 U. S. 76 hearing. [Footnote 7] Moreover, we have no reason to believe that a New York court, acting sua sponte, would question its ability to award preliminary relief in a proper case.The District Court cited no New York authority for its "reservations" on this score, and we have found none. To the contrary, a New York statute speaks of the availability of a preliminary injunction "in any action" where certain conditions are met. N.Y. Civ. Prac. § 6301 (McKinney 1963). There are New York cases suggesting that courts may award preliminary relief in declaratory judgment actions in general, see, e.g., In re Public Serv. Comm'n v. Norton, 304 N.Y. 522, 529, 109 N.E.2d 705, 708 (1952); Opoliner v. Joint Queensview Housing Enterp., Inc., 11 App.Div.2d 1076, 206 N.Y.S.2d 681 (1960), and several New York courts have done so in cases involving the collection of taxes. See, e.g., Stacy v. State, 82 Misc.2d 181, 368 N.Y.S.2d 448 (Sup.Ct.1975) (sales tax); Glen Cove Theatres, Inc. v. City of Glen Cove, 231 N.Y.S.2d 747 (Sup.Ct.1962). See also Dun & Bradstreet, Inc. v. City of New York, supra at 206, 11 N.E.2d at 731-732 (permanent injunction approved in declaratory judgment action challenging imposition of sales tax). Although we have held that uncertainty concerning a State's remedy may make it less than "plain" under 28 U.S.C. § 1341, see Hillsborough v. Cromwell, 326 U.S. at 326 U. S. 625, these New York precedents convincingly demonstrate that Griffin's fears about the availability of such preliminary relief are unfounded. [Footnote 8]Since New York provides a "plain, speedy and efficient" means for the redress of Griffin's constitutional claims, the Page 429 U. S. 77 District Court should not have granted injunctive relief. Its judgment granting Griffin's motion for a preliminary injunction is vacated, and the case is remanded to that court with instructions to dismiss the complaint.It is so ordered

U.S. Supreme CourtTully v. Griffin, Inc., 429 U.S. 68 (1976)Tully v. Griffin, Inc.No. 75-831Argued October 4, 1976Decided November 9, 1976429 U.S. 68SyllabusThe Tax Injunction Act, 28 U.S.C. $ 1341, which prohibits federal district courts from enjoining the assessment, levy, or collection of state taxes where "a plain, speedy and efficient remedy may be had in the courts of such State," held to bar appellee Vermont furniture store's suit in Federal District Court for injunctive relief against allegedly unconstitutional assessment of New York sales taxes on appellee's sales to New York customers, since New York provides a "plain, speedy and efficient" means for redress of appellee's constitutional claims while preserving the right to challenge the amount of taxes due. Despite New York statutes providing that judicial review of an administrative determination shall be a taxpayer's only remedy, other procedures, including a declaratory judgment action, may be used in New York courts when the claim is that the tax is unconstitutional, Ammex Warehouse Co. v. Gallman, 414 U.S. 802. Moreover, appellee need not accept as binding the amount of the assessment as a price of challenging the constitutionality of the tax, but can obtain a preliminary injunction in state court that will toll the running of the 90-day period within which appellee may challenge such amount at an administrative hearing. Pp. 429 U. S. 73-77.404 F. Supp. 738, vacated and remanded.STEWART, J., delivered the opinion for a unanimous Court.

1974_74-389

MR JUSTICE STEWART delivered the opinion of the Court.These consolidated cases raise two important questions under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. III): First: when employees or applicants for employment have lost the opportunity to earn wages because an employer has engaged in an unlawful discriminatory employment practice, what standards should a federal district court follow in deciding whether to award or deny backpay? Second: what must an employer show to establish that pre-employment tests racially discriminatory in effect, though not in intent, are sufficiently "job-related" to survive challenge under Title VII?IThe respondents -- plaintiffs in the District Court -- are a certified class of present and former Negro employees at a paper mill in Roanoke Rapids, N.C.; the petitioners -- defendants in the District Court -- are the plant's owner, the Albemarle Paper Co., and the plant employees' labor union, Halifax Local No. 425. [Footnote 1] In August, 1966, after filing a complaint with the Equal Employment Opportunity Commission (EEOC), and receiving notice of their right to sue, [Footnote 2] the Page 422 U. S. 409 respondents brought a class action in the United States District Court for the Eastern District of North Carolina, asking permanent injunctive relief against "any policy, practice, custom or usage" at the plant that violated Title VII. The respondents assured the court that the suit involved no claim for any monetary awards on a class basis, but, in June, 1970, after several years of discovery, the respondents moved to add a class demand for backpay. The court ruled that this issue would be considered at trial.At the trial, in July and August, 1971, the major issues were the plant's seniority system, its program of employment testing, and the question of backpay. In its opinion of November 9, 1971, the court found that the petitioners had "strictly segregated" the plant's departmental "lines of progression" prior to January 1, 1964, reserving the higher paying and more skilled lines for whites. The "racial identifiability" of whole lines of progression persisted until 1968, when the lines were reorganized under a new collective bargaining agreement. The court found, however, that this reorganization left Negro employees "locked' in the lower paying job classifications." The formerly "Negro" lines of progression had been merely tacked on to the bottom of the formerly "white" lines, and promotions, demotions, and layoffs continued to be governed -- where skills were "relatively equal" -- by a system of "job seniority." Because of the plant's previous history of overt segregation, only whites had seniority in the higher job categories. Accordingly, the court ordered the petitioners to implement a system of "plantwide" seniority. Page 422 U. S. 410The court refused, however, to award backpay to the plaintiff class for losses suffered under the "job seniority" program. [Footnote 3] The court explained:"In the instant case, there was no evidence of bad faith noncompliance with the Act. It appears that the company, as early as 1964, began active recruitment of blacks for its Maintenance Apprentice Program. Certain lines of progression were merged on its own initiative, and as judicial decisions expanded the then existing interpretations of the Act, the defendants took steps to correct the abuses without delay. . . .""In addition, an award of back pay is an equitable remedy. . . . The plaintiffs' claim for back pay was filed nearly five years after the institution of this action. It was not prayed for in the pleadings. Although neither party can be charged with deliberate dilatory tactics in bringing this cause to trial, it is apparent that the defendants would be substantially prejudiced by the granting of such affirmative relief. The defendants might have chosen to exercise unusual zeal in having this court determine their rights at an earlier date had they known that back pay would be at issue."The court also refused to enjoin or limit Albemarle's testing program. Albemarle had required applicants for employment in the skilled lines of progression to have a high school diploma and to pass two tests, the Revised Beta Examination, allegedly a measure of nonverbal intelligence, Page 422 U. S. 411 and the Wonderlic Personnel Test (available in alternative Forms A and B), allegedly a measure of verbal facility. After this Court's decision in Griggs v. Duke Power Co., 401 U. S. 424 (1971), and on the eve of trial, Albemarle engaged an industrial psychologist to study the "job-relatedness" of its testing program. His study compared the test scores of current employees with supervisorial judgments of their competence in ten job groupings selected from the middle or top of the plant's skilled lines of progression. The study showed a statistically significant correlation with supervisorial ratings in three job groupings for the Beta Test, in seven job groupings for either Form A or Form B of the Wonderlic Test, and in two job groupings for the required battery of both the Beta and the Wonderlic Tests. [Footnote 4] The respondents' experts challenged the reliability of these studies, but the court concluded:"The personnel tests administered at the plant have undergone validation studies and have been proven to be job-related. The defendants have carried the burden of proof in proving that these tests are 'necessary for the safe and efficient operation of the business,' and are, therefore, permitted by the Act. However, the high school education requirement used in conjunction with the testing requirements is unlawful in that the personnel tests alone are adequate to measure the mental ability and reading skills required for the job classifications."The petitioners did not seek review of the court's judgment, but the respondents appealed the denial of a backpay award and the refusal to enjoin or limit Albemarle's use of pre-employment tests. A divided Court of Appeals for the Fourth Circuit reversed the judgment of Page 422 U. S. 412 the District Court, ruling that backpay should have been awarded and that use of the tests should have been enjoined, 474 F.2d 134 (1973). As for backpay, the Court of Appeals held that an award could properly be requested after the complaint was filed, and that an award could not be denied merely because the employer had not acted in "bad faith," id. at 142:"Because of the compensatory nature of a back pay award and the strong congressional policy embodied in Title VII, a district court must exercise its discretion as to back pay in the same manner it must exercise discretion as to attorney fees under Title II of the Civil Rights Act. . . . Thus, a plaintiff or a complaining class who is successful in obtaining an injunction under Title VII of the Act should ordinarily be awarded back pay unless special circumstances would render such an award unjust. Newman v. Piggie Park Enterprises, 390 U. S. 400 . . . (1968)."(Footnote omitted.) As for the pre-employment tests, the Court of Appeals held, id. at 138, that it was error"to approve a validation study done without job analysis, to allow Albemarle to require tests for 6 lines of progression where there has been no validation study at all, and to allow Albemarle to require a person to pass two tests for entrance into 7 lines of progression when only one of those tests was validated for that line of progression."In so holding, the Court of Appeals "gave great deference" to the "Guidelines on Employee Selection Procedures," 29 CFR pt. 1607, which the EEOC has issued"as a workable set of standards for employers, unions and employment agencies in determining whether their selection Page 422 U. S. 413 procedures conform with the obligations contained in title VII. . . ."29 CFR § 1607.1(c).We granted certiorari [Footnote 5] because of an evident Circuit conflict as to the standards governing awards of backpay [Footnote 6] and as to the showing required to establish the "job-relatedness" of pre-employment tests. [Footnote 7]IIWhether a particular member of the plaintiff class should have been awarded any backpay and, if so, how much, are questions not involved in this review. The equities of individual cases were never reached. Though at least some of the members of the plaintiff class obviously suffered a loss of wage opportunities on account of Albemarle's unlawfully discriminatory system of job seniority, the District Court decided that no backpay should be awarded to anyone in the class. The court declined to make such an award on two stated grounds: the lack of "evidence of bad faith noncompliance with the Act," and the fact that "the defendants would be substantially prejudiced" by an award of backpay that was demanded contrary to an earlier representation and late in the progress of the litigation. Relying directly Page 422 U. S. 414 on Newman v. Pigge Park Enterprises, 390 U. S. 400 (1968), the Court of Appeals reversed, holding that backpay could be denied only in "special circumstances." The petitioners argue that the Court of Appeals was in error -- that a district court has virtually unfettered discretion to award or deny backpay, and that there was no abuse of that discretion here. [Footnote 8] Page 422 U. S. 415Piggie Park Enterprises, supra, is not directly in point. The Court held there that attorneys' fees should "ordinarily" be awarded -- i.e., in all but "special circumstances" -- to plaintiffs successful in obtaining injunctions against discrimination in public accommodations, under Title II of the Civil Rights Act of 1964. While the Act appears to leave Title II fee awards to the district court's discretion, 42 U.S.C. § 2000a-3(b), the court determined that the great public interest in having injunctive actions brought could be vindicated only if successful plaintiffs, acting as "private attorneys general," were awarded attorneys' fees in all but very unusual circumstances. There is, of course, an equally strong public interest in having injunctive actions brought under Title VII, to eradicate discriminatory employment practices. But this interest can be vindicated by applying the Piggie Park standard to the attorneys' fees provision of Title VII, 42 U.S.C. § 2000e 5(k), see Northcross v. Memphis Board of Education, 412 U. S. 427, 412 U. S. 428 (1973). For guidance as to the granting and denial of backpay, one must, therefore, look elsewhere.The petitioners contend that the statutory scheme provides no guidance, beyond indicating that backpay awards are within the District Court's discretion. We disagree. It is true that backpay is not an automatic or mandatory remedy; like all other remedies under the Act, it is one which the courts "may" invoke. [Footnote 9] The Page 422 U. S. 416 scheme implicitly recognizes that there may be cases calling for one remedy but not another, and -- owing to the structure of the federal judiciary -- these choices are, of course, left in the first instance to the district courts. However, such discretionary choices are not left to a court's "inclination, but to its judgment, and its judgment is to be guided by sound legal principles." United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C.J.). The power to award backpay was bestowed by Congress, as part of a complex legislative design directed at a historic evil of national proportions. A court must exercise this power "in light of the large objectives of the Act," Hecht Co. v. Bowles, 321 U. S. 321, 321 U. S. 331 (1944). That the court's discretion is equitable in nature, see Curtis v. Loether, 415 U. S. 189, 415 U. S. 197 (1974), hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review. In Mitchell v. DeMario Jewelry, 361 U. S. 288, 361 U. S. 292 (1960), this Court held, in the face of a silent statute, that district courts enjoyed the "historic power of equity" to award lost wages to workmen unlawfully discriminated Page 422 U. S. 417 against under § 17 of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U.S.C. § 217 (1958 ed.). The Court simultaneously noted that "the statutory purposes [leave] little room for the exercise of discretion not to order reimbursement." 361 U.S. at 361 U. S. 296.It is true that "[e]quity eschews mechanical rules . . . [and] depends on flexibility." Holmberg v. Armbrecht, 327 U. S. 392, 327 U. S. 396 (1946). But when Congress invokes the Chancellor's conscience to further transcendent legislative purposes, what is required is the principled application of standards consistent with those purposes and not "equity [which] varies like the Chancellor's foot." [Footnote 10] Important national goals would be frustrated by a regime of discretion that "produce[d] different results for breaches of duty in situations that cannot be differentiated in policy." Moragne v. States Marine Lines, 398 U. S. 375, 398 U. S. 405 (1970).The District Court's decision must therefore be measured against the purposes which inform Title VII. As the Court observed in Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 429-430, the primary objective was a prophylactic one:"It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees."Backpay has an obvious connection with this purpose. If employers faced only the prospect of an injunctive order, they would have little incentive to shun practices of dubious legality. It is the reasonably certain prospect of a backpay award that"provide[s] the spur or catalyst Page 422 U. S. 418 which causes employers and unions to self-examine and to 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."United States v. N. L. Industries, Inc., 479 F.2d 354, 379 (CA8 1973).It is also the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination. This is shown by the very fact that Congress took care to arm the courts with full equitable powers. For it is the historic purpose of equity to "secur[e] complete justice," Brown v. Swann, 10 Pet. 497, 35 U. S. 503 (1836); see also Porter v. Warner Holding Co., 328 U. S. 395, 328 U. S. 397-398 (1946)."[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief."Bell v. Hood, 327 U. S. 678, 327 U. S. 684 (1946). Title VII deals with legal injuries of an economic character occasioned by racial or other anti-minority discrimination. The terms "complete justice" and "necessary relief" have acquired a clear meaning in such circumstances. Where racial discrimination is concerned,"the [district] court has not merely the power but the duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in the future."Louisiana v. United States, 380 U. S. 145, 380 U. S. 154 (1965). And where a legal injury is of an economic character,"[t]he general rule is that, when a wrong has been done and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in Page 422 U. S. 419 the situation he would have occupied if the wrong had not been committed."Wicker v. Hoppock, 6 Wall. 94, 73 U. S. 99 (1867).The "make whole" purpose of Title VII is made evident by the legislative history. The backpay provision was expressly modeled on the backpay provision of the National Labor Relations Act. [Footnote 11] Under that Act,"[m]aking the workers whole for loses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces."Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 313 U. S. 197 (1941). See also Nathanson v. NLRB, 344 U. S. 25, 344 U. S. 27 (1952); NLRB v. Rutter-Rex Mfg. Co., 396 U. S. 258, 396 U. S. 263 (1969). We may assume that Congress was aware that the Board, Page 422 U. S. 420 since its inception, has awarded backpay as a matter of course -- not randomly or in the exercise of a standardless discretion, and not merely where employer violations are peculiarly deliberate, egregious, or inexcusable. [Footnote 12] Furthermore, in passing the Equal Employment Opportunity Act of 1972, Congress considered several bills to limit the judicial power to award backpay. These limiting efforts were rejected, and the backpay provision was reenacted substantially in its original form. [Footnote 13] A Section-by-Section Analysis introduced by Senator Williams to accompany the Conference Committee Report on the 1972 Act Page 422 U. S. 421 strongly reaffirmed the "make whole" purpose of Title VII:"The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. In dealing with the present section 706(g), the courts have stressed that the scope of relief under that section of the Act is intended to make the victims of unlawful discrimination whole, and that the attainment of this objective rests not only upon the elimination of the particular unlawful employment practice complained of, but also requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination."118 Cong.Rec. 7168 (1972). As this makes clear, Congress' purpose in vesting a variety of "discretionary" powers in the courts was not to limit appellate review of trial courts, or to invite inconsistency and caprice, but rather to make possible the "fashion[ing] [of] the most complete relief possible."It follows that, given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination. [Footnote 14] The courts of appeals must maintain a consistent and principled application of the backpay provision, consonant with the twin statutory objectives, while at the same time recognizing that the trial court will often have the keener appreciation Page 422 U. S. 422 of those facts and circumstances peculiar to particular cases.The District Court's stated grounds for denying backpay in this case must be tested against these standards. The first ground was that Albemarle's breach of Title VII had not been in "bad faith." [Footnote 15] This is not a sufficient reason for denying backpay. Where an employer has shown bad faith -- by maintaining a practice which he knew to be illegal or of highly questionable legality -- he can make no claims whatsoever on the Chancellor's conscience. But, under Title VII, the mere absence of bad faith simply opens the door to equity; it does not depress the scales in the employer's favor. If backpay were awardable only upon a showing of bad faith, the remedy would become a punishment for moral turpitude, rather than a compensation for workers' injuries. This would read the "make whole" purpose right out of Title VII, for a worker's injury is no less real simply because his employer did not inflict it in "bad faith." [Footnote 16] Title VII is not concerned with the employer's "good intent or absence of discriminatory intent," for "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation." Griggs v. Duke Page 422 U. S. 423 Power Co., 401 U.S. at 401 U. S. 432. See also Watson v. City of Memphis, 373 U. S. 526, 373 U. S. 535 (1963); Wright v. Council of City of Emporia, 407 U. S. 451, 407 U. S. 461-462 (1972). [Footnote 17] To condition the awarding of backpay on a showing of "bad faith" would be to open an enormous chasm between injunctive and backpay relief under Title VII. There is nothing on the face of the statute or in its legislative history that justifies the creation of drastic and categorical distinctions between those two remedies. [Footnote 18]The District Court also grounded its denial of backpay on the fact that the respondents initially disclaimed any interest in backpay, first asserting their claim five years after the complaint was filed. The court concluded that the petitioners had been "prejudiced" by this conduct. The Court of Appeals reversed on the ground"that the broad aims of Title VII require that the issue of back pay be fully developed and determined even though it was not raised until the post-trial stage of litigation,"474 F.2d at 141. Page 422 U. S. 424It is true that Title VII contains no legal bar to raising backpay claims after the complaint for injunctive relief has been filed, or indeed after a trial on that complaint has been had. [Footnote 19] Furthermore, Fed.Rule Civ.Proc. 54(c) directs that"every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings."But a party may not be "entitled" to relief if its conduct of the cause has improperly and substantially prejudiced the other party. The respondents here were not merely tardy, but also inconsistent, in demanding backpay. To deny backpay because a particular cause has been prosecuted in an eccentric fashion, prejudicial to the other party, does not offend the broad purposes of Title VII. This is not to say, however, that the District Court's ruling was necessarily correct. Whether the petitioners were, in fact, prejudiced, and whether the respondents' trial conduct was excusable, are questions that will be open to review by the Court of Appeals if the District Court, on remand, decides again to decline to make any award of backpay. [Footnote 20] But the standard of review will be the familiar one of whether the District Court was "clearly erroneous" in its factual findings and whether it "abused" its traditional discretion to locate "a just result" in light of the circumstances peculiar to the case, Page 422 U. S. 425 Langnes v. Green, 282 U. S. 531, 282 U. S. 541 (1931). On these issues of procedural regularity and prejudice, the "broad aims of Title VII" provide no ready solution.IIIIn Griggs v. Duke Power Co., 401 U. S. 424 (1971), this Court unanimously held that Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets "the burden of showing that any given requirement [has] . . . a manifest relationship to the employment in question." Id. at 401 U. S. 432. [Footnote 21] This burden arises, of course, only after the complaining party or class has made out a prima facie case of discrimination, i.e., has shown that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants. See McDonnell Douglas Corp. v. Green, 411 U. S. 792, 411 U. S. 802 (1973). If an employer does then meet the burden of proving that its tests are "job-related," it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer's legitimate interest in "efficient and trustworthy workmanship." Id. at 411 U. S. 801. Such a showing would be evidence that the employer was using its tests merely as a "pretext" for discrimination. Id. at 411 U. S. 804-805. In the present case, however, we are concerned only with the question whether Albemarle has shown its tests to be job-related. Page 422 U. S. 426The concept of job-relatedness takes on meaning from the facts of the Griggs case. A power company in North Carolina had reserved its skilled jobs for whites prior to 1965. Thereafter, the company allowed Negro workers to transfer to skilled jobs, but all transferees -- white and Negro -- were required to attain national median scores on two tests:"[T]he Wonderlic Personnel Test, which purports to measure general intelligence, and the Bennett Mechanical Comprehension Test. Neither was directed or intended to measure the ability to learn to perform a particular job or category of jobs. . . .""* * * *" ". . . Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job performance ability. Rather, a vice-president of the Company testified, the requirements were instituted on the Company's judgment that they generally would improve the overall quality of the workforce."401 U.S. at 401 U. S. 428-431. The Court took note of"the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability,"id. at 401 U. S. 433, and concluded:"Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. . . . What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract."Id. at 401 U. S. 436. Page 422 U. S. 427Like the employer in Griggs, Albemarle uses two general ability tests, the Beta Examination, to test nonverbal intelligence, and the Wonderlic Test (Forms A and B), the purported measure of general verbal facility which was also involved in the Griggs case. Applicants for hire into various skilled lines of progression at the plant are required to score 100 on the Beta Exam and 18 on one of the Wonderlic Test's two alternative forms. [Footnote 22]The question of job-relatedness must be viewed in the context of the plant's operation and the history of the testing program. The plant, which now employs about 650 persons, converts raw wood into paper products. It is organized into a number of functional departments, each with one or more distinct lines of progression, the theory being that workers can move up the line as they acquire the necessary skills. The number and structure of the lines have varied greatly over time. For many years, certain lines were themselves more skilled and paid higher wages than others, and, until 1964, these skilled lines were expressly reserved for white workers. In 1968, many of the unskilled "Negro" lines were "end-tailed" onto skilled "white" lines, but it apparently remains true that at least the top jobs in certain lines require greater skills than the top jobs in other lines. In this sense, at least, it is still possible to speak of relatively skilled and relatively unskilled lines.In the 1950's, while the plant was being modernized with new and more sophisticated equipment, the Company introduced a high school diploma requirement for entry into the skilled lines. Though the Company soon concluded that this requirement did not improve the quality of the labor force, the requirement was continued Page 422 U. S. 428 until the District Court enjoined its use. In the late 1950's, the Company began using the Beta Examination and the Bennett Mechanical Comprehension Test (also involved in the Griggs case) to screen applicants for entry into the skilled lines. The Bennett Test was dropped several years later, but use of the Beta Test continued. [Footnote 23]The Company added the Wonderlic Tests in 1963, for the skilled lines, on the theory that a certain verbal intelligence was called for by the increasing sophistication of the plant's operations. The Company made no attempt to validate the test for job-relatedness, [Footnote 24] and simply adopted the national "norm" score of 18 as a cut-off point for new job applicants. After 1964, when it discontinued overt segregation in the lines of progression, Page 422 U. S. 429 the Company allowed Negro workers to transfer to the skilled lines if they could pass the Beta and Wonderlic Tests, but few succeeded in doing so. Incumbents in the skilled lines, some of whom had been hired before adoption of the tests, were not required to pass them to retain their jobs or their promotion rights. The record shows that a number of white incumbents in high-ranking job groups could not pass the tests. [Footnote 25]Because departmental reorganization continued up to the point of trial, and has indeed continued since that point, the details of the testing program are less than clear from the record. The District Court found that, since 1963, the Beta and Wonderlic Tests have been used in 13 lines of progression, within eight departments. Albemarle contends that, at present, the tests are used in only eight lines of progression, within four departments.Four months before this case went to trial, Albemarle engaged an expert in industrial psychology to "validate" the job-relatedness of its testing program. He spent a half day at the plant and devised a "concurrent validation" study, which was conducted by plant officials, without his supervision. The expert then subjected the results to statistical analysis. The study dealt with 10 job groupings, selected from near the top of nine of the Page 422 U. S. 430 lines of progression. [Footnote 26] Jobs were grouped together solely by their proximity in the line of progression; no attempt was made to analyze jobs in terms of the particular skills they might require. All, or nearly all, employees in the selected groups participated in the study -- 105 employees in all, but only four Negroes. Within each job grouping, the study compared the test scores of each employee with an independent "ranking" of the employee, relative to each of his coworkers, made by two of the employee's supervisors. The supervisors, who did not know the test scores, were asked to"determine which ones they felt irrespective of the job that they were actually doing, but in their respective jobs, did a better job than the person they were rating against. . . . [Footnote 27]"For each job grouping, the expert computed the "Phi coefficient" of statistical correlation between the test scores and an average of the two supervisorial rankings. Consonant with professional conventions, the expert regarded as "statistically significant" any correlation that could have occurred by chance only five times, or fewer, in 100 trials. [Footnote 28] On the basis of these results, the District Court found that "[t]he personnel tests administered at the plant have undergone validation studies and have been proven to be job-related." Like the Court of Appeals, we are constrained to disagree.The EEOC has issued "Guidelines" for employers seeking to determine, through professional validation studies, Page 422 U. S. 431 whether their employment tests are job-related. 29 CFR pt. 1607. These Guidelines draw upon and make reference to professional standards of test validation established by the American Psychological Association. [Footnote 29] The EEOC Guidelines are not administrative "regulations" promulgated pursuant to formal procedures established by the Congress. But, as this Court has heretofore noted, they do constitute "[t]he administrative interpretation of the Act by the enforcing agency," and consequently they are "entitled to great deference." Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 433-434. See also Espinoza v. Farah Mfg. Co., 414 U. S. 86, 414 U. S. 94 (1973).The message of these Guidelines is the same as that of the Griggs case -- that discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be"predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or Jobs for which candidates are being evaluated."29 CFR § 1607.4(c).Measured against the Guidelines, Albemarle's validation study is materially defective in several respects:(1) Even if it had been otherwise adequate, the study would not have "validated" the Beta and Wonderlic test battery for all of the skilled lines of progression for which the two tests are, apparently, now required. The study showed significant correlations for the Beta Exam in only three of the eight lines. Though the Wonderlic Test's Form A and Form B are in theory identical and Page 422 U. S. 432 interchangeable measures of verbal facility, significant correlations for one form but not for the other were obtained in four job groupings. In two job groupings, neither form showed a significant correlation. Within some of the lines of progression, one form was found acceptable for some job groupings but not for others. Even if the study were otherwise reliable, this odd patchwork of results would not entitle Albemarle to impose its testing program under the Guidelines. A test may be used in jobs other than those for which it has been professionally validated only if there are "no significant differences" between the studied and unstudied jobs. 29 CFR § 1607.4(c)(2). The study in this case involved no analysis of the attributes of, or the particular skills needed in, the studied job groups. There is accordingly no basis for concluding that "no significant differences" exist among the lines of progression, or among distinct job groupings within the studied lines of progression. Indeed, the study's checkered results appear to compel the opposite conclusion.(2) The study compared test scores with subjective supervisorial rankings. While they allow the use of supervisorial rankings in test validation, the Guidelines quite plainly contemplate that the rankings will be elicited with far more care than was demonstrated here. [Footnote 30] Page 422 U. S. 433 Albemarle's supervisors were asked to rank employees by a "standard" that was extremely vague and fatally open to divergent interpretations. As previously noted, each "job grouping" contained a number of different jobs, and the supervisors were asked, in each grouping, to"determine which ones [employees] they felt, irrespective of the job that they were actually doing, but in their respective jobs, did a better job than the person they were rating against. . . . [Footnote 31]"There is no way of knowing precisely what criteria of job performance the supervisors were considering, whether each of the supervisors was considering the same criteria or whether, indeed, any of the supervisors actually applied a focused and stable body of criteria of any kind. [Footnote 32] There is, in short, simply no way to determine whether the criteria actually considered were sufficiently related to the Company's legitimate interest in job-specific ability to justify a testing system with a racially discriminatory impact.(3) The Company's study focused, in most cases, on job groups near the top of the various lines of progression. In Griggs v. Duke Power Co., supra, the Court Page 422 U. S. 434 left open"the question whether testing requirements that take into account capability for the next succeeding position or related future promotion might be utilized upon a showing that such long-range requirements fulfill a genuine business need."401 U.S. at 401 U. S. 432. The Guidelines take a sensible approach to this issue, and we now endorse it:"If job progression structures and seniority provisions are so established that new employees will probably, within a reasonable period of time and in a great majority of cases, progress to a higher level, it may be considered that candidates are being evaluated for jobs at that higher level. However, where job progression is not so nearly automatic, or the time span is such that higher level jobs or employees' potential may be expected to change in significant ways, it shall be considered that candidates are being evaluated for a job at or near the entry level."29 CFR § 1607.4(c)(1). The fact that the best of those employees working near the top of a line of progression score well on a test does not necessarily mean that that test, or some particular cutoff score on the test, is a permissible measure of the minimal qualifications of new workers entering lower level jobs. In drawing any such conclusion, detailed consideration must be given to the normal speed of promotion, to the efficacy of on-the-job training in the scheme of promotion, and to the possible use of testing as a promotion device, rather than as a screen for entry into low-level jobs. The District Court made no findings on these issues. The issues take on special importance in a case, such as this one, where incumbent employees are permitted to work at even high-level jobs without passing the company's test battery. See 29 CFR § 1607.11. Page 422 U. S. 435(4) Albemarle's validation study dealt only with job-experienced, white workers; but the tests themselves are given to new job applicants, who are younger, largely inexperienced, and in many instances nonwhite. The APA Standards state that it is "essential" that"[t]he validity of a test should be determined on subjects who are at the age or in the same educational or vocational situation as the persons for whom the test is recommended in practice."� C 5.4. The EEOC Guidelines likewise provide that "[d]ata must be generated and results separately reported for minority and nonminority groups wherever technically feasible." 29 CFR § 1607.5(b)(5). In the present case, such "differential validation" as to racial groups was very likely not "feasible," because years of discrimination at the plant have insured that nearly all of the upper level employees are white. But there has been no clear showing that differential validation was not feasible for lower level jobs. More importantly, the Guidelines provide:"If it is not technically feasible to include minority employees in validation studies conducted on the present workforce, the conduct of a validation study without minority candidates does not relieve any person of his subsequent obligation for validation when inclusion of minority candidates becomes technically feasible."29 CFR § 1607.5(b)(1).". . . [E]vidence of satisfactory validity based on other groups will be regarded as only provisional compliance with these guidelines pending separate validation of the test for the minority group in question."29 CFR § 1607.5(b)(5).For all these reasons, we agree with the Court of Appeals that the District Court erred in concluding that Page 422 U. S. 436 Albemarle had proved the job-relatedness of its testing program and that the respondents were consequently not entitled to equitable relief. The outright reversal by the Court of Appeals implied that an injunction should immediately issue against all use of testing at the plant. Because of the particular circumstances here, however, it appears that the more prudent course is to leave to the District Court the precise fashioning of the necessary relief in the first instance. During the appellate stages of this litigation, the plant has apparently been amending its departmental organization and the use made of its tests. The appropriate standard of proof for job-relatedness has not been clarified until today. Similarly, the respondents have not until today been specifically apprised of their opportunity to present evidence that even validated tests might be a "pretext" for discrimination in light of alternative selection procedures available to the Company. We also note that the Guidelines authorize provisional use of tests, pending new validation efforts, in certain very limited circumstances. 29 CFR § 1607.9. Whether such circumstances now obtain is a matter best decided, in the first instance, by the District Court. That court will be free to take such new evidence, and to exercise such control of the Company's use and validation of employee selection procedures, as are warranted by the circumstances and by the controlling law.Accordingly, the judgment is vacated, and these cases are remanded to the District Court for proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtAlbemarle Paper Co. v. Moody, 422 U.S. 405 (1975)Albemarle Paper Co. v. MoodyNo. 74-389Argued April 14, 1975Decided June 25, 1975*422 U.S. 405SyllabusRespondents, a certified class of present and former Negro employees, brought this action against petitioners, their employer, Albemarle Paper Co., and the employees' union, seeking injunctive relief against "any policy, practice, custom or usage" at the plant violative of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, and, after several years of discovery, moved to add a class backpay demand. At the trial, the major issues were the plant's seniority system, its program of employment testing, and backpay. The District Court found that, following a reorganization under a new collective bargaining agreement, the Negro employees had been "locked' in the lower paying job classifications," and ordered petitioners to implement a system of plantwide seniority. The court refused, however, to order backpay for losses sustained by the plaintiff class under the discriminatory system, on the grounds that (1) Albemarle's breach of Title VII was found not to have been in "bad faith," and (2) respondents, who had initially disclaimed interest in backpay, had delayed making their backpay claim until five years after the complaint was filed, thereby prejudicing petitioners. The court also refused to enjoin or limit Albemarle's testing program, which respondents had contended had a disproportionate adverse impact on blacks and was not shown to be related to job performance, the court concluding that "personnel tests administered at the plant have undergone validation studies and have been proven to be job-related." Respondents appealed on the backpay and pre-employment tests issues. The Court of Appeals reversed the District Court's judgment.Held:1. Given a finding of unlawful discrimination, backpay should be denied only for reasons that, if applied generally, would not frustrate the central statutory purposes manifested by Congress in enacting Title VII of eradicating discrimination throughout the Page 422 U. S. 406 economy and making persons whole for injuries suffered through past discrimination. Pp. 422 U. S. 413-422.2. The absence of bad faith is not a sufficient reason for denying backpay, Title VII not being concerned with the employer's "good intent or absence of discriminatory intent," for "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation," Griggs v. Duke Power Co., 401 U. S. 424, 401 U. S. 432. Pp. 422 U. S. 422-423.3. Whether respondents' tardiness and inconsistency in making their backpay demand were excusable and whether they actually prejudiced petitioners are matters that will be open to review by the Court of Appeals if the District Court, on remand, decides again to decline a backpay award. Pp. 422 U. S. 423-425.4. As is clear from Griggs, supra, and the Equal Employment Opportunity Commission's Guidelines for employers seeking to determine through professional validation studies whether employment tests are job-related, such tests are impermissible unless shown, by professionally acceptable methods, to be"predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated."Measured against that standard, Albemarle's validation study is materially defective in that (1) it would not, because of the odd patchwork of results from its application, have "validated" the two general ability tests used by Albemarle for all the skilled lines of progression for which the two tests are, apparently, now required; (2) it compared test scores with subjective supervisorial rankings, affording no means of knowing what job performance criteria the supervisors were considering; (3) it focused mostly on job groups near the top of various lines of progression, but the fact that the best of those employees working near the top of a line of progression score well on a test does not necessarily mean that the test permissibly measures the qualifications of new workers entering lower level jobs; and (4) it dealt only with job-experienced, white workers, but the tests themselves are given to new job applicants, who are younger, largely inexperienced, and in many instances nonwhite. Pp. 422 U. S. 425-435.5. In view of the facts that, during the appellate stages of this litigation, Albemarle has apparently been amending its departmental organization and the use made of its tests; that issues of standards of proof for job-relatedness and of evidentiary procedures involving validation tests have not until now, been clarified; Page 422 U. S. 407 and that provisional use of tests pending new validation effort may be authorized, the District Court, on remand, should initially fashion the necessary relief. P. 422 U. S. 436.474 F.2d 134, vacated and remanded.STEWART, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, WHITE, MARSHALL, and REHNQUIST, JJ., joined. MARSHALL, J., post, p. 422 U. S. 440, and REHNQUIST, J., post, p. 422 U. S. 441, filed concurring opinions. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 422 U. S. 447. BURGER, C.J., filed an opinion concurring in part and dissenting in part, post, p. 422 U. S. 449. POWELL, J., took no part in the consideration or decision of the cases. Page 422 U. S. 408

1988_87-1945

JUSTICE WHITE delivered the opinion of the Court.The Illinois Unemployment Insurance Act provides that"An individual shall be ineligible for benefits if he has failed, without good cause, either to apply for available, suitable work when so directed . . . or to accept suitable work when offered him. . . ."Ill.Rev.Stat., ch. 48, � 433 (1986). In April, 1984, William Frazee refused a temporary retail position offered him by Kelly Services because the job would have required him to work on Sunday. Frazee told Kelly that, as a Christian, he could not work on "the Lord's day." Frazee then applied to the Illinois Department of Employment Security for unemployment benefits, claiming that there was good cause for his refusal to work on Sunday. His application was denied. Frazee appealed the denial of benefits to the Department of Employment Security's Board of Review, which also denied his claim. The Board of Review stated:"When a refusal of work is based on religious convictions, the refusal must be based upon some tenets or dogma accepted by the individual of some church, sect, or denomination, and such a refusal based solely on an individual's personal belief is personal and noncompelling, and does not render the work unsuitable "Page 489 U. S. 831App. 18-19. The Board of Review concluded that Frazee had refused an offer of suitable work without good cause. The Circuit Court of the Tenth Judicial Circuit of Illinois, Peoria County, affirmed, finding that the agency's decision was "not contrary to law nor against the manifest weight of the evidence," thereby rejecting Frazee's claim based on the Free Exercise Clause of the First Amendment. Id. at 23.Frazee's free exercise claim was again rejected by the Appellate Court of Illinois, Third District. 159 Ill.App.3d 474, 512 N.E.2d 789 (1987). The court characterized Frazee's refusal to work as resting on his "personal professed religious belief," and made it clear that it did "not question the sincerity of the plaintiff," id. at 475, 477, 512 N.E.2d at 790, 791. It then engaged in a historical discussion of religious prohibitions against work on the Sabbath and, in particular, on Sunday. Nonetheless, the court distinguished Sherbert v. Verner, 374 U. S. 398 (1963); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); and Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U. S. 136 (1987), from the facts of Frazee's case. Unlike the claimants in Sherbert, Thomas, and Hobbie, Frazee was not a member of an established religious sect or church, nor did he claim that his refusal to work resulted from a "tenet, belief or teaching of an established religious body." 159 Ill.App.3d at 477, 512 N.E.2d at 791. To the Illinois court, Frazee's position that he was "a Christian," and, as such, felt it wrong to work on Sunday, was not enough. For a Free Exercise Clause claim to succeed, said the Illinois Appellate Court,"the injunction against Sunday labor must be found in a tenet or dogma of an established religious sect. [Frazee] does not profess to be a member of any such sect."Id. at 478-479, 512 N.E.2d at 792. The Illinois Supreme Court denied Frazee leave to appeal.The mandatory appellate jurisdiction of this Court was invoked under 28 U.S.C. § 1257(2), since the state court Page 489 U. S. 832 rejected a challenge to the constitutionality of Illinois' statutory "good cause" requirement as applied in this case. We noted probable jurisdiction, 488 U.S. 814 (1988), and now reverse.We have had more than one occasion before today to consider denials of unemployment compensation benefits to those who have refused work on the basis of their religious beliefs. In Sherbert v. Verner, supra, at 410, the Court held that a State could not"constitutionally apply the eligibility provisions [of its unemployment compensation program] so as to constrain a worker to abandon his religious convictions respecting the day of rest."Thomas v. Review Bd. of Indiana Employment Security Div., supra, also held that the State's refusal to award unemployment compensation benefits to one who terminated his job because his religious beliefs forbade participation in the production of armaments violated the First Amendment right to free exercise. Just two years ago, in Hobbie v. Unemployment Appeals Comm'n of Florida, supra, Florida's denial of unemployment compensation benefits to an employee discharged for her refusal to work on her Sabbath because of religious convictions adopted subsequent to employment was also declared to be a violation of the Free Exercise Clause. In each of these cases, the appellant was "forced to choose between fidelity to religious belief and . . . employment," id. at 144, and we found"the forfeiture of unemployment benefits for choosing the former over the latter brings unlawful coercion to bear on the employee's choice,"ibid. In each of these cases, we concluded that the denial of unemployment compensation benefits violated the Free Exercise Clause of the First Amendment of the Constitution, as applied to the States through the Fourteenth Amendment.It is true, as the Illinois court noted, that each of the claimants in those cases was a member of a particular religious sect, but none of those decisions turned on that consideration or on any tenet of the sect involved that forbade the work the Page 489 U. S. 833 claimant refused to perform. Our judgments in those cases rested on the fact that each of the claimants had a sincere belief that religion required him or her to refrain from the work in question. Never did we suggest that, unless a claimant belongs to a sect that forbids what his job requires, his belief, however sincere, must be deemed a purely personal preference, rather than a religious belief. Indeed, in Thomas, there was disagreement among sect members as to whether their religion made it sinful to work in an armaments factory, but we considered this to be an irrelevant issue, and hence rejected the State's submission that, unless the religion involved formally forbade work on armaments, Thomas' belief did not qualify as a religious belief. Because Thomas unquestionably had a sincere belief that his religion prevented him from doing such work, he was entitled to invoke the protection of the Free Exercise Clause.There is no doubt that "[o]nly beliefs rooted in religion are protected by the Free Exercise Clause," Thomas, supra, at 450 U. S. 713. Purely secular views do not suffice. United States v. Seeger, 380 U. S. 163 (1965); Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 215-216 (1972). Nor do we underestimate the difficulty of distinguishing between religious and secular convictions and in determining whether a professed belief is sincerely held. States are clearly entitled to assure themselves that there is an ample predicate for invoking the Free Exercise Clause. We do not face problems about sincerity or about the religious nature of Frazee's convictions, however. The courts below did not question his sincerity, and the State concedes it. Tr. of Oral Arg. 35. Furthermore, the Board of Review characterized Frazee's views as "religious convictions," App. 18, and the Illinois Appellate Court referred to his refusal to work on Sunday as based on a "personal professed religious belief," 159 Ill.App.3d at 475, 512 N.E.2d at 790. [Footnote 1] Page 489 U. S. 834Frazee asserted that he was a Christian, but did not claim to be a member of a particular Christian sect. It is also true that there are assorted Christian denominations that do not profess to be compelled by their religion to refuse Sunday work, but this does not diminish Frazee's protection flowing from the Free Exercise Clause. Thomas settled that much. Undoubtedly, membership in an organized religious denomination, especially one with a specific tenet forbidding members to work on Sunday, would simplify the problem of identifying sincerely held religious beliefs, but we reject the notion that, to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization. Here, Frazee's refusal was based on a sincerely held religious belief. Under our cases, he was entitled to invoke First Amendment protection. [Footnote 2]The State does not appear to defend this aspect of the decision below. In its brief and at oral argument, the State conceded that the Free Exercise Clause does not demand adherence to a tenet or dogma of an established religious sect. Instead, the State proposes its own test for identifying a "religious" belief, asserts that Frazee has not met such a test, and asks that we affirm on this basis. We decline to address this submission, for, as the case comes to us, Frazee's conviction was recognized as religious, but found to be inadequate Page 489 U. S. 835 because it was not claimed to represent a tenet of a religious organization of which he was a member. That ground for decision was clearly erroneous.The State offers no justification for the burden that the denial of benefits places on Frazee's right to exercise his religion. The Illinois Appellate Court ascribed great significance to America's weekend way of life. The Illinois court asked:"What would Sunday be today if professional football, baseball, basketball, and tennis were barred. Today Sunday is not only a day for religion, but for recreation and labor. Today the supermarkets are open, service stations dispense fuel, utilities continue to serve the people and factories continue to belch smoke and tangible products,"concluding that, "[i]f all Americans were to abstain from working on Sunday, chaos would result." 159 Ill.App.3d at 478, 512 N.E.2d at 792. We are unpersuaded, however, that there will be a mass movement away from Sunday employ if William Frazee succeeds in his claim.As was the case in Thomas, where there was"no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create 'widespread unemployment,' or even to seriously affect unemployment,"450 U.S. at 450 U. S. 719, there is nothing before us in this case to suggest that Sunday shopping, or Sunday sporting, for that matter, will grind to a halt as a result of our decision today. And, as we have said in the past, there may exist state interests sufficiently compelling to override a legitimate claim to the free exercise of religion. No such interest has been presented here.The judgment of the Appellate Court of Illinois for the Third District is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtFrazee v. Ill. Dept. of Empl. Secur., 489 U.S. 829 (1989)Frazee v. Illinois Department of Employment SecurityNo. 87-1945Argued March 1, 1989Decided March 29, 1989489 U.S. 829SyllabusAppellant, who refused a temporary retail position because the job would have required him to work on Sunday in violation of his personal religious beliefs, applied for, and was denied, unemployment compensation benefits. The denial was affirmed by an administrative review board, an Illinois Circuit Court, and the State Appellate Court, which found that, since appellant was not a member of an established religious sect or church and did not claim that his refusal to work resulted from a tenet, belief, or teaching of an established religious body, his personal professed religious belief, although unquestionably sincere, was not good cause for his refusal to work on Sunday.Held: The denial of unemployment compensation benefits to appellant on the ground that his refusal to work was not based on tenets or dogma of an established religious sect violated the Free Exercise Clause of the First Amendment as applied to the States through the Fourteenth Amendment. Sherbert v. Verner, 374 U. S. 398, Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, and Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U. S. 136, rested on the fact that each of the claimants had a sincere belief that religion required him or her to refrain from the work in question, not on the consideration that each of them was a member of a particular religious sect or on any tenet of the sect forbidding such work. While membership in a sect would simplify the problem of identifying sincerely held beliefs, the notion that one must be responding to the commands of a particular religious organization to claim the protection of the Free Exercise Clause is rejected. The sincerity or religious nature of appellant's belief was not questioned by the courts below, and was conceded by the State, which offered no justification for the burden that the denial of benefits placed on appellant's right to exercise his religion. The fact that Sunday work has become a way of life does not constitute a state interest sufficiently compelling to override a legitimate free-exercise claim, since there is no evidence that there will be a mass movement away from Sunday employment if appellant succeeds on his claim. Pp. 489 U. S. 832-835.159 Ill.App.3d 474, 512 N.E.2d 789, reversed and remanded. Page 489 U. S. 830WHITE, J., delivered the opinion for a unanimous Court.

2001_01-651

90 JPMORGAN CHASE BANK v. TRAFFIC STREAM (BVI) INFRASTRUCTURE LTD.Jeffrey P. Minear 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 Kneedler, Michael Jay Singer, Wendy M. Keats, William Howard Taft IV, James G. Hergen, and John P. Schnitker.Craig J. Albert argued the cause for respondent. With him on the brief was Lauren K. Kluger. *JUSTICE SOUTER delivered the opinion of the Court.The question here is whether a corporation organized under the laws of the British Virgin Islands is a "citize[n] or subjec[t] of a foreign state" for the purposes of alienage diversity jurisdiction, 28 U. S. C. § 1332(a)(2). We hold that it is.IRespondent Traffic Stream (BVI) Infrastructure Ltd. is a corporation organized under the laws of the British Virgin Islands (BVI), an Overseas Territory of the United Kingdom.1 In 1998, petitioner Chase Manhattan Bank, now JPMorgan Chase Bank, agreed to finance some ventures Traffic Stream had organized to construct and operate toll roads in China, with the parties' contract to "be governed by and construed in accordance with the laws of the State of New York," App. 85a. Traffic Stream agreed to "submi[t] to the jurisdiction" of federal courts in Manhattan, and to "waiv[e] any immunity from [their] jurisdiction." Ibid.*Mark N. Bravin and Peter Buscemi filed a brief for the Government of the United Kingdom of Great Britain and Northern Ireland as amicus curiae urging reversal.1 In 1998, the Government of the United Kingdom announced that its " 'Dependent Territories' " would, from that point on, be known as "'Overseas Territories.' " Apparently the change of name implied nothing more. Lodging, Amended Brief for Government of United Kingdom of Great Britain and Northern Ireland as Amicus Curiae in No. 99-10385 (CA5), p. 7, n. 2 (available in Clerk of Court's case file).91Chase subsequently charged Traffic Stream with defaulting on its obligations. It sued in the United States District Court for the Southern District of New York, which found subject-matter jurisdiction under the alienage diversity statute, 28 U. S. C. § 1332(a)(2), and granted summary judgment to Chase. When Traffic Stream appealed, the United States Court of Appeals for the Second Circuit sua sponte raised the question whether Traffic Stream was a citizen or subject of a foreign state for the purposes of alienage diversity jurisdiction. The court relied on its precedent in Matimak Trading Co. v. Khalily, 118 F.3d 76 (1997), in answering that because Traffic Stream was a citizen of an Overseas Territory and not an independent foreign state, jurisdiction was lacking. 251 F.3d 334, 337 (2001). The judgment of the District Court was reversed, and the case ordered to be remanded with instructions to dismiss the complaint. Ibid. Chase was denied rehearing en bancoBecause the Second Circuit's decision conflicts with those of other Circuits, see Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 413 (CA3 1999); Koehler v. Dodwell, 152 F.3d 304, 308 (CA4 1998); Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1242-1243 (CA7 1990), and implicates serious issues of foreign relations, we granted certiorari, 534 U. S. 1074 (2001). We now reverse.IITitle 28 U. S. C. § 1332(a)(2) provides district courts with "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 ... and is between ... citizens of a State and citizens or subjects of a foreign state." A "corporation of a foreign State is, for purposes of jurisdiction in the courts of the United States, to be deemed, constructively, a citizen or subject of such State." Steamship Co. v. Tugman, 106 U. S. 118, 121 (1882). Cf. Restatement (Third) of Foreign Relations Law of the United States § 213 (1986) ("For purposes of international92law, a corporation has the nationality of the state under the laws of which the corporation is organized"). In spite of this general rule of corporate citizenship, this case presents two issues about the application of the statute to Traffic Stream: whether Traffic Stream has been incorporated under the laws of a "foreign state" given the BVI's status as an Overseas Territory, and whether the BVI's corporate citizens are "citizens or subjects" within the meaning of § 1332(a)(2).AThe argument that the status of the BVI renders the statute inapplicable begins by assuming that Traffic Stream, organized under BVI law, must be a citizen or subject of the BVI alone. Since the BVI is a British Overseas Territory, unrecognized by the United States Executive Branch as an independent foreign state, it is supposed to follow that for purposes of alienage jurisdiction Traffic Stream is not a citizen or subject of a "foreign state" within the meaning of § 1332(a)(2).Even on the assumption, however, that a foreign state must be diplomatically recognized by our own Government to qualify as such under the jurisdictional statute (an issue we need not decide here), we have never held that the requisite status as citizen or subject must be held directly from a formally recognized state, as distinct from such a state's legal dependency. On the contrary, a consideration of the relationships of the BVI and the recognized state of the United Kingdom convinces us that any such distinction would be entirely beside the point of the statute providing alienage jurisdiction.1The current BVI Constitution was established when the Crown of the United Kingdom, in the exercise of power granted by the West Indies Act, 1962, c. 19, § 5(1), issued the Virgin Islands (Constitution) Order 1976, SI 1976/2145. Under that order, the United Kingdom exercises pervasive93authority over the territory. The Constitution provides, for example, that the BVI Government shall include a Governor and Deputy Governor appointed by the Queen to "hold office during Her Majesty's pleasure," id., pt. II, § 3(1), an Executive Council mainly appointed by the Governor on the basis of the popular election for the Legislative Council, §§ 14-15, and a Legislature comprising the Queen and a Legislative Council of mainly popularly elected representatives, §§25-26.Bills take effect as laws only when approved by the royally appointed Governor or by the Queen acting through a Secretary of State, § 42. The Governor is instructed to withhold assent from any bill that may conflict with the laws of the United Kingdom or is "likely to prejudice the Royal prerogative." § 42(2)(b). The Queen, acting through a Secretary of State, has authority to annul any BVI statute, § 43(1), and "[t]here is reserved to Her Majesty full power to make laws for the peace, order and good government of the Virgin Islands," § 71. "[I]f the Legislative Council fails to pass ... a Bill or motion ... the Governor may, at any time that he thinks fit, ... declare that such Bill or motion shall have effect as if it had been passed .... " § 44.The Crown's representatives have not slept on their powers, which have recently been exercised to impose laws and international obligations upon the territory, as in the Caribbean Territories (Abolition of Death Penalty for Murder) Order 1991, and the Merchant Shipping (Salvage Convention) (Overseas Territories) Order 1997, the latter of which brought the BVI into compliance with the International Convention on Salvage, 1989. In a very practical sense, then, the statutes that permit incorporation in the BVI, see BVI Companies Act (CAP. 285); BVI International Business Companies Act (CAP. 291), are laws enacted in the exercise of the political authority of the United Kingdom, and it seems fair to regard a BVI company as a citizen or subject of this ultimate political authority. This view of the relationship94seems especially reasonable when such a corporation is engaged in an international transaction, since the United Kingdom acts on the BVI's behalf in the international arena. See 6 Halsbury, Laws of England ~ 983, p. 471 (4th ed. 1991) ("Her Majesty's government in the United Kingdom is internationally responsible for the external affairs of United Kingdom dependent territories"); see also United Nations Act, 1946, c. 45 (empowering the Crown to bring "His Majesty's dominions" into compliance with directives of the United Nations Security Council).2The Second Circuit nonetheless takes the position that the relationship between the United Kingdom and its territories is "too attenuated" for the United Kingdom to be viewed as a governing authority for purposes of the relationship assumed by § 1332(a)(2). Matimak Trading Co., 118 F. 3d, at 86. This, of course, depends upon the statute's objective.Both during and after the Revolution, state courts were notoriously frosty to British creditors trying to collect debts from American citizens, and state legislatures went so far as to hobble British debt collection by statute, despite the specific provision of the 1783 Treaty of Paris that creditors in the courts of either country would "meet with no lawful impediment" to debt collection. Definitive Treaty of Peace, United States-Great Britain, Art. IV, 8 Stat. 82. See Holt, "To Establish Justice": Politics, the Judiciary Act of 1789, and the Invention of the Federal Courts, 1989 Duke L. J. 1421, 1438-1449. Ultimately, the States' refusal to honor the treaty became serious enough to prompt protests by the British Secretary of State, particularly when irked by American demands for treaty compliance on the British side. See 31 Journals of the Continental Congress, 1774-1789, pp. 781-784 (J. Fitzpatrick ed. 1934).This penchant of the state courts to disrupt international relations and discourage foreign investment led directly to the alienage jurisdiction provided by Article III of the Con-95stitution. See U. S. Const., Art. III, § 2 (federal jurisdiction "extend[s] to ... Controversies ... between a State, or the Citizens thereof, and foreign States, Citizens or Subjects"). "[T]he proponents of the Constitution ... made it quite clear that the elimination or amelioration of difficulties with credit was the principal reason for having the alienage and diversity jurisdictions, and that it was one of the most important reasons for a federal judiciary." Holt, supra, at 1473. This is how James Wilson put it during the debates at the Pennsylvania ratification convention:"Let us suppose the case, that a wicked law is made in some one of the states, enabling a debtor to pay his creditor with the fourth, fifth, or sixth part of the real value of the debt, and this creditor, a foreigner, complains to his prince ... of the injustice that has been done him .... Bound by inclination, as well as duty, to redress the wrong his subject sustains ... [h]e must therefore apply to the United States; the United States must be accountable. 'My subject has received a flagrant injury: do me justice, or I will do myself justice.' If the United States are answerable for the injury, ought they not to possess the means of compelling the faulty state to repair it? They ought; and this is what is done here. For now, if complaint is made in consequence of such injustice, Congress can answer, 'Why did not your subject apply to the General Court ... ?'" 2 Debates on the Federal Constitution 493 (J. Elliot ed. 1876) (hereinafter Elliot's Debates).Wilson emphasized that in order to "extend our manufactures and our commerce" there would need to be a "proper security ... provided for the regular discharge of contracts. This security cannot be obtained, unless we give the power of deciding upon those contracts to the general government." Id., at 492. His concerns were echoed by James Madison:"We well know, sir, that foreigners cannot get justice done96them in these courts, and this has prevented many wealthy gentlemen from trading or residing among us." 3 id., at 583. Madison also remarked that alienage jurisdiction was necessary to "avoid controversies with foreign powers" so that a single State's courts would not "drag the whole community into war." Id., at 534; see also The Federalist No. 80, p. 536 (J. Cooke ed. 1961) (A. Hamilton) ("[A]n unjust sentence against a foreigner [may] be an aggression upon his sovereign" rendering alienage jurisdiction "essential to ... the security of the public tranquility").Thus, the First Congress granted federal courts the alienage jurisdiction authorized in the Constitution, even while general federal-question jurisdiction was withheld. See Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 78 (providing for jurisdiction where "an alien is a party" and more than $500 in controversy). The language of the statute was amended in 1875 to track Article III by replacing the word "aliens" with "citizens, or subjects," Act of Mar. 3, 1875, 18 Stat. 470, the phrase that remains today. Although there is no need here to decide whether the current drafting provides jurisdiction up to the constitutional hilt, cf. Tennessee v. Union & Planters' Bank, 152 U. S. 454 (1894) (despite similar language, federal-question jurisdiction under 28 U. S. C. § 1331 does not extend as far as Article III), there is no doubt that the similarity of § 1332(a)(2) to Article III bespeaks a shared purpose.The relationship between the BVI's powers over corporations and the sources of those powers in Crown and Parliament places the United Kingdom well within the range of concern addressed by Article III and § 1332(a)(2). The United Kingdom exercises ultimate authority over the BVI's statutory law, including its corporate law and the law of corporate charter, and it exercises responsibility for the BVI's external relations. These exercises of power and responsibility point to just the kind of relationship that the Framers believed would bind sovereigns "by inclination, as well as duty, to redress the wrong[s]" against their nationals, 2 EI-97liot's Debates 493 (J. Wilson). See J. Jones, British Nationality Law and Practice 288 (1947) ("It is the practice of His Majesty's Government in the United Kingdom to protect, as against foreign Powers, ... [c]orporations owing their existence to the law in force in the United Kingdom and colonies"). Any doubters may consult the United Kingdom's own filings in this matter and others comparable, which express apprehension that expulsion of corporations like Traffic Stream from federal courts would cloud investment opportunity and raise the sort of threat to "the security of the public tranquility" that the Framers hoped to avoid. See, e. g., Brief for Government of United Kingdom of Great Britain and Northern Ireland as Amicus Curiae; Diplomatic Note No. 13/2000 from British Embassy in Washington, D. C., to U. S. State Dept., Feb. 2, 2000, Lodging 29, p. 1 (available in Clerk of Court's case file); Diplomatic Note No. 90/2001 from the British Embassy in Washington, D. C., to the U. S. State Dept., Oct. 5, 2002, App. to Motion to File Brief as Amicus Curiae for Government of United Kingdom of Great Britain and Northern Ireland 1a.BTraffic Stream's alternative argument is that BVI corporations are not "citizens or subjects" of the United Kingdom. Traffic Stream begins with the old fiction that a corporation is just an association of shareholders, presumed to reside in the place of incorporation, see, e. g., Tugman, 106 U. S., at 120-121, with the result that, for jurisdictional purposes, a suit against the corporation should be understood as a suit against the shareholders, see id., at 121. Traffic Stream proceeds to read the British Nationality Act, 1981, as a declaration by the United Kingdom that BVI residents are not its citizens or subjects, but mere "nationals," without the rights and privileges of citizens or subjects, such as the right to travel freely within the United Kingdom. See 1. Macdonald & N. Blake, Macdonald's Immigration Law and Practice in the United Kingdom 130-131 (4th ed. 1995) (describing9898 JPMORGAN CHASE BANK v. TRAFFIC STREAM (BVI) INFRASTRUCTURE LTD.categories of United Kingdom citizenship).2 Traffic Stream insists that because it is legally nothing more than a collection of noncitizen individuals, the corporation itself cannot be treated as deserving of access to the courts of the United States under a statute that opens them to foreign citizens and subjects.The less important flaw in the argument is its reliance on the outdated legal construct of corporations as collections of shareholders linked by contract, see M. Horwitz, The Transformation of American Law 1870-1960, pp. 69-93 (1992), a view long since replaced by the conception of corporations as independent legal entities, see id., at 93-107.3 Thus, Traffic Stream's whole notion of corporate citizenship derived from natural persons is irrelevant to jurisdictional enquiry in the United States today.But the argument's more significant weakness is its failure to recognize that jurisdictional analysis under the law of the United States is not ultimately governed by the law of the United Kingdom, whatever that may be. While it is perfectly true that "every independent nation [has the inherent right] to determine for itself ... what classes of persons shall be entitled to its citizenship," United States v. Wong Kim Ark, 169 U. S. 649, 668 (1898), our jurisdictional concern here is with the meaning of "citizen" and "subject" as those2 Ironically, in passing the British Nationality Act, 1981, c. 61, § 36, the United Kingdom identified one goal as "reducing statelessness."3 Indeed, Congress itself rejected the earlier rule in 1958 when it provided that "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U. S. C. § 1332(c)(1). There has been raised some question as to whether § 1332(c) applies to foreign, as well as domestic, corporations, although those Circuits that have reached the issue are in agreement that § 1332(c) extends to alien corporations. See Danjaq, S. A. v. Pathe Communications Corp., 979 F.2d 772, 773-774 (CA9 1992); Vareka Investment, N. V. v. American Investment Properties, Inc., 724 F. 2d 907, 909 (CAll 1984); Jerguson v. Blue Dot Investment, Inc., 659 F.2d 31, 35 (CA5 1981). There is no need for us to weigh in on this point.99terms are used in § 1332(a)(2). In fact, we have no need even to decide whether Traffic Stream's reading of the British Nationality Act is wrong, as the United Kingdom says it is,4 but only whether the status Traffic Stream claims under the Nationality Act would so operate on the law of the United States as to disqualify it from being a citizen or subject under the domestic statute before us here. We think there is nothing disqualifying.Although the word "citizen" may imply (and in 1789 and 1875 may have implied) the enjoyment of certain basic rights and privileges, see Black's Law Dictionary 237 (7th ed. 1999) (defining "citizen" as "entitled to enjoy all its civil rights and protections" of a community), a "subject" is merely "[o]ne who owes allegiance to a sovereign and is governed by that sovereign's laws," id., at 1438. Thus, contrary to Traffic Stream's view, the text of § 1332(a)(2) has no room for the suggestion that members of a polity, under the authority of a sovereign, fail to qualify as "subjects" merely because they enjoy fewer rights than other members do. For good or ill, many societies afford greater rights to some of its members than others without any suggestion that the less favored ones have ceased to be "citizens or subjects." And although some persons, like resident aliens, may live within a foreign state without being treated under American law as members of that particular polity, cf. Wong Kim Ark, supra, at 660 (" 'children ... born in a place ... then occupied ... by conquest, are still aliens' "), Traffic Stream concedes that BVI citizens are at least "nationals" of the United Kingdom. See Brief for Respondent 25. Given the object of the alienage statute, as explained earlier, there is no serious question that "nationals" were meant to be amenable to the jurisdiction of the federal courts, leaving it immaterial for our purposes that the law of the United Kingdom may provide different rights of abode for individuals in the territories.4 See Brief for Government of the United Kingdom of Great Britain and Northern Ireland as Amicus Curiae 12-13.100100 JPMORGAN CHASE BANK v. TRAFFIC STREAM (BVI) INFRASTRUCTURE LTD.IIIBecause our opinion accords with the positions taken by the Governments of the United Kingdom, the BVI, and the United States, the case presents no issue of deference that may be due to the various interested governments. It is enough to hold that the United Kingdom's retention and exercise of authority over the BVI renders BVI citizens, both natural and juridic, "citizens or subjects" of the United Kingdom under 28 U. S. C. § 1332(a). We therefore reverse the judgment of the Court of Appeals.It is so ordered

OCTOBER TERM, 2001SyllabusJPMORGAN CHASE BANK v. TRAFFIC STREAM (BVI) INFRASTRUCTURE LTD.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITNo. 01-651. Argued April 17, 2002-Decided June 10,2002Respondent Traffic Stream (BVI) Infrastructure Ltd. is a corporation organized under the laws of the British Virgin Islands (BVI), an Overseas Territory of the United Kingdom. In 1998, petitioner, then known as Chase Manhattan Bank, agreed to finance some Traffic Stream ventures, with the contract to be governed by New York law and with Traffic Stream agreeing to submit to the jurisdiction of federal courts in Manhattan. Chase subsequently sued Traffic Stream for defaulting on its obligations. The District Court for the Southern District of New York found subject-matter jurisdiction under the alienage diversity statute, 28 U. S. C. § 1332(a)(2)-which gives district courts jurisdiction over civil actions where the controversy, inter alia, is "between citizens of a State and citizens or subjects of a foreign state"-and granted Chase summary judgment. In reversing, the Second Circuit found that, because Traffic Stream was a citizen of an Overseas Territory and not an independent foreign state, jurisdiction was lacking.Held: A corporation organized under the laws of the BVI is a "citize[n] or subjec[t] of a foreign state" for the purposes of alienage diversity jurisdiction. Pp. 91-100.(a) A corporation of a foreign state is deemed that state's subject for jurisdiction purposes. Steamship Co. v. Tugman, 106 U. S. 118, 121. Although Traffic Stream was organized under BVI law and the BVI is unrecognized by the United States Executive Branch as an independent foreign state, this Court has never held that the requisite status as citizen or subject must be held directly from a formally recognized state, as distinct from that state's legal dependency; and any such distinction would be entirely beside the point of the alienage jurisdiction statute. Pp.91-92.(b) The BVI Constitution was established by the Crown of the United Kingdom. The United Kingdom exercises pervasive authority over the BVI, e. g., the Queen may annul any BVI statute and make laws for the BVI. The Crown's representatives have imposed laws and international obligations on the BVI. In a practical sense, then, the statutes permitting incorporation in the BVI are enacted in the exercise of the United Kingdom's political authority, and it seems fair to regard a BVI89company as a citizen or subject of this ultimate political authority. Pp.92-94.(c) Whether, as the Second Circuit posits, the relationship between the United Kingdom and its territories is too attenuated for that state to be viewed as a governing authority for § 1332(a)(2) purposes depends upon the statute's objective. The state courts' penchant before and after the Revolution to disrupt international relations and discourage foreign investment led directly to the alienage jurisdiction provided by Article III of the Constitution. The First Congress granted federal courts such jurisdiction, and the statute was amended in 1875 to track Article Ill's language. The similarity of § 1332(a)(2) to Article III thus bespeaks a shared purpose. The relationship between the BVI's powers over corporations and the sources of those powers in Crown and Parliament places the United Kingdom well within the range of concern that Article III and § 1332(a)(2) address. It exercises ultimate authority over the BVI's statutory law and responsibility for the BVI's external relations. Pp. 94-97.(d) Two flaws defeat Traffic Stream's alternative argument that, because the United Kingdom does not recognize BVI residents as citizens or subjects, and because corporations are legally nothing more than a collection of shareholders residing in the corporation's jurisdiction, Traffic Stream is not a citizen or subject under the alienage diversity statute. First, its outdated notion that corporate citizenship derives from natural persons has long since been replaced by the conception of corporations as independent legal entities. Second, it fails to recognize that jurisdictional analysis under United States law is not governed by United Kingdom law. Traffic Stream's status under United Kingdom law does not disqualify it from being a citizen or subject under the domestic statute at issue. Section 1332(a)(2) has no room for the suggestion that members of a polity, under a sovereign's authority, do not qualify as "subjects" merely because they enjoy fewer rights than other members do. Because Traffic Stream concedes that BVI citizens are "nationals" of the United Kingdom, it is immaterial that United Kingdom law may provide different rights of abode for individuals in the territories. Pp.97-99.251 F.3d 334, reversed.SOUTER, J., delivered the opinion for a unanimous Court.Sarah L. Reid argued the cause for petitioner. With her on the briefs were Joseph N. Froehlich and Edward H. Tillinghast III.90Full Text of Opinion

1958_285

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The principal question presented in this case is whether, in an action under the Suits in Admiralty Act, 41 Stat. 525, as amended, 46 U.S.C. § 741 et seq., the United States may defend by pleading against the libelant a claim arising out of an unrelated transaction.In 1953, the S.S. Steelworker, a ship belonging to the respondent, Isthmian Steamship Company ("Isthmian"), carried certain cargo for the United States. Isthmian submitted a bill of $116,511.44 for this service. The United States paid $1,307.68, but withheld the remaining $115,203.76. This sum was said to have been applied to an alleged indebtedness of Isthmian to the United States which was claimed to have arisen in 1946, when the United States, acting through the War Shipping Administration, chartered out to Isthmian eight vessels on a bareboat basis. Some disagreement arose over the amount of charter hire due, and the United States asserted that Isthmian owed $115,203.76 for additional charter hire for the period from May 1, 1946, to July 31, 1948. The S.S. Steelworker was not one of the boats involved in the 1946 transaction. Page 359 U. S. 316Isthmian filed a libel in the United States District Court for the Southern District of New York alleging that the United States owed Isthmian $116,511.44 for cargo transported on the S.S. Steelworker; that Isthmian had presented a bill for that amount; and that the United States had failed and refused to pay $115,203.76 which was due and payable. [Footnote 1] Isthmian made no reference whatsoever to the parties' dispute over additional charter hire for the 1946-1948 period.The United States filed an answer admitting that Isthmian had submitted a claim for $116,511.44; denying that the United States had not paid $115,203.76; and further alleging that this sum had been "paid" by application against an indebtedness of Isthmian to the United States for additional charter hire. Shortly before this answer was filed, the United States filed a cross-libel against Isthmian seeking recovery of the additional charter hire of $115,203.76. After filing the answer, the United States moved to consolidate its cross-libel with the original libel on the ground that the additional charter-hire claim was dispositive of both libels.Isthmian excepted to the answer of the United States on the ground that the defensive matter pleaded therein did not arise "out of the same contract, cause of action or transaction for which the libel was filed." Isthmian moved that the excepted matter be stricken, and asked "judgment on the pleadings." Page 359 U. S. 317The District Court held that the answer setting forth the withholding and application of the $115,203.76 did not set forth a defense of payment, but rather was a claim of setoff arising from a separate transaction. [Footnote 2] The District Court then held that setoffs arising from distinct transactions could not be asserted in admiralty and sustained Isthmian's exceptions. Since there was no longer any common issue, consolidation of the libel and cross-libel was denied and Isthmian was awarded a decree pro confesso. 134 F. Supp. 854. The Government's cross-libel is still pending.The District Court's final decree awarded interest at 4% per annum on $115,203.76 from the date of the filing of the libel to the day of decree. The District Court further ordered that interest at 4% should run from the date of the decree until it was paid. This second 4% was to be computed on a sum which included the basic recovery, the costs awarded, and the interest which had run from the date of the libel to the date of the decree.On appeal, the Court of Appeals for the Second Circuit affirmed. 255 F.2d 816. The Court of Appeals relied on the authority of a case decided at the same time as the instant case, Grace Line, Inc. v. United States, 255 F.2d 810, wherein it was held that withholding and applying did not constitute "payment," but rather setoff. Since the withholding and applying in the instant case did not arise out of the same transaction on which the libel was based, the Court of Appeals held it was not cognizable in admiralty. The award of interest was also upheld. We granted certiorari principally to consider the question posed at the outset of this opinion. 358 U.S. 813. Page 359 U. S. 318The Government presses a threshold argument which, if accepted, would obviate the need to reach the question posed at the outset of this opinion. While admitting the correctness of Isthmian's bill, the Government claims that the bill has been "paid," and argues that the true nature of the dispute between the parties concerns charter hire, despite the fact that Isthmian's libel does not mention the charter hire dispute. We agree with the courts below that the Government's defense is not properly one of payment.The Government relies upon the Act of March 3, 1817, 3 Stat. 366, which now appears in similar form as Section 305 of the Budget and Accounting Act of 1921, 42 Stat. 24, 31 U.S.C. § 71. This section provides that the General Accounting Office shall settle and adjust all claims and demands by or against the Government. This is said to mean that, when the General Accounting Office administratively sets one claim off against another, that is the same as payment. But recognizing the Government's longstanding power to set off is far different from finding that the Government's setoff is "payment" which enables the Government to plead in admiralty foreign and unrelated transactions. See United States v. Munsey Trust Co., 332 U. S. 234, 332 U. S. 239; McKnight v. United States, 13 Ct.Cl. 292, 306, affirmed 98 U. S. 179; Climatic Rainwear Co. v. United States, 115 Ct.Cl. 520, 88 F. Supp. 415, 418. In other situations, the claim of withholding and applying has traditionally been treated as setoff. Virginia-Carolina Chemical Co. v. Kirven, 215 U. S. 252, 215 U. S. 257-258; Merchants Heat & Light Co. v. James B. Clow & Sons, 204 U. S. 286, 204 U. S. 289-290 (a recoupment case); Scammon v. Kimball, 92 U. S. 362, 92 U. S. 367; United States v. Eckford, 6 Wall. 484. See also 3 Williston, Contracts (rev. ed. 1936), § 887E. In this context, "payment" connotes tender by the debtor with the intention to satisfy the debt Page 359 U. S. 319 coupled with its acceptance as satisfaction by the creditor. See Luckenbach v. W. J. McCahan Sugar Co., 248 U. S. 139, 248 U. S. 149; Bronson v. Rodes, 7 Wall. 229, 74 U. S. 250; Sheehy v. Mandeville, 6 Cranch 253, 10 U. S. 264; United States to Use of Par-Lock Appliers of New Jersey, Inc. v. J.A.J. Const. Co., 137 F.2d 584, 586.To consider withholding and applying the equivalent of "payment" would have strange consequences. In Grace Line, Inc. v. United States, supra, for example, the Government had a claim against the carrier which had become time-barred. The carrier performed some unrelated services for the United States and then brought suit to collect. The Government claimed that it had "paid" by withholding the money and applying it to the time-barred claim. Thus, the Government attempted to use its unique concept of "payment" to revive a totally unrelated time-barred claim.We can understand the Government's desire to litigate all of its disputes with Isthmian in one lawsuit, but that is no warrant for abandoning the traditional meaning of the defense of payment. [Footnote 3]We therefore reach the question posed at the outset. Section 3 of the Suits in Admiralty Act, 46 U.S.C. § 743, provides that suits against the United States under Page 359 U. S. 320 the Act shall"proceed and shall be heard and determined according to the principles of law and to the rules of practice obtaining in like cases between private parties."With this express command before us, we must ascertain whether admiralty practice permits private parties to defend by setting up claims arising out of separate and unrelated transactions between the parties.Traditionally, admiralty has narrowly circumscribed the filing of unrelated cross-libels and defenses. The first American case considering this problem appears to be Willard v. Dorr, 29 Fed.Cas. page 1277, No. 17,680 (1823), in which Justice Story, sitting as Circuit Justice, refused to permit the attempted setoff. Since that early holding, various reasons have been offered for refusal to entertain unrelated defenses: protection of the seaman's wage claims; [Footnote 4] preservation of relatively simple proceedings not affecting third-party rights; [Footnote 5] and the recognition that allowing cross-libels might deprive litigants of jury trials to which they would otherwise be entitled if the cross-libel were pressed in an independent proceeding. [Footnote 6] But, for whatever reason, the doctrine gained general acceptance. [Footnote 7] Page 359 U. S. 321This consistent pattern of the cases in admiralty on this point was reflected in the promulgation of Rule 54 of the Admiralty Rules by this Court at December Term, 1868, 7 Wall. v:"Whenever a cross-libel is filed upon any counterclaim arising out of the same cause of action for which the original libel was filed, the respondents in the cross-libel shall give security in the usual amount and form, to respond in damages as claimed in said cross-libel, unless the court, on cause shown, shall otherwise direct; and all proceedings upon the original libel shall be stayed until such security shall be given."That rule has remained in the Admiralty Rules [Footnote 8] ever since, with only slight change and now appears as Rule 50 in the following form, which still reflects the underlying settled state of the law:"Whenever a cross-libel is filed upon any counterclaim arising out of the same contract or cause of action for which the original libel was filed, and the respondent or claimant in the original suit shall have given security to respond in damages, the respondent in the cross-libel shall give security in the usual amount and form to respond in damages to the claims Page 359 U. S. 322 set forth in said cross-libel, unless the court, for cause shown, shall otherwise direct; and all proceedings on the original libel shall be stayed until such security be given, unless the court otherwise directs. [Footnote 9]"But the Government urges the Court in this particular case to apply the more flexible procedure utilized in civil cases in federal courts. [Footnote 10] The Government contends that none of the reasons for limited cross-libels suggested above has any application to the particular facts of this case, and that, moreover, the rule has become an anachronism, and is out of line with the practice in specific courts [Footnote 11] Page 359 U. S. 323 and with the general rules of practice for federal courts. [Footnote 12] But it should be observed that, where the procedure has been changed in this regard, it has been the result of legislation or rulemaking, and not the decisional process. [Footnote 13]The law on this point in admiralty has been settled beyond doubt in the lower courts for many years, and an Admiralty Rule of this Court recognizes this case law. We think that, if the law is to change, it should be by rulemaking or legislation, and not by decision.Whether the setoff and cross-libel procedure now operative in admiralty is anachronistic is not a matter best considered by this Court in a litigation without the benefits which normally accompany intelligent rulemaking -- including hearings and opportunities to submit data. In addition to this Court's responsibility for rulemaking, the Judicial Conference of the United States [Footnote 14] has been given certain responsibilities in this area by the Act of July 11, 1958, 72 Stat. 356:"The Conference shall also carry on a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use as prescribed by the Supreme Court for the other courts of the United States pursuant to law. Such changes in and additions to those rules as the Conference may deem desirable to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay shall be recommended Page 359 U. S. 324 by the Conference from time to time to the Supreme Court for its consideration and adoption, modification or rejection, in accordance with law."The result in this case does not cause irreparable loss to the United States, nor indeed require any expenditure of government funds prior to the complete disposition of all claims. The Government is authorized to withhold payment of Isthmian's judgment in this case to the extent the Government has claims outstanding against Isthmian. [Footnote 15] The only requirement is that the Government press the libel now pending in the District Court. In other situations where no suit is pending, the United States may have to commence a separate suit, rather than set up an unrelated defense in the original suit. This may be an inconvenience to the United States, but it must be remembered that Congress has expressly declared that, when sued under the Suits in Admiralty Act, the United States is to have its procedural rights determined and governed in the same manner as private parties.The Government also complains that the District Court improperly awarded compound interest. This resulted from the decree's direction that interest be computed at Page 359 U. S. 325 4% from the filing of the libel until the entry of the decree, and that interest run at 4% from decree until satisfaction with this latter interest to be computed upon the entire decree including the interest up to decree.Section 3 of the Suits in Admiralty Act, 46 U.S.C. § 743, provides:"A decree against the United States . . . may include costs of suit, and when the decree is for a money judgment, interest at the rate of 4 percentum per annum until satisfied, or at any higher rate which shall be stipulated in any contract upon which such decree shall be based. Interest shall run as ordered by the court. . . ."Congress' demonstrated concern with the problem of interest under the Suits in Admiralty Act indicates that it intended to cover these awards affirmatively, and not have them controlled by the general command that the suit "shall proceed and shall be heard and determined according to the principles of law" applicable to private parties. Section 3 provides for but one award of interest in the decree, and that award is limited to 4% until satisfaction. We find nothing in the rather ambiguous statute authorizing the accumulation of interest up to the decree and then a second independent award of interest which operates upon the first interest. Compound interest is not presumed to run against the United States. See Cherokee Nation v. United States, 270 U. S. 476, 270 U. S. 490.The judgment is affirmed as to entry of the decree pro confesso. The award of compound interest was improper, and the judgment is reversed and remanded for proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtUnited States v. Isthmian Steamship Co., 359 U.S. 314 (1959)United States v. Isthmian Steamship Co.No. 285Argued February 25, 1959Decided April 27, 1959359 U.S. 314Syllabus1. Under the Suits in Admiralty Act, as amended, 46 U.S.C. § 741 et seq., respondent filed a libel against the United States in a Federal District Court, alleging that the United States owed respondent $116,511.44 for cargo transported on one of respondent's ships; that respondent had presented a bill for that amount; and that the United States had failed and refused to pay $115,203.76 which was due and payable. The United States filed an answer admitting that respondent had submitted a claim for $116,511.44; denying that the United States had not paid $115,203.76; and further alleging that this sum had been "paid" by application against an indebtedness of respondent to the United States for additional charter hire. Respondent excepted on the ground that the defensive matter pleaded did not arise "out of the same contract, cause of action or transaction for which the libel was filed," and moved that the excepted matter be stricken, and that respondent be awarded "judgment on the pleadings." This motion was granted, and respondent was awarded a decree pro confesso.Held: this portion of the judgment is sustained. Pp. 359 U. S. 315-324.(a) The Government's defense is not properly one of "payment," but one of setoff arising out of a transaction unrelated to the cause of action on which the libel was filed. Pp. 359 U. S. 318-319.(b) In an action under the Suits in Admiralty Act, the United States may not defend by pleading against the libelant a claim arising out of a separate and unrelated transaction between the same parties. Pp. 359 U.S. 319-322.(c) If the law on this point in admiralty is to be changed, it should be by rulemaking or legislation, and not by decision. Pp. 359 U. S. 322-324.2. In the final decree, the District Court awarded respondent interest at 4% per annum from the filing of the libel until the entry of the decree, and at 4% from the entry of the decree until satisfaction, with this latter interest to be computed upon the entire decree, including the interest up to the date of the decree.Held: insofar Page 359 U. S. 315 as this judgment awarded compound interest from the date of the decree until the date of satisfaction, it was improper, and is reversed. Pp. 359 U. S. 324-325.255 F.2d 816 affirmed in part and reversed in part.

1988_88-515

JUSTICE WHITE delivered the opinion of the Court.The issue before us is the constitutionality of § 223(b) of the Communications Act of 1934. 47 U.S.C. § 223(b). The statute, as amended in 1988, imposes an outright ban on indecent as well as obscene interstate commercial telephone messages. The District Court upheld the prohibition against obscene interstate telephone communications for commercial purposes, but enjoined the enforcement of the statute insofar as it applied to indecent messages. We affirm the District Court in both respects.IIn 1983, Sable Communications, Inc., a Los Angeles-based affiliate of Carlin Communications, Inc., began offering sexually Page 492 U. S. 118 oriented prerecorded telephone messages [Footnote 1] (popularly known as "dial-a-porn") through the Pacific Bell telephone network. In order to provide the messages, Sable arranged with Pacific Bell to use special telephone lines, designed to handle large volumes of calls simultaneously. Those who called the adult message number were charged a special fee. The fee was collected by Pacific Bell and divided between the phone company and the message provider. Callers outside the Los Angeles metropolitan area could reach the number by means of a long-distance toll call to the Los Angeles area code.In 1988, Sable brought suit in District Court seeking declaratory and injunctive relief against enforcement of the recently amended § 223(b). The 1988 amendments to the statute imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone messages. Sable brought this action to enjoin the FCC and the Justice Department from initiating any criminal investigation or prosecution, civil action or administrative proceeding under the statute. Sable also sought a declaratory judgment, challenging the indecency and the obscenity provisions of the amended § 223(b) as unconstitutional, chiefly under the First and Fourteenth Amendments to the Constitution.The District Court found that a concrete controversy existed, and that Sable met the irreparable injury requirement for issuance of a preliminary injunction under Elrod v. Burns, 427 U. S. 347, 427 U. S. 373 (1976). 692 F. Supp. 1208, 1209 (CD Cal.1988). The District Court denied Sable's request for a preliminary injunction against enforcement of the statute's ban on obscene telephone messages, rejecting the argument that the statute was unconstitutional because it created a national standard of obscenity. The District Court, however, Page 492 U. S. 119 struck down the "indecent speech" provision of § 223(b), holding that, in this respect, the statute was overbroad and unconstitutional, and that this result was consistent with FCC v. Pacifica Foundation, 438 U. S. 726 (1978)."While the government unquestionably has a legitimate interest in, e.g., protecting children from exposure to indecent dial-a-porn messages, § 223(b) is not narrowly drawn to achieve any such purpose. Its flat-out ban of indecent speech is contrary to the First Amendment."692 F. Supp. at 1209. Therefore, the Court issued a preliminary injunction prohibiting enforcement of § 223(b) with respect to any communication alleged to be "indecent."We noted probable jurisdiction on Sable's appeal of the obscenity ruling (No. 88-515); we also noted probable jurisdiction on the federal parties' cross-appeal of the preliminary injunction holding the statute unconstitutional with respect to its ban on indecent speech (No. 88-525). 488 U.S. 1003 (1989). [Footnote 2]IIWhile dial-a-porn services are a creature of this decade, the medium, in its brief history, has been the subject of much litigation and the object of a series of attempts at regulation. [Footnote 3] Page 492 U. S. 120 The first litigation involving dial-a-porn was brought under 82 Stat. 112, 47 U.S.C. § 223, which proscribed knowingly "permitting a telephone under [one's] control" to be used to make "any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent." However, the FCC concluded in an administrative action that the existing law did not cover dial-a-porn. In re Application for Review of Complaint Filed by Peter F. Cohalan, FCC File No. E-83-14 (memorandum opinions and orders adopted May 13, 1983).In reaction to that FCC determination, Congress made its first effort explicitly to address "dial-a-porn" when it added a subsection 223(b) to the 1934 Communications Act. The provision, which was the predecessor to the amendment at issue in this case, pertained directly to sexually oriented commercial telephone messages, and sought to restrict the access of minors to dial-a-porn. The relevant provision of the Act, Federal Communications Commission Authorization Act of 1983, Pub. L. 98-214, § 8(b), 97 Stat. 1470, made it a crime to use telephone facilities to make "obscene or indecent" interstate telephone communications "for commercial purposes to any person under eighteen years of age or to any other person without that person's consent." 47 U.S.C. § 223(b)(1) (A) (1982 ed., Supp. IV). The statute criminalized commercial transmission of sexually oriented communications to minors, and required the FCC to promulgate regulations laying out the means by which dial-a-porn sponsors could screen out underaged callers. § 223(b)(2). The enactment provided that it would be a defense to prosecution that the defendant restricted access to adults only, in accordance with procedures established by the FCC. The statute did not criminalize Page 492 U. S. 121 sexually oriented messages to adults, whether the messages were obscene or indecent.The FCC initially promulgated regulations that would have established a defense to message providers operating only between the hours of 9 p.m. and 8 a.m. Eastern Time (time channeling) and to providers requiring payment by credit card (screening) before transmission of the dial-a-porn message. Restrictions on Obscene or Indecent Telephone Message Services, 47 CFR § 64.201 (1988). In Carlin Communications, Inc. v. FCC, 749 F.2d 113 (CA2 1984) (Carlin I), the Court of Appeals for the Second Circuit set aside the time channeling regulations and remanded to the FCC to examine other alternatives, concluding that the operating hours requirement was "both overinclusive and underinclusive" because it denied "access to adults between certain hours, but not to youths who can easily pick up a private or public telephone and call dial-a-porn during the remaining hours." Id. at 121. The Court of Appeals did not reach the constitutionality of the underlying legislation.In 1985, the FCC promulgated new regulations which continued to permit credit card payment as a defense to prosecution. Instead of time restrictions, however, the Commission added a defense based on use of access codes (user identification codes). Thus, it would be a defense to prosecution under § 223(b) if the defendant, before transmission of the message, restricted customer access by requiring either payment by credit card or authorization by access or identification code. 50 Fed.Reg. 42699, 42705 (1985). The regulations required each dial-a-porn vendor to develop an identification code data base and implementation scheme. Callers would be required to provide an access number for identification (or a credit card) before receiving the message. The access code would be received through the mail after the message provider reviewed the application and concluded, through a written age ascertainment procedure, that the applicant Page 492 U. S. 122 was at least 18 years of age. The FCC rejected a proposal for "exchange blocking" which would block or screen telephone numbers at the customer's premises or at the telephone company offices. In Carlin Communications, Inc. v. FCC, 787 F.2d 846 (CA2 1986) (Carlin II), the Court of Appeals set aside the new regulations because of the FCC's failure adequately to consider customer premises blocking. Again, the constitutionality of the underlying legislation was not addressed.The FCC then promulgated a third set of regulations, which again rejected customer premises blocking, but added to the prior defenses of credit card payment and access code use a third defense: message scrambling. 52 Fed.Reg. 17760 (1987). Under this system, providers would scramble the message, which would then be unintelligible without the use of a descrambler, the sale of which would be limited to adults. On January 15, 1988, in Carlin Communications, Inc. v. FCC, 837 F.2d 546 (Carlin III), cert. denied, 488 U.S. 924 (1988), the Court of Appeals for the Second Circuit held that the new regulations, which made access codes, along with credit card payments and scrambled messages, defenses to prosecution under § 223(b) for dial-a-porn providers, were supported by the evidence, had been properly arrived at, and were a "feasible and effective way to serve" the "compelling state interest" in protecting minors, 837 F.2d at 555; but the Court directed the FCC to reopen proceedings if a less restrictive technology became available. The Court of Appeals, however, this time reaching the constitutionality of the statute, invalidated § 223(b) insofar as it sought to apply to nonobscene speech. Id. at 560, 561.Thereafter, in April 1988, Congress amended § 223(b) of the Communications Act to prohibit indecent as well as obscene interstate commercial telephone communications directed to any person, regardless of age. The amended statute, which took effect on July 1, 1988, also eliminated the requirement that the FCC promulgate regulations for restricting Page 492 U. S. 123 access to minors, since a total ban was imposed on dial-a-porn, making it illegal for adults, as well as children, to have access to the sexually explicit messages, Pub. L. 100297, 102 Stat. 424. [Footnote 4] It was this version of the statute that was in effect when Sable commenced this action. [Footnote 5] Page 492 U. S. 124IIIIn the ruling at issue in No. 88-515, the District Court upheld § 223(b)'s prohibition of obscene telephone messages as constitutional. We agree with that judgment. In contrast to the prohibition on indecent communications, there is no constitutional barrier to the ban on obscene dial-a-porn recordings. We have repeatedly held that the protection of the First Amendment does not extend to obscene speech. See, e.g., Paris Adult Theatre I v. Slatorn, 413 U. S. 49, 413 U. S. 69 (1973). The cases before us today do not require us to decide what is obscene or what is indecent, but rather to determine whether Congress is empowered to prohibit transmission of obscene telephonic communications.In its facial challenge to the statute, Sable argues that the legislation creates an impermissible national standard of obscenity, and that it places message senders in a "double bind" by compelling them to tailor all their messages to the least tolerant community. [Footnote 6]We do not read § 223(b) as contravening the "contemporary community standards" requirement of Miller v. California, 413 U. S. 15 (1973). Section 223(b) no more establishes a "national standard" of obscenity than do federal statutes Page 492 U. S. 125 prohibiting the mailing of obscene materials, 18 U.S.C. § 1461, see Hamling v. United States, 418 U. S. 87 (1974), or the broadcasting of obscene messages, 18 U.S.C. § 1464. In United States v. Reidel, 402 U. S. 351 (1971), we said that Congress could prohibit the use of the mails for commercial distribution of materials properly classifiable as obscene, even though those materials were being distributed to willing adults who stated that they were adults. Similarly, we hold today that there is no constitutional stricture against Congress' prohibiting the interstate transmission of obscene commercial telephone recordings.We stated in United States v. 12 200-ft. Reels of Film, 413 U. S. 123 (1973), that the Miller standards, including the "contemporary community standards" formulation, apply to federal legislation. As we have said before, the fact that"distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity."Hamling v. United States, supra, at 418 U. S. 106.Furthermore, Sable is free to tailor its messages, on a selective basis, if it so chooses, to the communities it chooses to serve. While Sable may be forced to incur some costs in developing and implementing a system for screening the locale of incoming calls, there is no constitutional impediment to enacting a law which may impose such costs on a medium electing to provide these messages. Whether Sable chooses to hire operators to determine the source of the calls or engages with the telephone company to arrange for the screening and blocking of out-of-area calls or finds another means for providing messages compatible with community standards is a decision for the message provider to make. There is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards, even though they are not obscene in Page 492 U. S. 126 others. If Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages.IVIn No. 88-525, the District Court concluded that, while the Government has a legitimate interest in protecting children from exposure to indecent dial-a-porn messages, § 223(b) was not sufficiently narrowly drawn to serve that purpose, and thus violated the First Amendment. We agree.Sexual expression which is indecent but not obscene is protected by the First Amendment; and the federal parties do not submit that the sale of such materials to adults could be criminalized solely because they are indecent. The Government may, however, 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. We have recognized that there is a compelling interest in protecting the physical and psychological wellbeing of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. Ginsberg v. New York, 390 U. S. 629, 390 U. S. 639-640 (1968); New York v. Ferber, 458 U. S. 747, 458 U. S. 756-757 (1982). The Government may serve this legitimate interest, but, to withstand constitutional scrutiny,"it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. Mayor of Oradell, 425 U.S. at 425 U. S. 620; First National Ban.k of Boston v. Bellotti, 435 U. S. 765, 435 U. S. 786 (1978)."Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 444 U. S. 637 (1980). It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends.In Butler v. Michigan, 352 U. S. 380 (1957), a unanimous Court reversed a conviction under a statute which made it an offense to make available to the general public materials Page 492 U. S. 127 found to have a potentially harmful influence on minors. The Court found the law to be insufficiently tailored, since it denied adults their free speech rights by allowing them to read only what was acceptable for children. As Justice Frankfurter said in that case, "Surely this is to burn the house to roast the pig." Id. at 352 U. S. 383. In our judgment, this case, like Butler, presents us with "legislation not reasonably restricted to the evil with which it is said to deal." Ibid.In attempting to justify the complete ban and criminalization of the indecent commercial telephone communications with adults as well as minors, the federal parties rely on FCC v. Pacifica Foundation, 438 U. S. 726 (1978), a case in which the Court considered whether the FCC has the power to regulate a radio broadcast that is indecent but not obscene. In an emphatically narrow holding, the Pacifica Court concluded that special treatment of indecent broadcasting was justified.Pacifica is readily distinguishable from this case, most obviously because it did not involve a total ban on broadcasting indecent material. The FCC rule was not"'intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.'"Pacifica, supra, at 438 U. S. 733, quoting Pacifica Foundation, 59 F.C.C.2d 892 (1976). The issue of a total ban was not before the Court. 438 U.S. at 438 U. S. 750, n. 28.The Pacifica opinion also relied on the "unique" attributes of broadcasting, noting that broadcasting is "uniquely pervasive," can intrude on the privacy of the home without prior warning as to program content, and is "uniquely accessible to children, even those too young to read." Id. at 438 U. S. 748-749. The private commercial telephone communications at issue here are substantially different from the public radio broadcast at issue in Pacifica. In contrast to public displays, unsolicited mailings, and other means of expression which the recipient has no meaningful opportunity to avoid, the dial-it Page 492 U. S. 128 medium requires the listener to take affirmative steps to receive the communication. There is no "captive audience" problem here; callers will generally not be unwilling listeners. The context of dial-in services, where a caller seeks and is willing to pay for the communication, is manifestly different from a situation in which a listener does not want the received message. Placing a telephone call is not the same as turning on a radio and being taken by surprise by an indecent message. Unlike an unexpected outburst on a radio broadcast, the message received by one who places a call to a dial-a-porn service is not so invasive or surprising that it prevents an unwilling listener from avoiding exposure to it.The Court in Pacifica was careful "to emphasize the narrowness of [its] holding." Id. at 438 U. S. 750. As we did in Bolger v. Youngs Drug Products Corp., 463 U. S. 60 (1983), we distinguish Pacifica from the cases before us and reiterate that "the government may not reduce the adult population . . . to . . . only what is fit for children.'" 463 U.S. at 463 U. S. 73, quoting Butler v. Michigan, supra, at 352 U. S. 383.The federal parties nevertheless argue that the total ban on indecent commercial telephone communications is justified because nothing less could prevent children from gaining access to such messages. We find the argument quite unpersuasive. The FCC, after lengthy proceedings, determined that its credit card, access code, and scrambling rules were a satisfactory solution to the problem of keeping indecent dial-a-porn messages out of the reach of minors. The Court of Appeals, after careful consideration, agreed that these rules represented a "feasible and effective" way to serve the Government's compelling interest in protecting children. 837 F.2d at 555.The federal parties now insist that the rules would not be effective enough -- that enterprising youngsters could and would evade the rules and gain access to communications from which they should be shielded. There is no evidence in the record before us to that effect, nor could there be, since Page 492 U. S. 129 the FCC's implementation of § 223(b) prior to its 1988 amendment has never been tested over time. In this respect, the federal parties assert that, in amending § 223(b) in 1988, Congress expressed its view that there was not a sufficiently effective way to protect minors short of the total ban that it enacted. The federal parties claim that we must give deference to that judgment.To the extent that the federal parties suggest that we should defer to Congress' conclusion about an issue of constitutional law, our answer is that, while we do not ignore it, it is our task, in the end, to decide whether Congress has violated the Constitution. This is particularly true where the Legislature has concluded that its product does not violate the First Amendment. "Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake." Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 435 U. S. 843 (1978). The federal parties, however, also urge us to defer to the factual findings by Congress relevant to resolving the constitutional issue; they rely on Walters v. National Association of Radiation Survivors, 473 U. S. 305, 473 U. S. 331, n. 12 (1985), and Rostker v. Goldberg, 453 U. S. 57, 453 U. S. 72-73 (1981). Beyond the fact that whatever deference is due legislative findings would not foreclose our independent judgment of the facts bearing on an issue of constitutional law, our answer is that the congressional record contains no legislative findings that would justify us in concluding that there is no constitutionally acceptable less restrictive means, short of a total ban, to achieve the Government's interest in protecting minors.There is no doubt Congress enacted a total ban on both obscene and indecent telephone communications. But aside from conclusory statements during the debates by proponents of the bill, [Footnote 7] as well as similar assertions in hearings on Page 492 U. S. 130 a substantially identical bill the year before, H. R. 1786, [Footnote 8] that under the FCC regulations minors could still have access to dial-a-porn messages, the congressional record presented to us contains no evidence as to how effective or ineffective the FCC's most recent regulations were or might prove to be. It may well be that there is no fail-safe method of guaranteeing that never will a minor be able to access the dial-a-porn system. The bill that was enacted, however, was introduced on the floor; nor was there a committee report on the bill from which the language of the enacted bill was taken. No Congressman or Senator purported to present a considered judgment with respect to how often or to what extent minors could or would circumvent the rules and have access to dial-a-porn messages. On the other hand, in the hearings on H.R. 1786, the Committee heard testimony from the FCC and other witnesses that the FCC rules would be effective, and should be tried out in practice. [Footnote 9] Furthermore, at the conclusion of the hearing, the Chairman of the Subcommittee suggested consultation looking toward"drafting a piece of legislation that will pass constitutional muster, while at the same time providing for the practical relief which families and groups are looking for."Hearings at 235. The bill never emerged from Committee.For all we know from this record, the FCC's technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages. [Footnote 10] If this is the case, Page 492 U. S. 131 it seems to us that § 223(b) is not a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages. Under our precedents, § 223(b), in its present form, has the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear. It is another case of "burn[ing] up the house to roast the pig." Butler v. Michigan, 352 U.S. at 352 U. S. 383.Because the statute's denial of adult access to telephone messages which are indecent but not obscene far exceeds that which is necessary to limit the access of minors to such messages, we hold that the ban does not survive constitutional scrutiny.Accordingly, we affirm the judgment of the District Court in Nos. 88-515 and 88-525.It is so ordered

U.S. Supreme CourtSable Communications v. FCC, 492 U.S. 115 (1989)Sable Communications of California v.Federal Communications CommissionNo. 88-515Argued April 19, 1989Decided June 23, 1989*492 U.S. 115SyllabusSection 223(b) of the Communications Act of 1934, as amended, bans indecent as well as obscene interstate commercial telephone messages, commonly known as "dial-a-porn." Under its predecessor provision -- which sought to restrict minors' access to dial-a-porn -- the Federal Communications Commission (FCC), after lengthy court proceedings, had promulgated regulations laying out means by which dial-a-porn sponsors could screen out underaged callers. Sable Communications of California, which offers sexually oriented prerecorded telephone messages to callers both in and outside the Los Angeles metropolitan area, brought suit in the District Court, claiming that § 223(b)'s obscenity and indecency provisions were unconstitutional, chiefly under the First and Fourteenth Amendments, and seeking an injunction enjoining the FCC and the Justice Department from initiating any criminal investigation or prosecution, civil action, or administrative proceeding under the statute and a declaratory judgment. The court denied Sable's request for a preliminary injunction against enforcement of the ban on obscene telephone messages, rejecting the argument that the statute was unconstitutional because it created a national standard of obscenity. However, it issued the injunction with regard to the indecent speech provision, holding that the provision was overbroad and unconstitutional because it was not narrowly drawn to achieve the legitimate state interest of protecting children from exposure to indecent dial-a-porn messages.Held:1. Section 223(b) does not unconstitutionally prohibit the interstate transmission of obscene commercial telephone messages. The protection of the First Amendment does not extend to obscene speech. In addition, § 223(b) does not contravene the "contemporary community standards" requirement of Miller v. California, 413 U. S. 15, since it no more establishes a "national standard" of obscenity than do federal statutes prohibiting the mailing of obscene materials or the broadcasting of Page 492 U. S. 116 obscene messages. There is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others. Sable which has the burden of complying with the prohibition, is free to tailor its messages, on a selective basis, to the communities it chooses to serve. Pp. 492 U. S. 124-126.2. Section 223(b)'s ban on indecent telephone messages violates the First Amendment, since the statute's denial of adult access to such messages far exceeds that which is necessary to serve the compelling interest of preventing minors from being exposed to the messages. FCC v. Pacifica Foundation, 438 U. S. 726, an emphatically narrow ruling giving the FCC power to regulate an indecent radio broadcast, is readily distinguishable from this case. Pacifica, which did not involve a total ban on broadcasting indecent material, relied on the "unique" attributes of broadcasting, which can intrude on the privacy of the home without prior warning of content and which is uniquely accessible to children. In contrast, the dial-it medium requires the listener to take affirmative steps to receive the communications. The Government's argument that nothing less than a total ban could prevent children from gaining access to the messages and that this Court should defer to Congress' conclusions and factual findings to that effect is unpersuasive. There is no evidence to show that children would have evaded the rules that the FCC, after prolonged proceedings, had determined would keep the messages out of their reach. Moreover, deference to Congress' legislative findings cannot limit judicial inquiry where First Amendment rights are at stake. Here, the congressional record contains no legislative findings that would justify a conclusion that there are no constitutionally acceptable less restrictive means to achieve the Government's interest in protecting minors. Pp. 492 U. S. 126-131 .692 F. Supp. 1208, affirmed.WHITE, J., delivered the opinion for a unanimous Court with respect to Parts I, II, and IV, and the opinion of the Court with respect to Part III, in which REHNQUIST, C.J., and BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 492 U. S. 131. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined, post, p. 492 U. S. 133. Page 492 U. S. 117

1999_99-116

own operations are one of the reasons for maintaining the program. The Government has a legitimate and significant interest in prohibiting financial fraud or bribery being perpetrated upon Medicare providers:Such acts threaten the program's integrity and raise the risk participating organizations will lack the resources needed to provide the requisite level and quality of care. Pp. 681-682.168 F.3d 1273, affirmed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 682.Mark L. Horwitz argued the cause for petitioner. With him on the briefs were Glen J. loffredo, Jeffrey T. Green, and Kristin G. Koehler.Lisa Schiavo Blatt argued the cause for the United States.With her on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, and Deputy Solicitor General Dreeben. *JUSTICE KENNEDY delivered the opinion of the Court. The federal bribery statute prohibits defrauding organizations which "receiv[e], in anyone year period, benefits in excess of $10,000 under a Federal program." 18 U. S. C. § 666(b). We granted certiorari to determine whether the statute covers fraud perpetrated on organizations participating in the Medicare program. Upon consideration of the role and regulated status of hospitals as health care providers under the Medicare program, we hold they receive "benefits" within the meaning of the statute. We affirm petitioner's convictions.IPetitioner Jeffrey Allan Fischer was president and partial owner of Quality Medical Consultants, Inc. (QMC), a corpora-* Lisa Kemler filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.670tion which performed billing audits for health care organizations. In 1993 petitioner, on QMC's behalf, negotiated a $1.2 million loan from West Volusia Hospital Authority (WVHA), a municipal agency responsible for operating two hospitals located in West Volusia County, Florida. Both hospitals participate in the Medicare program, and in 1993 WVHA received between $10 and $15 million in Medicare funds.A February 1994 audit of WVHA's financial affairs raised questions about the QMC loan. An investigation revealed QMC used the loan proceeds to repay creditors and to raise the salaries of its five owner-employees, including petitioner. It was determined that petitioner had arranged for QMC to advance at least $100,000 to a private company owned by an individual who had assisted QMC in securing a letter of credit in connection with the WVHA loan. QMC, at petitioner's directive, also committed portions of the loan proceeds to speculative securities. These investments yielded losses of almost $400,000. The investigation further uncovered use of the loan proceeds to pay, through an intermediate transfer, a $10,000 kickback to WVHA's chief financial officer, the individual with whom petitioner had negotiated the loan in the first instance. QMC defaulted on its obligation to WVHA and filed for bankruptcy.In 1996 petitioner was indicted by a federal grand jury on 13 counts, including charges of defrauding an organization which receives benefits under a federal assistance program, 18 U. s. C. § 666(a)(1)(A), and of paying a kickback to one of its agents, § 666(a)(2). A jury convicted petitioner on all counts charged, and the District Court sentenced him to 65 months' imprisonment and a 3-year term of supervised release. Petitioner, in addition, was ordered to pay $1.2 million in restitution.On appeal petitioner argued that the Government failed to prove WVHA, as the organization affected by his wrongdoing, received "benefits in excess of $10,000 under a Federal program," as required by 18 U. s. C. § 666(b). Rejecting the671argument, the United States Court of Appeals for the Eleventh Circuit affirmed the convictions. 168 F.3d 1273 (1999). It held that funds received by an organization constitute "benefits" within the meaning of § 666(b) if the source of the funds is a federal program, like Medicare, which provides aid or assistance to participating organizations. Id., at 12761277. Entities receiving federal funding under ordinary commercial contracts, the court stated, fall outside the statute's coverage. Ibid. (citing and discussing United States v. Copeland, 143 F.3d 1439 (CAll 1998) (holding that federal funds received under a contract to construct military aircraft did not constitute "benefits" within the meaning of § 666(b))). The court added that its construction furthered "the statute's purpose of protecting from fraud, theft, and undue influence by bribery the money distributed to health care providers, and WVHA in particular, through the federal Medicare program and other similar federal assistance programs." 168 F. 3d, at 1277. It rejected the view that the Medicare program provides benefits only to its "targeted recipients," the qualifying patients. Id., at 1278 (disagreeing with United States v. LaHue, 998 F. Supp. 1182 (Kan. 1998), aff'd, 170 F.3d 1026 (CAlO 1999)).We granted certiorari, 528 U. S. 962 (1999), and we affirm.II AThe nature and purposes of the Medicare program give us essential instruction in resolving the present controversy. Established in 1965 as part of the Social Security Act, 42 U. S. C. § 1395 et seq. (1994 ed. and Supp. III), Medicare is a federally funded medical insurance program for the elderly and disabled. In fiscal 1997 some 38.8 million individuals were enrolled in the program, and over 6,100 hospitals were authorized to provide services to them. U. S. Dept. of Health and Human Services, Health Care Financing Administration, 1998 Data Compendium 45, 75 (Aug. 1998). Medi-672care expenditures for hospital services exceeded $123 billion in 1998, making the Federal Government the single largest source of funds for participating hospitals. See Cowen et al., National Health Expenditures, 1998, 21 Health Care Financing Review 165, 208 (Winter 1999) (Table 11). This amount constituted 32% of the hospitals' total receipts. Ibid.Providers of health care services, such as the two hospitals operated by WVHA, qualify to participate in the program upon satisfying a comprehensive series of statutory and regulatory requirements, including particular accreditation standards. Hospitals, for instance, must satisfy licensing standards, 42 CFR § 482.11 (1999); possess a governing body to "ensure that there is an effective, hospital-wide quality assurance program to evaluate the provision of patient care," § 482.21; and employ a "well organized" medical staff accountable on matters relating to "the quality of the medical care provided to patients," § 482.22(b). Medicare's implementing regulations also require hospitals, among many other standards, to maintain and provide 24-hour nursing services, § 482.23; complete medical record services, § 482.24; "pharmaceutical services that meet the needs of the patients," § 482.25; and organized dietary services staffed with qualified personnel, § 482.28. The regulations go further, requiring hospital facilities to "be constructed, arranged, and maintained to ensure the safety of the patient, and to provide facilities for diagnosis and treatment and for special hospital services appropriate to the needs of the community." § 482.41. Compliance with these standards provides the Government with assurance that participating providers possess the capacity to fulfill their statutory obligation of providing "medically necessary" services "of a quality which meets professionally recognized standards of health care." 42 U. S. C. § 1320c-5(a). Peer review organizations monitor providers' compliance with these and other obligations. § 1320c-3(a); 42 CFR § 466.71 (1999). Sanctions for non-673compliance include dismissal from the program. 42 U. s. C. § 1320c-5(b)(1).Medicare attains its objectives through an elaborate funding structure. Participating health care organizations, in exchange for rendering services, receive federal funds on a periodic basis. §§ 1395g, 1395l. The amounts received reflect the "reasonable cost" of services rendered, defined as "the costs necessary in the efficient delivery of needed health services to individuals covered [by the program]." § 1395x(v)(1)(A). Necessary costs are not limited to the immediate costs of an individual treatment procedure. Instead they are defined in broader terms: "Necessary and proper costs are costs that are appropriate and helpful in developing and maintaining the operation of patient care facilities and activities." 42 CFR § 413.9(b)(2) (1999). Allowable costs include amounts which enhance the organization's capacity to provide ongoing, quality services not only to eligible patients but also to the community at large. By way of example, amounts incurred for "certain educational programs for interns and residents, known as [graduate medical education] programs, are 'allowable cost[s]' for which a hospital (a provider) may receive reimbursement." Regions Hospital v. Shalala, 522 U. S. 448, 452 (1998) (citing 42 CFR § 413.85(a) (1996)); see also § 413.85(b) (1999); Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 507-508 (1994) (describing regulation of education programs). "These programs," the Medicare regulations explain, "contribute to the quality of patient care within an institution and are necessary to meet the community's needs for medical and paramedical personnel. ... [M]any communities have not assumed responsibility for financing these programs and it is necessary that support be provided by those purchasing healthcare. Until communities undertake to bear these costs, the program will participate appropriately in the support of these activities." 42 CFR § 413.85(c) (1999). Medicare also permits, indeed encourages, these providers to deposit the amounts of reim-674bursements received for depreciation costs and other cash into sinking funds called "funded depreciation accounts." § 413.134(e). Investment income earned on these funds does not operate to reduce a provider's interest expense, § 413.153(b)(2)(iii), creating incentives to maintain modern medical equipment and facilities.The Medicare regulations, furthermore, afford certain provider organizations "special treatment," intended to ensure the ongoing availability of medical services for qualifying patients. See 42 CFR pt. 412G (1999). Providers qualifying as "Medicare-dependent, small rural hospital[s]," for instance, are entitled to additional, "lump sum" payments to compensate for significant declines in demand for patient care. § 412.108. The additional funds enable a provider to "maintai[n] [its] necessary core staff and services" and to satisfy its "fixed (and semi-fixed) costs." §§ 412.108(d)(3)(A), (B). So too does the Medicare program authorize "special treatment" for, among other providers, "sole community hospitals," "renal transplantation centers," and "hospitals that serve a disproportionate share of low-income patients." See §§ 412.92,412.100,412.106. The subsidies assist providers in satisfying those financial obligations necessary to continue as going concerns in accordance with the program's requirements. See, e. g., § 412.92(d)(2).In the normal course Medicare disbursements occur on a periodic basis, often in advance of a provider's rendering services, 42 U. S. C. § 1395g(a); 42 CFR §§ 413.60, 413.64 (1999). The payment system serves to "protect providers' liquidity," Good Samaritan Hospital v. Shalala, 508 U. S. 402, 406 (1993), thereby assisting in the ongoing provision of services. 42 CFR § 413.5(b)(1) (1999) (requiring reimbursement method to "result in current payment so that institutions will not be disadvantaged, as they sometimes are under other arrangements, by having to put up money for the purchase of goods and services well before they receive reimbursement"); § 413.5(b)(6) (reimbursement system must oper-675ate under "recognition of the need of hospitals and other providers to keep pace with growing needs and to make improvements"). The program, then, establishes correlating and reinforcing incentives: The Government has an interest in making available a high level of quality of care for the elderly and disabled; and providers, because of their financial dependence upon the program, have incentives to achieve program goals. The nature of the program bears on the question of statutory coverage.BSection 666 of Title 18 of the United States Code prohibits acts of theft and fraud against organizations receiving funds under federal assistance programs. The statute in relevant part provides as follows:"(a) Whoever, if the circumstance described in subsection (b) of this section exists-"(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof-"(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that-"(i) is valued at $5,000 or more, and"(ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; or"(B) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more; or"(2) corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or re-676ward an agent of an organization or of a State, local or Indian tribal government, or any agency thereof, in connection with any business, transaction, or series of transactions of such organization, government, or agency involving anything of value of $5,000 or more; "shall be fined under this title, imprisoned not more than 10 years, or both."(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in anyone year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance."(c) This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business."Liability for the acts prohibited by subsection (a) is predicated upon a showing that the defrauded organization "receive[d], in anyone period, benefits in excess of $10,000 under a Federal program." § 666(b). Those benefits can be in the form of "a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance." Ibid. All agree Medicare is a federal assistance program, see 42 CFR § 400.200 (1999), and that WVHA, as the organization defrauded by petitioner's actions, received in excess of $10,000 in payments under the program. The sole point in contention is whether those payments constituted "benefits" within the meaning of subsection (b).Petitioner argues that the Medicare program provides benefits to the elderly and disabled but not to the health care organizations. Provider organizations, in petitioner's view, do no more than render services in exchange for compensation. Under petitioner's submission the Medicare program envisions a single beneficiary, the qualifying patient. The Government, in opposition, urges that a determination677whether an organization receives "benefits" within the meaning of § 666(b) turns on whether the Federal Government was the source of the payment. Funds received under a federal assistance program, the Government asserts, can be traced from federal coffers, often through an intermediary or carrier, to the health care provider. Under its view, the "federal-program source of the funds" satisfies the benefits definition. Brief for United States 11.We reject petitioner's reading of the statute but without endorsing the Government's broader position. We conclude Medicare payments are "benefits," as the term is used in its ordinary sense and as it is intended in the statute. The noun "benefit" means "something that guards, aids, or promotes well-being: advantage, good"; "useful aid"; "payment, gift [such as] financial help in time of sickness, old age, or unemployment"; or "a cash payment or service provided for under an annuity, pension plan, or insurance policy." Webster's Third New International Dictionary 204 (1971). These definitions support petitioner's assertion that qualifying patients receive benefits under the Medicare program. It is commonplace for individuals to refer to their retirement or health plans as "benefits." So it ought not to be disputed that the elderly and disabled rank as the primary beneficiaries of the Medicare program. See 42 U. S. C. §§ 1395c, 1395j; 42 CFR § 400.202 (1999) (defining "beneficiary" as the "person who is entitled to Medicare benefits"); Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 91 (1995) ("Under the Medicare reimbursement scheme ... participating hospitals furnish services to program beneficiaries and are reimbursed by the Secretary through fiscal intermediaries"); Good Samaritan Hospital, 508 U. S., at 404 (same).That one beneficiary of an assistance program can be identified does not foreclose the existence of others, however. In this respect petitioner's construction would give incomplete meaning to the term "benefits." Medicare operates with a purpose and design above and beyond point-of-sale patient678care, and it follows that the benefits of the program extend in a broader manner as well. The argument limiting the term "benefits" to the program's targeted or primary beneficiaries would exclude, for example, a Medicare intermediary (such as Blue Cross and Blue Shield), a result both parties disavow. For present purposes it cannot be disputed the providers themselves derive significant advantage by satisfying the participation standards imposed by the Government. These advantages constitute benefits within the meaning of the federal bribery statute, a statute we have described as "expansive," "both as to the [conduct] forbidden and the entities covered." Salinas v. United States, 522 U. S. 52, 56 (1997).Subsection (b) identifies several sources as providing benefits under a federal program-"a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance." 18 U. S. C. § 666(b). This language indicates that Congress viewed many federal assistance programs as providing benefits to participating organizations. Coupled with the broad substantive prohibitions of subsection (a), the language of subsection (b) reveals Congress' expansive, unambiguous intent to ensure the integrity of organizations participating in federal assistance programs.Subsection (c) of the statute bears on the analysis. The provision removes from the statute's coverage any "bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business." § 666(c). Petitioner argues that the subsection operates to exclude the payments in question because they are either "compensation" or "expenses paid or reimbursed," or some combination of the two, and that the payments are made in the "usual course of business." We disagree.The subsection provides that the specified sorts of payments are not ones to which the section applies. One inference from this formulation is that the described payments would have been benefits but for the subsection (c) exemp-679tion. We need not go so far. Even assuming the examples of subsection (c) bear upon the definition of benefits, statutory examples of nonapplicability do not necessarily give rise to the inference that absent the enumeration the statute would otherwise apply. To define all subsection (c) payments as exempted benefits would go well beyond the ordinary meaning of the word. On the other hand, the statute is not written to say: "The term 'benefits' does not include bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business." We must construe the term "benefits," then, in a manner consistent with Congress' intent not to reach the enumerated class of transactions. See S. Rep. No. 98-225, p. 370 (1984) ("[N]ot every Federal contract or disbursement of funds would be covered [under § 666]. For example, if a government agency lawfully purchases more than $10,000 in equipment from a supplier, it is not the intent of this section to make a theft of $5,000 or more from the supplier a Federal crime").We do not accept the view that the Medicare payments here in question are for the limited purposes of compensating providers or reimbursing them for ordinary course expenditures. The payments are made for significant and substantial reasons in addition to compensation or reimbursement, so that neither these terms nor the usual course of business conditions set forth in subsection (c) are met here. The payments in question have attributes and purposes well beyond those described in subsection (c). These attributes and purposes are consistent with the definition of "benefit." While the payments might have similarities to payments an insurer would remit to a hospital quite without regard to the Medicare program, the Government does not make the payment unless the hospital complies with its intricate regulatory scheme. The payments are made not simply to reimburse for treatment of qualifying patients but to assist the hospital in making available and maintaining a certain level and qual-680ity of medical care, all in the interest of both the hospital and the greater community.Here, as we have explained, the provider itself is the object of substantial Government regulation. Medicare is designed to the end that the Government receives not only reciprocal value from isolated transactions but also long-term advantages from the existence of a sound and effective health care system for the elderly and disabled. The Government enacted specific statutes and regulations to secure its own interests in promoting the well being and advantage of the health care provider, in addition to the patient who receives care. The health care provider is receiving a benefit in the conventional sense of the term, unlike the case of a contractor whom the Government does not regulate or assist for long-term objectives or for significant purposes beyond performance of an immediate transaction. Adequate payment and assistance to the health care provider is itself one of the objectives of the program. These purposes and effects suffice to make the payment a benefit within the meaning of the statute.The structure and operation of the Medicare program reveal a comprehensive federal assistance enterprise aimed at ensuring the availability of quality health care for the broader community. Participating health care organizations, as our above discussion shows, must satisfy a series of qualification and accreditation requirements, standards aimed in part at ensuring the provision of a certain quality of care. See 42 CFR pt. 482 (1999). By reimbursing participating providers for a wide range of costs and expenses, including medical treatment costs, overhead costs, and education costs, Medicare's reimbursement system furthers this objective. This scheme is structured to ensure that providers possess the capacity to render, on an ongoing basis, medical care to the program's qualifying patients. The structure, moreover, proves untenable petitioner's assertion that Congress has no interest in the financial stability of pro-681viders once services are rendered to patients. Payments are made in a manner calculated to maintain provider stability. § 413.5(b); Good Samaritan Hospital, 508 U. S., at 406. Incentives are given for long-term improvements, such as capital costs and education. §§ 413.85, 413.134(e), 413.153(b)(2)(iii). Subsidies, defined as "special treatment," are awarded to certain providers. Id., pt. 412G. In short, provider organizations playa vital role and maintain a high level of responsibility in carrying out the program's purposes. Medicare funds, in turn, provide benefits extending beyond isolated, point-of-sale treatment transactions. The funds health care organizations receive for participating in the Medicare program constitute "benefits" within the meaning of 18 U. S. C. § 666(b).Our discussion should not be taken to suggest that federal funds disbursed under an assistance program will result in coverage of all recipient fraud under § 666(b). Any receipt of federal funds can, at some level of generality, be characterized as a benefit. The statute does not employ this broad, almost limitless use of the term. Doing so would turn almost every act of fraud or bribery into a federal offense, upsetting the proper federal balance. To determine whether an organization participating in a federal assistance program receives "benefits," an examination must be undertaken of the program's structure, operation, and purpose. The inquiry should examine the conditions under which the organization receives the federal payments. The answer could depend, as it does here, on whether the recipient's own operations are one of the reasons for maintaining the program. Health care organizations participating in the Medicare program satisfy this standard.The Government has a legitimate and significant interest in prohibiting financial fraud or acts of bribery being perpetrated upon Medicare providers. Fraudulent acts threaten the program's integrity. They raise the risk participating organizations will lack the resources requisite to provide the682level and quality of care envisioned by the program. Cf. Salinas, 522 U. S., at 61 (stating that acceptance of bribes by an official of a jail housing federal prisoners pursuant to an agreement with the Government "was a threat to the integrity and proper operation of the federal program").Other cases may present questions requiring further examination and elaboration of the term "benefits." Here it suffices to hold that health care providers such as the one defrauded by petitioner receive benefits within the meaning of the statute. The judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1999SyllabusFISCHER v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUITNo. 99-116. Argued February 22, 2000-Decided May 15,2000Petitioner, while president and part owner of Quality Medical Consultants, Inc. (QMC), negotiated a $1.2 million loan to QMC from West Volusia Hospital Authority (WVHA), a municipal agency responsible for operating two Florida hospitals, both of which participate in the federal Medicare program. In 1993 WVHA received between $10 and $15 million in Medicare funds. After a 1994 audit of WVHA raised questions about the QMC loan, petitioner was indicted for violations of the federal bribery statute, including defrauding an organization which receives benefits under a federal assistance program, 18 U. S. C. § 666(a)(I)(A), and paying a kickback to one of its agents, § 666(a)(2). A jury convicted him on all counts, and the District Court sentenced him to imprisonment, imposed a term of supervised release, and ordered the payment of restitution. On appeal petitioner argued that the Government failed to prove WVHA, as the organization affected by his wrongdoing, received "benefits in excess of $10,000 under a Federal program," as required by § 666(b). In rejecting that argument and affirming the convictions, the Eleventh Circuit held that funds received by an organization constitute "benefits" within § 666's meaning if the source of the funds is a federal program, like Medicare, which provides aid or assistance to participating organizations.Held: Health care providers such as the one defrauded by petitioner receive "benefits" within the meaning of § 666(b). Pp. 671-682.(a) Medicare's nature and purposes provide essential instruction in resolving this controversy. Medicare is a federally funded medical insurance program for the elderly and disabled. The Federal Government is the single largest source of funds for hospitals participating in Medicare. Such providers qualify to participate upon satisfying a comprehensive series of statutory and regulatory requirements, including licensing, quality assurance, staffing, and other standards. Compliance with these standards provides the Government with assurance that participating providers possess the capacity to fulfill their statutory obligation of providing "medically necessary" services "of a quality which meets professionally recognized standards of health care." 42 U. S. C. § 1320c-5(a). Medicare attains its objectives through an elaborate funding structure designed not only to compensate providers for the reason-668Syllabusable cost of the services actually rendered to patients, but also to enhance health care organizations' capacity to provide ongoing, quality services to the community at large. In the normal course Medicare disbursements occur periodically, often in advance of a provider's rendering services, in order to protect providers' liquidity and thereby assist in the ongoing provision of such services. The program, then, establishes correlating and reinforcing incentives: The Government has an interest in making available a high level of quality of care for the elderly and disabled; and providers, because of their financial dependence upon the program, have incentives to achieve program goals. Pp. 671-675.(b) Medicare provider payments are "benefits," as that term is used in its ordinary sense and as it is intended in § 666(b). The Court rejects petitioner's argument that Medicare provides benefits only to the elderly and disabled, not to participating health care organizations. While standard definitions of the term "benefit" and provisions of Medicare support petitioner's assertion that qualifying patients rank as the program's primary beneficiaries, the fact that one beneficiary of an assistance program can be identified does not foreclose the existence of others. Section 666(b)'s language specifying that benefits can be in the form of "a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance," coupled with § 666(a)'s broad substantive prohibitions, reveals Congress' unambiguous intent to ensure the integrity of organizations participating in federal assistance programs. In removing from the statute's coverage any "bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business," § 666(c) does not exclude the payments here at issue from the meaning of "benefits" within § 666(b). Medicare payments are not simply compensation or reimbursement. The payments, in contrast, assist the hospital in making available and maintaining a certain level and quality of medical care in both its own interests and those of the greater community. The provider itself is the object of substantial Government regulation, and adequate payment and assistance to the provider is itself one of Medicare's objectives. Accordingly, the health care provider is receiving a benefit in the conventional sense of the term, unlike the case of a contractor whom the Government does not regulate or assist for long-term objectives or for purposes beyond performance of an immediate transaction. Pp. 675-681.(c) The Court does not suggest that federal funds disbursed under an assistance program will result in coverage of all recipient fraud under § 666(b). Adopting a broad, almost limitless use of the term "benefits" would upset the proper federal balance. The statutory inquiry should examine the conditions under which the federal payments are received. The answer could depend, as it does here, on whether the recipient's669Full Text of Opinion

1975_75-185

MR. JUSTICE BRENNAN delivered the opinion of the Court.The question to be decided in this case is whether federal labor policy preempts the authority of a state labor relations board to grant an employer covered by the National Labor Relations Act an order enjoining a union and its members from continuing to refuse to work overtime pursuant to a union policy to put economic pressure on the employer in negotiations for renewal of an expired collective bargaining agreement.A collective bargaining agreement between petitioner Lodge 76 (Union) and respondent Kearney & Trecker Page 427 U. S. 134 Corp. (employer) was terminated by the employer pursuant to the terms of the agreement on June 19, 1971. Good faith bargaining over the terms of a renewal agreement continued for over a year thereafter, finally resulting in the signing of a new agreement effective July 23, 1972. A particularly controverted issue during negotiations was the employer's demand that the provision of the expired agreement under which, as for the prior 17 years, the basic workday was seven and one-half hours, Monday through Friday, and the basic workweek was 37 1/2 hours, be replaced with a new provision providing a basic workday of eight hours and a basic workweek of 40 hours, and that the terms on which overtime rates of pay were payable be changed accordingly.A few days after the old agreement was terminated the employer unilaterally began to make changes in some conditions of employment provided in the expired contract, e.g., eliminating the checkoff of Union dues, eliminating the Union's office in the plant, and eliminating Union lost time. No immediate change was made in the basic workweek or workday, but in March, 1972, the employer announced that it would unilaterally implement, as of March 13, 1972, its proposal for a 40-hour week and eight-hour day. The Union response was a membership meeting on March 7 at which strike action was authorized and a resolution was adopted binding Union members to refuse to work any overtime, defined as work in excess of seven and one-half hours in any day or 37 1/2 hours in any week. Following the strike vote, the employer offered to "defer the implementation" of its workweek proposal if the Union would agree to call off the concerted refusal to work overtime. The Union, however, refused the offer and indicated its intent to continue the concerted ban on overtime. Thereafter, the employer did not make effective the proposed changes in the workday and workweek Page 427 U. S. 135 before the new agreement became effective on July 23, 1972. Although all but a very few employees complied with the Union's resolution against acceptance of overtime work during the negotiations, the employer did not discipline, or attempt to discipline, any employee for refusing to work overtime.Instead, while negotiations continued, the employer filed a charge with the National Labor Relations Board that the Union's resolution violated § 8(b)(3) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U.S.C. § 158(b)(3). The Regional Director dismissed the charge on the ground that the "policy prohibiting overtime work by its member employees . . . does not appear to be in violation of the Act," and therefore was not conduct cognizable by the Board under NLRB v. Insurance Agents, 361 U. S. 477 (1960). However, the employer also filed a complaint before the Wisconsin Employment Relations Commission charging that the refusal to work overtime constituted an unfair labor practice under state law. The Union filed a motion before the Commission to dismiss the complaint for want of "jurisdiction over the subject matter" in that jurisdiction over "the activity of the [Union] complained of [is] preempted by" the National Labor Relations Act. App. 11. The motion was denied and the Commission adopted the Conclusion of Law of its Examiner that"the concerted refusal to work overtime, is not an activity which is arguably protected under Section 7 or arguably prohibited under Section 8 of the National Labor Relations Act, as amended, and . . therefore, the . . . Commission is not preempted from asserting its jurisdiction to regulate said conduct."The Commission also adopted the further Conclusion of Law that the Union"by authorizing . . . the concerted refusal to work overtime . . . engaged in a concerted effort to interfere with production and . . . committed an unfair labor practice within the meaning Page 427 U. S. 136 of Section 111.06(2)(h). . . . [Footnote 1]"The Commission thereupon entered an order that the Union, inter alia, "[i]mmediately cease and desist from authorizing, encouraging or condoning any concerted refusal to accept overtime assignments. . . ." The Wisconsin Circuit Court affirmed and entered judgment enforcing the Commission's order. The Wisconsin Supreme Court affirmed the Circuit Court. 67 Wis.2d 13, 226 N.W.2d 203 (1975). We granted certiorari, 423 U.S. 890 (1975). We reverse.I"The national . . .Act . . . leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible."Garner v. Teamsters Union, 346 U. S. 485, 346 U. S. 488 (1953). Federal labor policy as reflected in the National Labor Relations Act, as amended, has been construed not to preclude the States from regulating aspects of labor relations that involve"conduct touch[ing] interests so deeply rooted in local feeling and responsibility that . . we could not infer that Congress had deprived the States of the power to act."San Diego Unions v. Garmon, 359 U. S. 236, 359 U. S. 244 (1959). Policing of actual or threatened violence to persons or destruction of property has been held most clearly a matter for the States. [Footnote 2] Page 427 U. S. 137 Similarly, the federal law governing labor relations does not withdraw "from the States . . . power to regulate where the activity regulated [is] a merely peripheral concern of the Labor Management Relations Act." Id. at 359 U. S. 243. [Footnote 3] Page 427 U. S. 138Cases that have held state authority to be preempted by federal law tend to fall into one of two categories: (1) those that reflect the concern that "one forum would enjoin, as illegal, conduct which the other forum would find legal" and (2) those that reflect the concern "that the [application of state law by] state courts would restrict the exercise of rights guaranteed by the Federal Acts." Automobile Workers v. Russell, 356 U. S. 634, 356 U. S. 644 (1958)."[I]n referring to decisions holding state laws preempted by the NLRA, care must be taken to distinguish preemption based on federal protection of the conduct in question . . . from that based predominantly on the primary jurisdiction of the National Labor Relations Board . . . although the two are often not easily separable."Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369, 394 U. S. 383 n.19 (1969). Each of these distinct aspects of labor law preemption has had its own history in our decisions, to which we now turn.We consider first preemption based predominantly on the primary jurisdiction of the Board. This line of preemption analysis was developed in San Diego Unions v. Garmon, supra, and its history was recently summarized in Motor Coach Employees v. Lockridge, 403 U. S. 274, 403 U. S. 290-291 (1971):"[V]arying approaches were taken by the Court in initially grappling with this preemption problem. Thus, for example, some early cases suggested the true distinction lay between judicial application of general common law, which was permissible, as opposed to state rules specifically designed to regulate Page 427 U. S. 139 labor relations, which were preempted. See, e.g., Automobile Workers v. Russell, 356 U. S. 634, 356 U. S. 645 (1958). Others made preemption turn on whether the States purported to apply a remedy not provided for by the federal scheme, e.g., Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 348 U. S. 479-480 (1955), while in still others the Court undertook a thorough scrutiny of the federal Act to ascertain whether the state courts had, in fact, arrived at conclusions inconsistent with its provisions, e.g., Automobile Workers v. Wisconsin Employment Relations Bd., 336 U. S. 245 (1949). . . . [N]one of these approaches proved satisfactory, however, and each was ultimately abandoned. It was, in short, experience -- not pure logic -- which initially taught that each of these methods sacrificed important federal interests in a uniform law of labor relations centrally administered by an expert agency without yielding anything in return by way of predictability or ease of judicial application.""The failure of alternative analyses and the interplay of the foregoing policy considerations, then, led this Court to hold in Garmon, 359 U.S. at 359 U. S. 244:"" When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by § 7 of the National Labor Relations Act, or constitute an unfair labor practice under § 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law."See also San Diego Unions v. Garmon, 359 U.S. at 359 U. S. 244-247; Lockridge, supra at 403 U. S. 286-290. Page 427 U. S. 140However, a second line of preemption analysis has been developed in cases focusing upon the crucial inquiry whether Congress intended that the conduct involved be unregulated because left "to be controlled by the free play of economic forces." NLRB v Nash-Finch Co., 404 U. S. 138, 404 U. S. 144 (1971). [Footnote 4] Concededly this inquiry was not made in 1949 in the so-called Briggs-Stratton case, Automobile Workers v. Wisconsin Emp. Rel. Board, 336 U. S. 245 (1949), the decision of this Court heavily relied upon by the court below in reaching its decision that state regulation of the conduct at issue is not preempted by national labor law. In Briggs-Stratton, the union, in order to bring pressure on the employer during negotiations, Page 427 U. S. 141 adopted a plan whereby union meetings were called at irregular times during working hours without advance notice to the employer or any notice as to whether or when the workers would return. In a proceeding under the Wisconsin Employment Peace Act, the Wisconsin Employment Relations Board issued an order forbidding the union and its members to engage in concerted efforts to interfere with production by those methods. This Court did not inquire whether Congress meant that such methods should be reserved to the union "to be controlled by the free play of economic forces." Rather, because these methods were "neither made a right under federal law nor a violation of it," the Court held that there "was no basis for denying to Wisconsin the power, in governing her internal affairs, to regulate" such conduct. Id. at 336 U. S. 265.However, the Briggs-Stratton holding that state power is not preempted as to peaceful conduct neither protected by § 7 nor prohibited by § 8 of the federal Act, a holding premised on the statement that "[t]his conduct is governable by the State or it is entirely ungoverned," 336 U.S. at 336 U. S. 254, was undercut by subsequent decisions of this Court. For the Court soon recognized that a particular activity might be "protected" by federal law not only when it fell within § 7, but also when it was an activity that Congress intended to be "unrestricted by any governmental power to regulate" because it was among the permissible"economic weapons in reserve, . . . actual exercise [of which] on occasion by the parties is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized."NLRB v. Insurance Agents, 361 U.S. at 361 U. S. 488-489 (emphasis added)."[T]he legislative purpose may . . . dictate that certain activity 'neither protected nor prohibited' be deemed privileged against state regulation."Hanna Mining Co. v. Marine Engineers, 382 U. S. 181, 382 U. S. 187 (1965). Page 427 U. S. 142IIInsurance Agents, supra, involved a charge of a refusal by the union to bargain in good faith in violation of § 8(b)(3) of the Act. The charge was based on union activities that occurred during good faith bargaining over the terms of a collective bargaining agreement. During the negotiations, the union directed concerted on-the-job activities by its members of a harassing nature designed to interfere with the conduct of the employer's business, for the avowed purpose of putting economic pressure on the employer to accede to the union's bargaining demands. The harassing activities, all peaceful, by the member insurance agents included refusal for a time to solicit new business, and refusal (after the writing of new business was resumed) to comply with the employer insurance company's reporting procedures; refusal to participate in a company campaign to solicit new business; reporting late at district offices the days the agents were scheduled to attend them; refusing to perform customary duties at the office, instead engaging there in "sit-in-mornings," "doing what comes naturally," and leaving at noon as a group; absenting themselves from special business conferences arranged by the company; picketing and distributing leaflets outside the various offices of the company on specified days and hours as directed by the union; distributing leaflets each day to policyholders and others and soliciting policyholders' signatures on petitions directed to the company; and presenting the signed policyholders' petitions to the company at its home office while simultaneously engaging in mass demonstrations there. 361 U.S. at 361 U. S. 480-481. We held that such tactics would not support a finding by the NLRB that the union had failed to bargain in good faith, as required by § 8(b)(3), and rejected the per se rule applied by the Board that use of "economically harassing activities" alone sufficed to prove a violation Page 427 U. S. 143 of that section. The Court assumed "that the activities in question here were not protected' under § 7 of the Act," 361 U.S. at 361 U. S. 483 n. 6, but held that the per se rule was beyond the authority of the NLRB to apply."The scope of § 8(b)(3) and the limitations on Board power which were the design of § 8(d) are exceeded, we hold, by inferring a lack of good faith not from any deficiencies of the union's performance at the bargaining table by reason of its attempted use of economic pressure, but solely and simply because tactics designed to exert economic pressure were employed during the course of the good faith negotiations. Thus, the Board, in the guise of determining good or bad faith in negotiations, could regulate what economic weapons a party might summon to its aid. And if the Board could regulate the choice of economic weapons that may be used as part of collective bargaining, it would be in a position to exercise considerable influence upon the substantive terms on which the parties contract. As the parties' own devices became more limited, the Government might have to enter even more directly into the negotiation of collective agreements. Our labor policy is not presently erected on a foundation of government control of the results of negotiations. See S.Rep. No. 105, 80th Cong., 1st Sess., p. 2. Nor does it contain a charter for the National Labor Relations Board to act at large in equalizing disparities of bargaining power between employer and union."Id. at 361 U. S. 490. We noted further that "Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions" and "the activities here involved have never been specifically outlawed by Congress." Id. at 361 U. S. 498. Accordingly, the Board's claim"to power . . . Page 427 U. S. 144 to distinguish among various economic pressure tactics and brand the ones at bar inconsistent with good faith collective bargaining,"id. at 361 U. S. 492, was simply inconsistent with the design of the federal scheme in which "the use of economic pressure by the parties to a labor dispute is . . . part and parcel of the process of collective bargaining." Id. at 361 U. S. 495.The Court had earlier recognized in preemption cases that Congress meant to leave some activities unregulated and to be controlled by the free play of economic forces. Garner v. Teamsters Union, in finding preempted state power to restrict peaceful recognitional picketing, said:"The detailed prescription of a procedure for restraint of specified types of picketing would seem to imply that other picketing is to be free of other methods and sources of restraint. For the policy of the national Labor Management Relations Act is not to condemn all picketing, but only that ascertained by its prescribed processes to fall within its prohibitions. Otherwise, it is implicit in the Act that the public interest is served by freedom of labor to use the weapon of picketing. For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits."346 U.S. at 346 U. S. 499-500. [Footnote 5] Moreover, San Diego Unions v. Garmon expressly recognized that"the Board may decide that an activity is neither protected nor prohibited, and thereby raise the Page 427 U. S. 145 question whether such activity may be regulated by the States."359 U.S. at 359 U. S. 245. [Footnote 6]It is true, however, that many decisions fleshing out the concept of activities "protected" because Congress meant them to be "unrestricted by any governmental power to regulate," Insurance Agents, 361 U.S. at 361 U. S. 488, involved review of per se NLRB rules applied in the regulation of the bargaining process. E.g., NLRB v. American National Ins. Co., 343 U. S. 395 (1952); NLRB v. Insurance Agents, supra; NLRB v. Drivers Local Union, 362 U. S. 274 (1960); NLRB v. Brown, 380 U. S. 278 (1965); American Ship Bldg. Co. v. NLRB, 380 U. S. 300 (1965); cf. NLRB v. Truck Driver Union, 353 U. S. 87 (1957); H. K. Porter Co. v. NLRB, 397 U. S. 99 (1970); Florida Power Light v. Electrical Workers, 417 U. S. 790, 417 U. S. 805 n. 16 (1974). But the analysis of Garner and Insurance Agents came full bloom in the preemption area in Teamsters Union v. Morton, 377 U. S. 252 (1964), which held preempted the application Page 427 U. S. 146 of state law to award damages for peaceful union secondary picketing. Although Morton involved conduct neither "protected nor prohibited" by § 7 or § 8 of the NLRA, we recognized the necessity of an inquiry whether "Congress occupied this field and closed it to state regulation.'" 377 U.S. at 377 U. S. 258. Central to Morton's analysis was the observation that"[i]n selecting which forms of economic pressure should be prohibited . . . , Congress struck the 'balance . . . between the uncontrolled power of management and labor to further their respective interests,'"id. at 377 U. S. 258-259, [Footnote 7] and:"This weapon of self-help, permitted by federal law, formed an integral part of the petitioner's effort to achieve its bargaining goals during negotiations with the respondent. Allowing its use is a part of the balance struck by Congress between the conflicting interests of the union, the employees, the employer and the community. . . . If the Ohio law of secondary boycott can be applied to proscribe the same type of conduct which Congress focused upon but did not proscribe when it enacted § 303, the inevitable result would be to frustrate the congressional determination to leave this weapon of self-help available, and to upset the balance of power between labor and management expressed in our national labor policy. 'For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act Page 427 U. S. 147 prohibits.' Garner v. Teamsters Union, 346 U. S. 485, 346 U. S. 500."Id. at 377 U. S. 259-260.Although many of our past decisions concerning conduct left by Congress to the free play of economic forces address the question in the context of union and employee activities, self-help is, of course, also the prerogative of the employer, because he, too, may properly employ economic weapons Congress meant to be unregulable. Mr. Justice Harlan concurring in H. K. Porter Co. v. NLRB, 397 U.S. at 397 U. S. 109, stated the obvious:"[T]he Act as presently drawn does not contemplate that unions will always be secure and able to achieve agreement even when their economic position is weak, or that strikes and lockouts will never result from a bargaining impasse. It cannot be said that the Act forbids an employer . . . to rely ultimately on its economic strength to try to secure what it cannot obtain through bargaining.""[R]esort to economic weapons should more peaceful measures not avail" is the right of the employer, as well as the employee, American Ship Bldg. Co. v. NLRB, 380 U.S. at 380 U. S. 317, [Footnote 8] and the State may not prohibit the use of such weapons or "add to an employer's federal legal obligations in collective bargaining" any more than in the case of employees. Cox, supra, n 4, at 1365. See, e.g., Beasley v. Food Fair of North Carolina, 416 U. S. 653 (1974). Whether self-help economic activities are employed by employer or union, the crucial inquiry regarding preemption is the same: whether"the exercise Page 427 U. S. 148 of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act's processes."Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. at 394 U. S. 380.IIIThere is simply no question that the Act's processes would be frustrated in the instant case were the State's ruling permitted to stand. The employer in this case invoked the Wisconsin law because it was unable to overcome the Union tactic with its own economic self-help means. [Footnote 9] Although it did employ economic weapons putting pressure on the Union when it terminated the previous Page 427 U. S. 149 agreement, supra at 427 U. S. 134, it apparently lacked sufficient economic strength to secure its bargaining demands under "the balance of power between labor and management expressed in our national labor policy," Teamsters Union v. Morton, 377 U.S. at 377 U. S. 260. [Footnote 10] But the economic weakness of the affected party cannot justify state aid contrary to federal law for, as we have developed,"the use of economic pressure by the parties to a labor dispute is not a grudging exception [under] . . . the [federal] Act; it is part and parcel of the process of collective bargaining."Insurance Agents, 361 U.S. at 361 U. S. 495. The state action in this case is not filling "a regulatory void which Congress plainly assumed would not exist," Hanna Mining Co. v. Marine Engineers, 382 U.S. at 382 U. S. 196 (BRENNAN, J., concurring). Rather, it is clear beyond question that Wisconsin "[entered] into the substantive aspects of the bargaining process to an extent Congress has not countenanced." NLRB v. Insurance Agents, supra at 361 U. S. 498.Our decisions hold that Congress meant that these activities, whether of employer or employees, were not to be regulable by States any more than by the NLRB, for neither States nor the Board is "afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful." Ibid. Rather, both are without authority to attempt to "introduce Page 427 U. S. 150 some standard of properly balanced' bargaining power," id. at 361 U. S. 497 (footnote omitted), or to define "what economic sanctions might be permitted negotiating parties in an `ideal' or `balanced' state of collective bargaining." Id. at 361 U. S. 500. [Footnote 11] To sanction state regulation of such economic pressure deemed by the federal Act"desirabl[y] . . . left for the free play of contending economic forces, . . . is not merely [to fill] a gap [by] outlaw[ing] what federal law fails to outlaw; it is denying one party to an economic contest a weapon that Congress meant him to have available."Lesnick, Preemption Reconsidered: The Apparent Reaffirmation of Garmon, 72 Col.L.Rev. 469, 478 (1972). [Footnote 12] Accordingly, such regulation by Page 427 U. S. 151 the State is impermissible because it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Hill v. Florida, 325 U. S. 538, 326 U. S. 542 (1945).IVThere remains the question of the continuing vitality of Briggs-Stratton. San Diego Unions v. Garmon, 359 U.S. at 359 U. S. 245 n. 4, made clear that the Briggs-Stratton approach to preemption is "no longer of general application." See also Insurance Agents, supra at 361 U. S. 493 n. 23. We hold today that the ruling of Briggs-Stratton, permitting state regulation of partial strike activities such as are involved in this case is likewise "no longer of general application." [Footnote 13] Page 427 U. S. 152Briggs-Stratton assumed "management . . . would be disabled from any kind of self-help to cope with these coercive tactics of the union," and could at "take any steps to resist or combat them without incurring the sanctions of the Act." 336 U.S. at 336 U. S. 264. But as Insurance Agents held, where the union activity complained of is "protected," not because it is within § 7, but only because it is an activity Congress meant to leave unregulated, "the employer could have discharged or taken other appropriate disciplinary action against the employees participating." 361 U.S. at 361 U. S. 493. Moreover, even were the activity resented in the instant case "protected" activity within the meaning of § 7, [Footnote 14] economic Page 427 U. S. 153 weapons were available to counter the Union's refusal to work overtime, e.g., a lockout, American Ship Bldg. Co. v. NLRB, 380 U. S. 300 (1965), and the hiring of permanent replacements under NLRB v. Mackay Radio & Tel. Co., 304 U. S. 333 (1938). See Prince Lithograph Co., 205 N.L.R.B. 110, 115 (1973); Cox, The Right to Engage in Concerted Activities, 26 Ind.L.J. 319, 339 (1951); Getman, The Protection of Economic Pressure by Section 7 of the National Labor Relations Act, 115 U.Pa.L.Rev. 1195, 1236 (1967).Our decisions since Briggs-Stratton have made it abundantly clear that state attempts to influence the substantive terms of collective bargaining agreements are as inconsistent with the federal regulatory scheme as are such attempts by the NLRB:"Since the federal law operates here, in an area where its authority is paramount, to leave the parties free, the inconsistent application of state law is necessarily outside the power of the State."Teamsters Union v. Oliver, 358 U. S. 283, 358 U. S. 296 (1959). And indubitably regulation, whether federal or State, of"the choice of economic weapons that may be used as part of collective bargaining [exerts] considerable influence upon the substantive terms on which the parties contract."NLRB v. Insurance Agents, 361 U.S. at 361 U. S. 490. The availability or not of economic weapons that federal law leaves the parties free to use cannot "depend upon the forum in which the [opponent] presses its claims." Howard Johnson Co. v. Hotel Employees, 417 U. S. 249, 417 U. S. 256 (1974). [Footnote 15] Page 427 U. S. 154Although we are not unmindful of the demands of stare decisis and the "important policy considerations militat[ing] in favor of continuity and predictability in the law," Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235, 398 U. S. 240 (1970), Briggs-Stratton "stands as a significant departure from our . . . emphasis upon the Congressional policy" central to the statutory scheme it has enacted, and since our later decisions make plain that Briggs-Stratton "does not further but rather frustrates realization of an important goal of our national labor policy," Boys Markets, supra at 398 U. S. 241, Briggs-Stratton is expressly overruled. Its authority"has been 'so restricted by our later decisions' . . . that [it] must be regarded as having 'been worn away by the erosion of time' . . . and of contrary authority."United States v. Raines, 362 U. S. 17, 362 U. S. 26 (1960).VThis survey of the extent to which federal labor policy and the federal Act have preempted state regulatory authority to police the use by employees and employers of peaceful methods of putting economic pressure upon one another compels the conclusion that the judgment of the Wisconsin Supreme Court must be reversed. It is not contended, and on the record could not be contended, that the Union policy against overtime work was enforced by violence or threats of intimidation or injury to property. Workers simply left the plant at the end of their workshift and refused to volunteer for or accept overtime or Saturday work. In sustaining the order of the Wisconsin Commission, the Wisconsin Supreme Court relied on Briggs-Stratton as dispositive against the Union's claim of preemption, 67 Wis.2d at 19, 226 Page 427 U. S. 155 N.W.2d at 206. The court held further that the refusal to work overtime was neither arguably protected under § 7 nor arguably prohibited under § 8 of the federal Act, id. at 23-24, 226 N.W.2d at 208, an analysis which, as developed, is largely inapplicable to the circumstances of this case. NLRB v. Insurance Agents was distinguished on the ground that that case dealt only with NLRB power "to regulate . . . strike tactics," and left such "regulation . . . to the states." 67 Wis.2d at 22, 226 N.W.2d at 207. Finally, the court rejected the Union's argument, relying on Teamsters Union v. Morton, that the refusal to work overtime was affirmatively "permitted" under federal law, stating: "Congress has not focused upon' partial . . . strikes," and therefore "[p]olicing of such conduct is left wholly to the states." 67 Wis.2d at 26, 226 N.W.2d at 209.Since Briggs-Stratton is today overruled, and as we hold further that the Union's refusal to work overtime is peaceful conduct constituting activity which must be free of regulation by the States if the congressional intent in enacting the comprehensive federal law of labor relations is not to be frustrated, the judgment of the Wisconsin Supreme Court isReversed

U.S. Supreme CourtMachinists v. Wisconsin Employment Rel. Comm'n, 427 U.S. 132 (1976)Lodge 76, International Association of Machinists & AerospaceWorkers, AFL-CIO v. Wisconsin EmploymentRelations CommissionNo. 75-185Argued March 22, 1976Decided June 25, 1976427 U.S. 132SyllabusDuring negotiations for renewal of an expired collective bargaining agreement with respondent employer, petitioner union and its members engaged in a concerted refusal to work overtime. The employer filed a charge with the National Labor Relations Board (NLRB), claiming that such refusal was an unfair labor practice under the National Labor Relations Act (NLRA), but the charge was dismissed on the ground that the refusal did not violate the NLRA, and therefore was not conduct cognizable by the NLRB. The employer also filed an unfair labor practice complaint with respondent Wisconsin Employment Relations Commission, which held that such refusal, while neither protected nor prohibited by the NLRA, was an unfair labor practice under state law, and entered a cease and desist order against the union. The Wisconsin Circuit Court affirmed and entered a judgment enforcing the order, and the Wisconsin Supreme Court affirmed.Held: The union's concerted refusal to work overtime was peaceful conduct constituting activity that must be free of state regulation if the congressional intent in enacting the comprehensive federal law of labor relations is not to be frustrated. Congress meant that self-help economic activities, whether of employer or employee, were not to be regulable by States any more than by the NLRB, for neither States nor the NLRB is "afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful," NLRB v. Insurance Agents, 361 U. S. 477, 361 U. S. 498; rather, both are without authority to attempt to "introduce some standard of properly balanced' bargaining power," id. at 361 U. S. 497, or to define what "economic sanctions might be permitted negotiating parties in an `ideal' or `balanced' state of collective bargaining." Id. at 361 U. S. 500. Automobile Workers v. Wisconsin Emp. Rel. Bd., 336 U. S. 245 (Briggs-Stratton case), overruled. Pp. 427 U. S. 136-155.67 Wis.2d 13, 226 N.W.2d 203, reversed. Page 427 U. S. 133BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion, in which BURGER, C.J., joined, post, p. 427 U. S. 155. STEVENS, J., filed a dissenting opinion, in which STEWART and REHNQUIST, JJ., joined, post, p. 427 U. S. 156.

1960_212

MR. JUSTICE WHITTAKER delivered the opinion of the Court.Among their various contentions, petitioners sought our writ of certiorari on the ground that, although finding that the State of Washington had discriminatorily, and therefore unconstitutionally, valued and taxed their federal Wherry Act leaseholds, the Court of Appeals for the Ninth Circuit nevertheless sustained and enforced those taxes. 276 F.2d 836. We granted the writ, limited to that question. 364 U.S. 814. Understanding of our decision will require a brief statement of the relevant facts of the case.Acting pursuant to the provisions of §§ 801 to 809 of Title VIII of the National Housing Act (12 U.S.C. (1958 ed.) §§ 1748, 1748a to h-1), the Secretary of the Air Force, on behalf of the United States, entered into a separate lease, with each of Moses Lake Homes, Inc., Larsonaire Homes, Inc., and Larson Heights, Inc., Washington corporations, demising, in each instance, a particularly described tract of land, within the Larson Air Force Base in Grant County, Washington, for a term of 75 years, unless sooner terminated by the Government, for use as a housing project at a nominal rental of $100 per year. [Footnote 1]The leases were on the same form, and each bound the lessee to erect on its leasehold a described housing project, and to maintain and operate it throughout the life of the Page 365 U. S. 746 lease. Each lease contemplated and provided that the lessee would raise the money necessary to construct the project by an FHA insured mortgage loan on its leasehold and the improvements, to be serviced and amortized by the lessee out of its rents from the housing units, which were to be rented at such rates and to such military and civilian personnel as the Commanding Officer of the air base might designate. The leases further provided that the buildings and improvements, "as completed," would become the property of the United States, and so remain, regardless of any termination of the lease, without further compensation to the lessee.With the proceeds of FHA insured mortgage loans on their respective leaseholds and the improvements, aggregating more than $6,000,000, the lessees erected the respective housing projects and undertook their management and operation as agreed in the leases.In June, 1954, the Grant County assessor placed the Moses Lake leasehold on his assessment list for taxation in the year 1955, but he did not then levy any tax against it. Moses Lake promptly sued for and obtained a decree in the Superior Court of the State enjoining the County from levying any taxes on its leasehold for the year 1955 and thereafter. Upon the County's appeal, the Supreme Court of Washington reversed on November 14, 1957, holding that the leasehold was taxable by the County, and further holding, upon its understanding of our opinion in Offutt Housing Co. v. Sarpy County, 351 U. S. 253, that it would be proper, for such purpose, to value the leasehold at "the full value of the buildings and improvements" thereon. Moses Lake Homes, Inc. v. Grant County, 51 Wash. 2d 285, 287, 317 P.2d 1069, 1070.Thereafter, in December, 1957, the County valued these Wherry Act leaseholds on the basis of the full value of the buildings and improvements, and, acting under § 84.40.080, Revised Code of Washington, retrospectively Page 365 U. S. 747 assessed its taxes against the Moses Lake leasehold for the years 1955 through 1958, against the Larsonaire leasehold for the years 1956 through 1958, and against the Larson Heights leasehold for the years 1957 and 1958, as "omitted property" as authorized by that section. [Footnote 2] Later, the County assessed and levied its taxes against the leaseholds, on the same basis, for the year 1959. [Footnote 3]On January 21, 1958, the County issued its distraints, and also its notices of sales of these leaseholds and the improvements thereon to be held on March 4, 1958, to satisfy its tax demands. Very soon thereafter, the United States instituted this condemnation action in the United States District Court for the Eastern District of Washington against the lessees and Grant County, and, on March 1, 1958, it filed therein its declaration of taking, and took, these leasehold estates -- depositing in the registry of the court $253,000 as their estimated value [Footnote 4] -- and thereupon, on motion of the United States, the court Page 365 U. S. 748 enjoined Grant County from proceeding with its tax sales pending final determination of the case.By its answer, the County claimed, and asked the court to award it, the greater part of the deposit to satisfy its tax demands. [Footnote 5] The lessees disputed the County's claim, contending, inter alia, that the asserted taxes were invalid because discriminatorily assessed in violation of § 511 of the Housing Act of 1956 (70 Stat. 1091, c. 1029, 42 U.S.C. (1958 ed.) § 1594 note) and in violation of the United States Constitution. That issue, among others, was litigated between those parties as adversary codefendants.Although the District Court found that Washington's "taxes and assessments on Wherry housing [leaseholds] are . . . levied upon a basis different and higher than [other leaseholds]," it nevertheless held that, but for the state court injunction, the 1955 and 1956 taxes against the Moses Lake leasehold would have been validly assessed and levied before the effective period of § 511 of the Housing Act of 1956 (June 15, 1956), [Footnote 6] and it allowed those items of the County's claim; but it denied all other items of the claim. On appeal, the Ninth Circuit"sustained [the District] court's finding that the Page 365 U. S. 749 method used in assessing the Moses Lake leaseholds resulted in a higher tax than would have been true in the case of a non-Wherry Act leasehold,"276 F.2d at 847, but it held that"the fact that the taxes are higher does not invalidate the entire tax. It only requires that the amount collectible be reduced to what it would have been if the tax had been levied on a non-Wherry Act leasehold basis,"276 F.2d at 847, and -- otherwise upholding the County's levies against the Moses Lake leasehold for the years 1955, 1956 and 1957 -- it remanded the case to the District Court to make the proper reduction in the amount of those taxes, and also for further proceedings respecting the other taxpayers and tax years involved, except it held that the 1959 taxes were invalid because levied on the leaseholds after the United States had acquired them.In addition to the weight properly to be accorded to the conclusions of the two courts below that Washington imposes a higher tax on Wherry Act leaseholds than on other similar leaseholds, it is eminently clear that this is so. Section 84.40.030 of the Revised Code of Washington provides that all property shall be assessed at 50 percent of its fair value, and that "Taxable leasehold estates shall be valued at such price as they would bring at a fair, voluntary sale for cash." Consonant with that statute, the Washington Supreme Court has consistently held, save as to Wherry Act leaseholds, that all leaseholds, including leaseholds on the State's own tax-exempt lands are to be valued for tax purposes on the basis of their fair market value, considering their burdens as well as their benefits. Metropolitan Building Co. v. King County, 72 Wash. 47, 129 P. 883; Metropolitan Building Co. v. King County, 64 Wash. 615, 117 P. 495; Metropolitan Building Co. v. King County, 62 Wash. 409, 113 P. 1114. And see Bellingham Community Hotel Co. v. Whatcom County, 190 Wash. 609, 612-613, 70 P.2d 301, 303, and Page 365 U. S. 750 Dexter Horton Bldg. Co. v. King County, 10 Wash. 2d 186, 116 P.2d 507.Even the facts of the Metropolitan cases are remarkably similar to the facts here. There, the Metropolitan Company acquired a 50-year lease of land owned by the State. As required by the lease, the lessee erected very substantial improvements upon the land -- funding their cost with a large issue of mortgage bonds -- which improvements, immediately upon completion, became the property of the State. In the first of those cases, 62 Wash. 409, 113 P. 1114, the Court held that the leasehold should not be assessed at a "speculative" value, but at its "actual . . . value in money . . . ," and that it was error to assess it at the value of the improvements. In the two later Metropolitan cases (64 Wash. 615, 117 P. 495; 72 Wash. 47, 129 P. 883), the court emphasized that, in determining the fair market value of the leasehold, consideration must be given to its burdens, including mortgages upon it, as well as to its benefits.Yet, without overruling or departing those cases with respect to state-created leaseholds, the Washington Supreme Court held in Moses Lake Homes Co., Inc. v. Grant County, 51 Wash. 2d 285, 317 P.2d 1069, 1071, that Wherry Act leaseholds are taxable at "the full value of the buildings and improvements" thereon. It felt bound, as it said, to apply that special valuation rule to Wherry Act leaseholds because of our opinion in Offutt Housing Co. v. Sarpy County, 351 U. S. 253. In this, the Washington Supreme Court mistakenly read and misapplied the Offutt case. Nothing in that case requires the States to assess Wherry Act leaseholds on the basis of the value of the improvements thereon. In this respect, it holds only that such a valuation is not unconstitutional per se. That case did not involve any issue or question of discrimination. It involved the law of Nebraska, which requires all leaseholds in tax-exempt property to be assessed at the Page 365 U. S. 751 full value of the buildings and improvements thereon, and the Offutt case held that such might constitutionally be done. It did not hold, as the Supreme Court of Washington has construed it in the Moses Lake case, that a State might constitutionally discriminate against leaseholds on federally owned lands in favor of leaseholds on state-owned lands.If anything is settled in the law, it is that a State may not discriminate against the Federal Government or its lessees. See, e.g., Phillips Co. v. Dumas School District, 361 U. S. 376; United States v. City of Detroit, 355 U. S. 466, 355 U. S. 473; City of Detroit v. Murray Corp., 355 U. S. 489. In United States v. City of Detroit, supra, we said:"It still remains true, as it has from the beginning, that a tax may be invalid even though it does not fall directly on the United States if it operates so as to discriminate against the Government or those with whom it deals."355 U.S. at 355 U. S. 473.The Dumas case, supra, is closely in point, and controlling. There, the State of Texas taxed the leasehold estate of a government lessee at the "full value of the leased premises" (361 U.S. at 361 U. S. 378), while it imposed "a distinctly lesser burden on similarly situated lessees of exempt property owned by the State and its political subdivisions." 361 U.S. at 361 U. S. 379. We there said,"[I]t does not seem too much to require that the State treat those who deal with the Government as well as it treats those with whom it deals itself,"361 U.S. at 361 U. S. 385, and we held the tax to be void because it "discriminates unconstitutionally against the United States and its lessees." 361 U.S. at 361 U. S. 379. That case is indistinguishable from this one on the point here.The Court of Appeals was also in error in holding that"the fact that the taxes are higher does not invalidate the entire tax, [but] only requires that the amount collectible Page 365 U. S. 752 be reduced to what it would have been if the tax had been levied on a non-Wherry Act leasehold basis"(276 F.2d at 847), and in remanding the case to the District Court to make the necessary adjustment. We held in the Dumas case, supra, that a discriminatory tax is void and "may not be exacted." 361 U.S. at 361 U. S. 387. The effect of the Court's remand was to direct the District Court to decree a valid tax for the invalid one which the State had attempted to exact. The District Court has no power so to decree. Federal courts may not assess or levy taxes. Only the appropriate taxing officials of Grant County may assess and levy taxes on these leaseholds, and the federal courts may determine, within their jurisdiction, only whether the tax levied by those officials is or is not a valid one. When, as here, the tax is invalid, it "may not be exacted." Phillips Co. v. Dumas School District, 361 U.S. at 361 U. S. 387.Nor is there any merit in respondent's contention that the opinion and judgment of the Supreme Court of Washington in the Moses Lake case, supra, is res judicata of the County's tax claims against the Moses Lake leasehold for at least the years 1955 and 1956. This is so because no tax whatever had then been assessed and levied against the Moses Lake leasehold, and, hence, no issue of discrimination was or could have been presented and adjudicated in that case.Inasmuch as the taxes, presently assessed and levied, discriminate unconstitutionally against the United States and its lessees, they are void, and hence may not be exacted.Reversed

U.S. Supreme CourtMoses Lake Homes, Inc. v. Grant County, 365 U.S. 744 (1961)Moses Lake Homes, Inc. v. Grant CountyNo. 212Argued March 23, 1961Decided April 17, 1961365 U.S. 744Syllabus1. Respondent County attempted to tax the full value of the buildings and improvements on privately owned Wherry Act leaseholds of housing developments on a federally owned Air Force base, although it taxed other leaseholds, including privately owned leaseholds of tax-exempt state lands, at a lower valuation.Held: the tax is unconstitutional and void, because it discriminates against the United States and its lessees. Phillips Co. v. Dumas School District, 361 U. S. 376, followed. Offutt Housing Co. v. Sarpy County, 351 U. S. 253, distinguished. Pp. 365 U. S. 749-751.2. The Court of Appeals erred in holding that the fact that the taxes were higher did not invalidate them entirely, but only required that the amount collectible be reduced to a valid amount, and in directing the District Court to decree a valid tax for the invalid one which the State had attempted to exact. Such a discriminatory tax is entirely void, and federal courts have no authority to assess or levy taxes on behalf of States or their counties. Pp. 365 U. S. 751-752.3. An opinion and judgment of the Supreme Court of Washington holding that such leaseholds may lawfully be so valued was not res judicata as to the County's tax claims against one of the leaseholds here involved for the years 1955 and 1956, because no tax had been levied or assessed against that leasehold when that decision was rendered, and, hence, no issue of discrimination was or could have been presented and adjudicated in that case. P. 365 U. S. 752.276 F.2d 836, reversed. Page 365 U. S. 745

1974_74-157

MR. JUSTICE POWELL delivered the opinion of the Court.The issue in these cases is whether shares of stock entitling a purchaser to lease an apartment in Co-op City, a state subsidized and supervised nonprofit housing cooperative, are "securities" within the purview of the Securities Act of 1933 and the Securities Exchange Act of 1934.ICo-op City is a massive housing cooperative in New York City. Built between 1965 and 1971, it presently houses approximately 50,000 people on a 200-acre site containing 35 high-rise buildings and 236 town houses. The project was organized, financed, and constructed under the New York State Private Housing Finance Law, commonly known as the Mitchell-Lama Act, enacted to ameliorate a perceived crisis in the availability of decent low income urban housing. In order to encourage private Page 421 U. S. 841 developers to build low-cost cooperative housing, New York provides them with large long-term, low interest mortgage loans and substantial tax exemptions. Receipt of such benefits is conditioned on a willingness to have the State review virtually every step in the development of the cooperative. See N.Y.Priv.Hous.Fin.Law § § 11-37, as amended (1962 and Supp. 1974-1975). The developer also must agree to operate the facility "on a nonprofit basis," § 11-a(2a), and he may lease apartments only to people whose incomes fall below a certain level and who have been approved by the State. [Footnote 1]The United Housing Foundation (UHF), a nonprofit membership corporation established for the purpose of "aiding and encouraging" the creation of "adequate, safe and sanitary housing accommodations for wage earners and other persons of low or moderate income," [Footnote 2] Appendix in Court of Appeals 95a (hereafter App.), was responsible for initiating and sponsoring the development of Co-op City. Acting under the Mitchell-Lama Act, UHF organized the Riverbay Corporation (Riverbay) to own and operate the land and buildings constituting Co-op City. Riverbay, a nonprofit cooperative housing corporation, issued the stock that is the subject of this litigation. UHF also contracted with Community Services, Inc. (CSI), its wholly owned subsidiary, to serve as the general contractor and sales Page 421 U. S. 842 agent for the project. [Footnote 3] As required by the Mitchell-Lama Act, these decisions were approved by the State Housing Commissioner.To acquire an apartment in Co-op City, an eligible prospective purchaser [Footnote 4] must buy 18 shares of stock in Riverbay for each room desired. The cost per share is $25, making the total cost $450 per room, or $1,800 for a four-room apartment. The sole purpose of acquiring these shares is to enable the purchaser to occupy an apartment in Co-op City; in effect, their purchase is a recoverable deposit on an apartment. The shares are explicitly tied to the apartment: they cannot be transferred to a nontenant; nor can they be pledged or encumbered; and they descend, along with the apartment, only to a surviving spouse. No voting rights attach to the shares as such: participation in the affairs of the cooperative appertains to the apartment, with the residents of each apartment being entitled to one vote irrespective of the number of shares owned.Any tenant who wants to terminate his occupancy, or who is forced to move out, [Footnote 5] must offer his stock to Riverbay at its initial selling price of $25 per share. In the extremely unlikely event that Riverbay declines to repurchase the stock, [Footnote 6] the tenant cannot sell it for more than Page 421 U. S. 843 the initial purchase price plus a fraction of the portion of the mortgage that he has paid off, and then only to a prospective tenant satisfying the statutory income eligibility requirements. See N.Y.Priv.Hous.Fin.Law § 31-a (Supp. 1974-1975).In May, 1965, subsequent to the completion of the initial planning, Riverbay circulated an Information Bulletin seeking to attract tenants for what would someday be apartments in Co-op City. After describing the nature and advantages of cooperative housing generally and of Co-op City in particular, the Bulletin informed prospective tenants that the total estimated cost of the project, based largely on an anticipated construction contract with CSI, was $283,695,550. Only a fraction of this sum, $32,795,550, was to be raised by the sale of shares to tenants. The remaining $250,900,000 was to be financed by a 40-year low-interest mortgage loan from the New York Private Housing Finance Agency. After construction of the project the mortgage payments and current operating expenses would be met by monthly rental charges paid by the tenants. While these rental charges were to vary, depending on the size, nature, and location of an apartment, the 1965 Bulletin estimated that the "average" monthly cost would be $23.02 per room, or $92.08 for a four-room apartment.Several times during the construction of Co-op City, Riverbay, with the approval of the State Housing Commissioner, revised its contract with CSI to allow for increased construction costs. In addition, Riverbay incurred other expenses that had not been reflected in the Page 421 U. S. 844 1965 Bulletin. To meet these increased expenditures, Riverbay, with the Commissioner's approval, repeatedly secured increased mortgage loans from the State Housing Agency. Ultimately the construction loan was $125 million more than the figure estimated in the 1965 Bulletin. As a result, while the initial purchasing price remained at $50 per room, the average monthly rental charges increased periodically, reaching a figure of $39.68 per room as of July 1974. [Footnote 7]These increases in the rental charges precipitated the present lawsuit. Respondents, 57 residents of Co-op City, sued in federal court on behalf of all 15,372 apartment owners, and derivatively on behalf of Riverbay, seeking upwards of $30 million in damages, forced rental reductions, and other "appropriate" relief. Named as defendants (petitioners herein) were UHF, CSI, Riverbay, several individual directors of these organizations, the State of New York, and the State Private Housing Finance Agency. The heart of respondents' claim was that the 1965 Co-op City Information Bulletin falsely represented that CSI would bear all subsequent cost increases due to factors such as inflation. Respondents further alleged that they were misled in their purchases of shares since the Information Bulletin failed to disclose several critical facts. [Footnote 8] On these bases, Page 421 U. S. 845 respondents asserted two claims under the fraud provisions of the federal Securities Act of 1933, as amended, § 17(a), 48 Stat. 84, 15 U.S.C. § 77q(a); the Securities Exchange Act of 1934, as amended, § 10(b), 48 Stat. 891, 15 U.S.C. § 78j(b); and 17 CFR § 240.10b-5 (1975). They also presented a claim against the State Financing Agency under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and 10 pendent state law claims.Petitioners, while denying the substance of these allegations, [Footnote 9] moved to dismiss the complaint on the ground that federal jurisdiction was lacking. They maintained that shares of stock in Riverbay were not "securities" within the definitional sections of the federal Securities Acts. In addition, the state parties moved to dismiss on sovereign immunity grounds.The District Court granted the motion to dismiss. Forman v. Community Services, Inc., 366 F. Supp. 1117 (SDNY 1973). It held that the denomination of the shares in Riverbay as "stock" did not, by itself, make them securities under the federal Acts. The court further ruled, relying primarily on this Court's decisions in SEC v. C. M. Joiner Leasing Corp., 320 U. S. 344 (1943), and SEC v. W. J. Howey Co., 328 U. S. 293 (1946), that the purchase in issue was not a security transaction, since it was not induced by an offer of tangible material profits, nor could such profits realistically be expected. In the District Court's words, it was Page 421 U. S. 846 "the fundamental nonprofit nature of this transaction" which presented "the insurmountable barrier to [respondents'] claims in th[e] federal court." 366 F. Supp. at 1 128. [Footnote 10]The Court of Appeals for the Second Circuit reversed. Forman v. Community Services, Inc., 500 F.2d 1246 (1974). It rested its decision on two alternative grounds. First, the court held that, since the shares purchased were called "stock" the Securities Acts, which explicitly include "stock" in their definitional sections, were literally applicable. Second, the Court of Appeals concluded that the transaction was an investment contract within the meaning of the Acts and as defined by Howey, since there was an expectation of profits from three sources: (i) rental reductions resulting from the income produced by the commercial facilities established for the use of tenants at Co-op City; (ii) tax deductions for the portion of the monthly rental charges allocable to interest payments on the mortgage; and (iii) savings based on the fact that apartments at Co-op City cost substantially less than comparable nonsubsidized housing. The court further ruled that the immunity claims by the state parties were unavailing. [Footnote 11] Accordingly, the Page 421 U. S. 847 case was remanded to the District Court for consideration of respondents' claims on the merits.In view of the importance of the issues presented, we granted certiorari. 419 U.S. 1120 (1975). As we conclude that the disputed transactions are not purchases of securities within the contemplation of the federal statutes, we reverse.IISection 2(1) of the Securities Act of 1933, 15 U.S.C. § 77b(1), defines a "security" as"any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a 'security,' or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. [Footnote 12]"In providing this definition, Congress did not attempt to articulate the relevant economic criteria for distinguishing "securities" from "non-securities." Rather, it sought to define"the term 'security' in sufficiently broad and general terms so as to include within that definition the many types of instruments that, in our commercial world Page 421 U. S. 848 fall within the ordinary concept of a security."H.R.Rep. No. 85, 73d Cong., 1st Sess., 11 (1933). The task has fallen to the Securities and Exchange Commission (SEC), the body charged with administering the Securities Acts, and ultimately to the federal courts to decide which of the myriad financial transactions in our society come within the coverage of thee statutes.In making this determination in the present case, we do not write on a clean slate. Well-settled principles enunciated by this Court establish that the shares purchased by respondents do not represent any of the "countless and variable scheme devised by those who seek the use of the money of others on the promise of profits," Howey, 328 U.S. at 328 U. S. 299, and therefore do not fall within "the ordinary concept of a security."AWe reject at the outset any suggestion that the present transaction, evidenced by the sale of shares called "stock," [Footnote 13] must be considered a security transaction simply because the statutory definition of a security includes the words "any . . . stock." Rather, we adhere to the basic principle that has guided all of the Court's decisions in this area:"[I]n searching for the meaning and scope of the word 'security' in the Act[s], form should be disregarded for substance and the emphasis should be on economic reality."Tcherepnin v. Knight, 389 U. S. 332, 389 U. S. 336 (1967). See also Howey, supra, at 328 U. S. 298. Page 421 U. S. 849The primary purpose of the Acts of 1933 and 1934 was to eliminate serious abuses in a largely unregulated securities market. The focus of the Acts is on the capital market of the enterprise system: the sale of securities to raise capital for profit-making purposes, the exchanges on which securities are traded, and the need for regulation to prevent fraud and to protect the interest of investors. Because securities transactions are economic in character, Congress intended the application of these statutes to turn on the economic realities underlying a transaction, and not on the name appended thereto. Thus, in construing these Acts against the background of their purpose, we are guided by a traditional canon of statutory construction:"[A] thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers."Church of the Holy Trinity v. United States, 143 U. S. 457, 143 U. S. 459 (1892). See also United States v. American Trucking Assns., 310 U. S. 534, 310 U. S. 543 (1940). [Footnote 14] Respondents' reliance on Joiner as support for a "literal approach" to defining a security is misplaced. The issue in Joiner was whether assignments of interests in oil leases, coupled with the promoters' offer to drill an exploratory well, were securities. Looking to the economic Page 421 U. S. 850 inducement provided by the proposed exploratory well, the Court concluded that these leases were securities even though "leases" as such were not included in the list of instruments mentioned in the statutory definition. In dictum, the Court noted that"[i]nstruments may be included within [the definition of a security], as [a] matter of law, if on their face they answer to the name or description."320 U.S. at 320 U. S. 351 (emphasis supplied). And later, again in dictum, the Court stated that a security "might" be shown "by proving the document itself, which, on its face, would be a note, a bond, or a share of stock." Id. at 320 U. S. 355 (emphasis supplied). By using the conditional words "may" and "might" in these dicta the Court made clear that it was not establishing an inflexible rule barring inquiry into the economic realities underlying a transaction. On the contrary, the Court intended only to make the rather obvious point that, in contrast to the instrument before it which was not included within the explicit statutory terms, most instruments bearing these traditional titles are likely to be covered by the statutes. [Footnote 15]In holding that the name given to an instrument is not dispositive, we do not suggest that the name is wholly irrelevant to the decision whether it is a security. There may be occasions when the use of a traditional name such as "stocks" or "bonds" will lead a purchaser justifiably to assume that the federal securities laws apply. Page 421 U. S. 851 This would clearly be the case when the underlying transaction embodies some of the significant characteristics typically associated with the named instrument.In the present case, respondents do not contend, nor could they, that they were misled by use of the word "stock" into believing that the federal securities laws governed their purchase. Common sense suggests that people who intend to acquire only a residential apartment in a state-subsidized cooperative, for their personal use, are not likely to believe that, in reality they are purchasing investment securities simply because the transaction is evidenced by something called a share of stock. These shares have none of the characteristics "that, in our commercial world fall within the ordinary concept of a security." H.R.Rep. No. 85, supra, at 11. Despite their name, they lack what the Court in Tcherepnin deemed the most common feature of stock: the right to receive "dividends contingent upon an apportionment of profits." 389 U.S. at 389 U. S. 339. Nor do they possess the other characteristics traditionally associated with stock: they are not negotiable; they cannot be pledged or hypothecated; they confer no voting rights in proportion to the number of shares owned; and they cannot appreciate in value. In short, the inducement to purchase was solely to acquire subsidized low-cost living space; it was not to invest for profit.BThe Court of Appeals, as an alternative ground for its decision, concluded that a share in Riverbay was also an "investment contract" as defined by the Securities Acts. Respondents further argue that, in any event, what they agreed to purchase is "commonly known as a security'" within the meaning of these laws. In considering these claims, we again must examine the substance -- the economic realities of the transaction -- rather than the Page 421 U. S. 852 names that may have been employed by the parties. We perceive no distinction, for present purposes, between an "investment contract" and an "instrument commonly known as a `security.'" In either case, the basic test for distinguishing the transaction from other commercial dealings is"whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others."Howey, 328 U.S. at 328 U. S. 301. [Footnote 16] This test, in shorthand form, embodies the essential attributes that run through all of the Court's decisions defining a security. The touchstone is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others. By profits, the Court has meant either capital appreciation resulting from the development of the initial investment, as in Joiner, supra, (sale of oil leases conditioned on promoters' agreement to drill exploratory well), or a participation in earnings resulting from the use of investors' funds, as in Tcherepnin v. Knight, supra (dividends on the investment based on savings and loan association's profits). In such cases, the investor is "attracted solely by the prospects of a return" on his investment. Howey, supra, at 328 U. S. 300. By contrast, when a purchaser is motivated by a Page 421 U. S. 853 desire to use or consume the item purchased -- "to occupy the land or to develop it themselves," as the Howey Court put it, ibid. -- the securities laws do not apply. [Footnote 17] See also Joiner, supra. [Footnote 18]In the present case, there can be no doubt that investors were attracted solely by the prospect of acquiring a place to live, and not by financial returns on their investments. The Information Bulletin distributed to prospective residents emphasized the fundamental nature and purpose of the undertaking:"A cooperative is a non-profit enterprise owned and controlled democratically by its members -- the people who are using its services. . . .""* * * *" "People find living in a cooperative community enjoyable for more than one reason. Most people join, however, for the simple reason that it is a way to obtain decent housing at a reasonable price. Page 421 U. S. 854 However, there are other advantages. The purpose of a cooperative is to provide home ownership, not just apartments to rent. The community is designed to provide a favorable environment for family and community living. . . .""The common bond of collective ownership which you share makes living in a cooperative different. It is a community of neighbors. Home ownership, common interest, and the community atmosphere make living in a cooperative like living in a small town. As a rule, there is very little turnover in a cooperative."App. 162a, 166a. Nowhere does the Bulletin seek to attract investors by the prospect of profits resulting from the efforts of the promoters or third parties. On the contrary, the Bulletin repeatedly emphasizes the "nonprofit" nature of the endeavor. It explains that, if rental charges exceed expenses, the difference will be returned as a rebate, not invested for profit. It also informs purchasers that they will be unable to resell their apartments at a profit, since the apartment must first be offered back to Riverbay "at the price . . . paid for it." [Footnote 19] Id. at 163a. In short, neither of the kinds of profits traditionally associated with securities was offered to respondents.The Court of Appeals recognized that there must be an expectation of profits for these shares to be securities, and conceded that there is "no possible profit on a resale of [this] stock." 500 F.2d at 1254. The court correctly Page 421 U. S. 855 noted, however, that profit may be derived from the income yielded by an investment as well as from capital appreciation, and then proceeded to find "a expectation of income' in at least three ways." Ibid. Two of these supposed sources of income or profits may be disposed of summarily. We turn first to the Court of Appeals' reliance on the deductibility for tax purposes of the portion of the monthly rental charge applied to interest on the mortgage. We know of no basis in law for the view that the payment of interest, with its consequent deductibility for tax purposes, constitutes income or profits. [Footnote 20] These tax benefits are nothing more than that which is available to any homeowner who pays interest on his mortgage. See § 216 of Internal Revenue Code, 26 U.S.C. § 216; Eckstein v. United States, 196 Ct.Cl. 644, 452 F.2d 1036 (1971).The Court of Appeals also found support for its concept of profits in the fact that Co-op City offered space at a cost substantially below the going rental charges for comparable housing. Again, this is an inappropriate theory of "profits" that we cannot accept. The low rent derives from the substantial financial subsidies provided by the State of New York. This benefit cannot be liquidated into cash; nor does it result from the managerial efforts of others. In a real sense, it no more embodies the attributes of income or profits than do welfare benefits, food stamps, or other government subsidies.The final source of profit relied on by the Court of Appeals was the possibility of net income derived from the leasing by Co-op City of commercial facilities, professional Page 421 U. S. 856 offices and parking spaces, and its operation of community washing machines. The income, if any, from these conveniences, all located within the common areas of the housing project, is to be used to reduce tenant rental costs. Conceptually, one might readily agree that net income from the leasing of commercial and professional facilities is the kind of profit traditionally associated with a security investment. [Footnote 21] See Tcherepnin v. Knight, supra. But in the present case, this income -- if indeed there is any -- is far too speculative and insubstantial to bring the entire transaction within the Securities Acts.Initially we note that the prospect of such income as a means of offsetting rental costs is never mentioned in the Information Bulletin. Thus, it is clear that investors were not attracted to Co-op City by the offer of these potential rental reductions. See Joiner, 320 U.S. at 320 U. S. 353. Moreover, nothing in the record suggests that the facilities, in fact, return a profit in the sense that the leasing fees are greater than the actual cost to Co-op City of the space rented. [Footnote 22] The short of the matter is Page 421 U. S. 857 that the stores and services in question were established not as a means of returning profits to tenant, but for the purpose of making essential services available for the residents of this enormous complex. [Footnote 23] By statute, these facilities can only be "incidental and appurtenant" to the housing project. N.Y.Priv.Hous.Fin.Law § 12(5) (Supp. 1974-1975). Undoubtedly they make Co-op City a more attractive housing opportunity, but the possibility of some rental reduction is not an "expectation of profit" in the sense found necessary in Howey. [Footnote 24] Page 421 U. S. 858There is no doubt that purchasers in this housing cooperative sought to obtain a decent home at an attractive price. But that type of economic interest characterizes every form of commercial dealing. What distinguishes a security transaction -- and what is absent here -- is an investment where one parts with his money in the hope of receiving profits from the efforts of others, and not where he purchases a commodity for personal consumption or living quarters for personal use. [Footnote 25] Page 421 U. S. 859IIIIn holding that there is no federal jurisdiction, we do not address the merits of respondents' allegations of fraud. Nor do we indicate any view as to whether the type of claims here involved should be protected by federal regulation. [Footnote 26] We decide only that the type of Page 421 U. S. 860 transaction before us, in which the purchasers were interested in acquiring housing, rather than making an investment for profit, is not within the scope of the federal securities laws.Since respondents' claims are not cognizable in federal court, the District Court properly dismissed their complaint. [Footnote 27] The judgment below is thereforeReversed

U.S. Supreme CourtUnited Housing Foundation, Inc. v. Forman, 421 U.S. 837 (1975)United Housing Foundation, Inc. v. FormanNo. 74-157Argued April 22, 1975Decided June 16, 1975*421 U.S. 837SyllabusRespondents are 57 residents of Co-op City, a massive cooperative housing project in New York City, organized, financed, and constructed under the New York Private Housing Finance Law (Mitchell-Lama Act). They brought this action on behalf of all the apartment owners and derivatively on behalf of the housing corporation, alleging, inter alia, violations of the antifraud provisions of the Securities Act of 1933 and of the Securities Exchange Act of 1934 (hereafter collectively Securities Acts), in connection with the sale to respondents of shares of the common stock of the cooperative housing corporation. Citing substantial increases in the tenants' monthly rental charges as a result of higher construction costs, respondents' claim centered on a Co-op City Information Bulletin issued in the project's initial stages, which allegedly misrepresented that the developers would absorb future cost increases due to such factors as inflation. Under the Mitchell-Lama Act, which was designed to encourage private developers to build low-cost cooperative housing, the State provides large, long-term low-interest mortgage loans and substantial tax exemptions, conditioned on step-by-step state supervision of the cooperative's development. Developers must agree to operate the facilities "on a nonprofit basis," and may lease apartments to only state-approved lessees whose incomes are below a certain level. The corporate petitioners in this case built, promoted, and presently control Co-op City: United Housing Foundation (UHF), a nonprofit membership corporation, initiated and sponsored the project; Riverbay, a nonprofit cooperative housing corporation, was organized by UHF to own and operate the land and buildings and issue the stock that is the subject of the instant action; and Community Securities, Inc. (CSI), UHF's wholly owned subsidiary, was the project's general Page 421 U. S. 838 contractor and sales agent. To acquire a Co-op City apartment, a prospective purchaser must buy 18 shares of Riverbay stock for each room desired at $25 per share. The shares cannot be transferred to a nontenant, pledged, encumbered, or bequeathed (except to a surviving spouse), and do not convey voting rights based on the number owned (each apartment having one vote). On termination of occupancy, a tenant must offer his stock to Riverbay at $25 per share, and, in the unlikely event that Riverbay does not repurchase, the tenant cannot sell his shares for more than their original price, plus a fraction of the mortgage amortization that he has paid during his tenancy, and then only to a prospective tenant satisfying the statutory income eligibility requirements. Under the Co-op City Lease arrangement, the resident is committed to make monthly rental payments in accordance with the size, nature, and location of the apartment. The Securities Acts define a "security" as "any . . . stock, . . . investment contract, . . . or, in general, any interest or instrument commonly known as a security.'" Petitioners moved to dismiss the complaint for lack of federal jurisdiction, maintaining that the Riverbay stock did not constitute securities as thus defined. The District Court granted the motion to dismiss. The Court of Appeals reversed, holding that (1) since the shares purchased were called "stock," the definitional sections of the Securities Acts were literally applicable, and (2) the transaction was an investment contract under the Securities Acts, there being a profit expectation from rental reductions resulting from (i) the income produced by commercial facilities established for the use of Co-op City tenants; (ii) tax deductions for the portion of monthly rental charges allocable to interest payments on the mortgage; and (iii) savings based on the fact that Co-op City apartments cost substantially less than comparable nonsubsidized housing.Held: The shares of stock involved in this Litigation do not constitute "securities" within the purview of the Securities Acts, and since respondents' claims are not cognizable in federal court, the District Court properly dismissed their complaint. Pp. 421 U. S. 847-858.(a) When viewed, as they must be, in terms of their substance (the economic realities of the transaction), rather than their form, the instruments involved here were not shares of stock in the ordinary sense of conferring the right to receive "dividends contingent upon an apportionment of profits," Tcherepnin v. Knight, 389 U. S. 332, 389 U. S. 339, with the traditional characteristics of being Page 421 U. S. 839 negotiable, subject to pledge or hypothecation, conferring voting rights proportional to the number of shares owned, and possibility of appreciating in value. On the contrary, these instruments were purchased not for making a profit, but for acquiring subsidized low-cost. housing. Pp. 421 U. S. 848-851.(b) A share in Riverbay does not constitute an "investment contract" as defined by the Securities Acts, a term which, like the term "any . . . instrument commonly known as a security,'" involves investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others. Here, neither of the kinds of profits traditionally associated with securities were offered to respondents; instead, as indicated in the Information Bulletin, which stressed the "non-profit" nature of the project, the focus was upon the acquisition of a place to live. Pp. 421 U. S. 851-854.(c) Although deductible for tax purposes, the portion of rental charges applied to interest on the mortgage (benefits generally available to home mortgagors) does not constitute "profits," and, in any event, does not derive from the efforts of third parties. Pp. 421 U. S. 854-855.(d) Low rent attributable to state financial subsidies no more embodies income or profit attributes than other types of government subsidies. P. 421 U. S. 855.(e) Such income as might derive from Co-op City's leasing of commercial facilities within the housing project to be used to reduce tenant rentals (the prospect of which was never mentioned in the Information Bulletin) is too speculative and insubstantial to bring the entire transaction within the Securities Acts. These facilities were established not for profit purposes, but to make essential services available to residents of the huge complex. Pp. 421 U. S. 855-857.500 F.2d 1246, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which DOUGLAS and WHITE, JJ., joined, post, p. 421 U. S. 860. Page 421 U. S. 840

1973_71-1631

MR. JUSTICE STEWART delivered the opinion of the Court.Under § 73(d) of the Illinois Election Code, a person is prohibited from voting in the primary election of a political party if he has voted in the primary of any other party within the preceding 23 months. [Footnote 1] Appellee, Harriet G. Pontikes, is a qualified Chicago voter who voted in a Republican primary in February 1971; [Footnote 2] she wanted to vote in a March, 1972, Democratic primary, but was barred from doing so by this 23-month Page 414 U. S. 53 rule. [Footnote 3] She filed a complaint for declaratory and injunctive relief in the United States District Court for the Northern District of Illinois, alleging that § 7-43(d) unconstitutionally abridged her freedom to associate with the political party of her choice by depriving her of the opportunity to vote in the Democratic primary. A statutory three-judge court was convened, [Footnote 4] and held, one judge dissenting, that the 23-month rule is unconstitutional. 345 F. Supp. 1104. [Footnote 5] We noted probable jurisdiction of this appeal from that judgment. 411 U.S. 915. [Footnote 6]IAt the outset, we are met by the appellants' [Footnote 7] argument that the District Court should have abstained from adjudicating the constitutionality of the 23-month rule. They base this argument upon that portion of § 7-43(d) which provides that:"[P]articipation by a primary elector in a primary of a political party which, under the provisions of Section 7-2 of this Article, is a political party within Page 414 U. S. 54 a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party. . . ."Ill.Rev.Stat., c. 46, § 7-43(d). The appellants note that the February, 1971, Republican primary election in which Mrs. Pontikes voted involved only nominations for the offices of mayor, city clerk, and city treasurer of the city of Chicago. They claim that the state courts might interpret this 1971 primary to have been one of a "political party within a city . . . only," and thus outside the purview of the 23-month rule.As we stated in Lake Carriers' Assn. v. MacMullan, 406 U. S. 498, 406 U. S. 509:"Abstention is a "judge-made doctrine . . first fashioned in 1941 in Railroad Commission v. Pullman Co., 312 U. S. 496, [that] sanctions . . . escape [from immediate decision] only in narrowly limited special circumstances,' Propper v. Clark, 337 U. S. 472, 337 U. S. 492," Zwickler v. Koota, 389 U. S. 241, 389 U. S. 248 (1967), justifying "the delay and expense to which application of the abstention doctrine inevitably gives rise." England v. Medical Examiners, 375 U. S. 411, 375 U. S. 418 (1964). [Footnote 8]" The paradigm of the "special circumstances" that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question. Zwickler v. Koota, 389 U. S. 241, 389 U. S. 249; Harrison v. NAACP, 360 U. S. 167, 360 U. S. 176-177. Abstention in such Page 414 U. S. 55 circumstances not only serves to minimize federal-state friction, but also avoids premature and perhaps unnecessary constitutional adjudication. Harman v.Forssenius, 380 U. S. 528, 380 U. S. 534. But the doctrine of abstention "contemplates that deference to state court adjudication only be made where the issue of state law is uncertain." Ibid. Where, on the other hand, it cannot be fairly concluded that the underlying state statute is susceptible of an interpretation that might avoid the necessity for constitutional adjudication, abstention would amount to shirking the solemn responsibility of the federal courts to "guard, enforce, and protect every right granted or secured by the Constitution of the United States," Robb v. Connolly, 111 U. S. 624, 111 U. S. 637.We think that the Illinois statute involved in this case is not fairly susceptible of a reading that would avoid the necessity of constitutional adjudication. The appellants' argument -- that the February, 1971, Chicago Republican primary might be considered that of a "political party within a city . . . only" -- is foreclosed by the decision of the Illinois Supreme Court in Faherty v. Board of Election Comm'rs, 5 Ill. 2d 519, 126 N.E.2d 235. That decision made it clear that the kind of "local" primaries that are outside the scope of § 7-43(d) are simply those of "purely city . . . political part[ies]'" -- those parties entitled, under § 7-2 of the Illinois Election Code, tax make nominations for city offices only. Id. at 524, 126 N.E.2d at 238. [Footnote 9] Page 414 U. S. 56Since both the Democratic and Republican parties are, of course, entitled in Illinois to make nominations not only for city offices, but for congressional, state, and county offices as well, the Faherty court held that they were not within the statutory definition of "city" parties. It follows then, that, despite the fact that the February, 1971, Republican primary in which the appellee voted involved only nominations for offices within the city of Chicago, Mrs. Pontikes was still clearly barred by the 23-month rule from voting in the March, 1972, Democratic primary. [Footnote 10] The District Court was thus wholly justified in declining to abstain from deciding the constitutional validity of the 23-month rule, and it is to that issue that we now turn.IIThere can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of "orderly group Page 414 U. S. 57 activity" protected by the First and Fourteenth Amendments. NAACP v. Button, 371 U. S. 415, 371 U. S. 430; Bates v. Little Rock, 361 U. S. 516, 361 U. S. 522-523; NAACP v. Alabama, 357 U. S. 449, 357 U. S. 460-461. The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom. Williams v. Rhodes, 393 U. S. 23, 393 U. S. 30. Cf. United States v. Robel, 389 U. S. 258.To be sure, administration of the electoral process is a matter that the Constitution largely entrusts to the States. [Footnote 11] But, in exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections. See, e.g., Dunn v. Blumstein, 405 U. S. 330; Kramer v. Union School District, 395 U. S. 621; Carrington v. Rash, 380 U. S. 89. As the Court made clear in Williams v. Rhodes, supra, unduly restrictive state election laws may so impinge upon freedom of association as to run afoul of the First and Fourteenth Amendments. 393 U.S. at 393 U. S. 30. And see id. at 393 U. S. 35-41 (DOUGLAS, J., concurring); id. at 393 U. S. 41-48 (Harlan, J., concurring).There can be little doubt that § 7-43(d) substantially restricts an Illinois voter's freedom to change his political party affiliation. One who wishes to change his party registration must wait almost two years before his choice will be given effect. Moreover, he is forced to forgo participation in any primary elections occurring within the statutory 23-month hiatus. The effect of the Illinois statute is thus to "lock" the voter into his preexisting party affiliation for a substantial period of time following participation in any primary election, and each succeeding primary vote extends this period of confinement. Page 414 U. S. 58The 23-month rule does not, of course, deprive those in the appellee's position of all opportunities to associate with the political party of their choice. But neither did the state attempts to compel disclosure of NAACP membership lists in Bates v. Little Rock and NAACP v. Alabama work a total restriction upon the freedom of the organization's members to associate with each other. Rather, the Court found in those cases that the statutes under attack constituted a "substantial restraint" [Footnote 12] and a "significant interference" [Footnote 13] with the exercise of the constitutionally protected right of free association.The same is true of § 73(d). While the Illinois statute did not absolutely preclude Mrs. Pontikes from associating with the Democratic party, it did absolutely preclude her from voting in that party's 1972 primary election. Under our political system, a basic function of a political party is to select the candidates for public office to be offered to the voters at general elections. A prime objective of most voters in associating themselves with a particular party must surely be to gain a voice in that selection process. By preventing the appellee from participating at all in Democratic primary elections during the statutory period, the Illinois statute deprived her of any voice in choosing the party's candidates, and thus substantially abridged her ability to associate effectively with the party of her choice.IIIAs our past decisions have made clear, a significant encroachment upon associational freedom cannot be justified upon a mere showing of a legitimate state interest. Bates v. Little Rock, supra, at 361 U. S. 524; NAACP v. Alabama, supra, at 357 U. S. 463. For even when Page 414 U. S. 59 pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty. Dunn v. Blumstein, 405 U.S. at 405 U. S. 343. "Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." NAACP v. Button, 371 U.S. at 371 U. S. 438. If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties. Shelton v. Tucker, 364 U. S. 479, 364 U. S. 488.The appellants here urge that the 23-month rule serves the purpose of preventing "raiding" -- the practice whereby voters in sympathy with one party vote in another's primary in order to distort that primary's results. It is said that our decision in Rosario v. Rockefeller, 410 U. S. 752, recognized the state interest in inhibiting "raiding," and upheld the constitutional validity of legislation restricting a voter's freedom to change parties, enacted as a means of serving that interest.It is true, of course, that the Court found no constitutional infirmity in the New York delayed-enrollment statute [Footnote 14] under review in Rosario. That law required a voter to enroll in the party of his choice at least 30 days before a general election in order to be eligible to vote in the next party primary, and thus prevented a change in party affiliation during the approximately 11 months between the deadline and the primary election. [Footnote 15] It is also true that the Court recognized in Rosario that a State may have a legitimate interest in seeking to curtail "raiding," since that practice may Page 414 U. S. 60 affect the integrity of the electoral process. Id. at 410 U. S. 761. But it does not follow from Rosario that the Illinois statutory procedures also pass muster under the Fourteenth Amendment, for the Illinois Election Code differs from the New York delayed enrollment law in a number of important respects.The New York statute at issue in Rosario did not prevent voters from participating in the party primary of their choice; it merely imposed a time limit on enrollment. Under the New York law, a person who wanted to vote in a different party primary every year was not precluded from doing so; he had only to meet the requirement of declaring his party allegiance 30 days before the preceding general election. The New York law did not have the consequence of "locking" a voter into an unwanted party affiliation from one election to the next; any such confinement was merely the result of the elector's voluntary failure to take timely measures to enroll. Id. at 410 U. S. 757-759. The Court therefore concluded that the New York delayed enrollment law did not prevent voters "from associating with the political party of their choice." Id. at 410 U. S. 762. And see id. at 410 U. S. 758 and n. 8.The basic difference in the Illinois law is obvious. Since the appellee here voted in the 1971 Republican primary, the state law absolutely precluded her from participating in the 1972 Democratic primary. Unlike the petitioners in Rosario, whose disenfranchisement was caused by their own failure to take timely measures to enroll, there was no action that Mrs. Pontikes could have taken to make herself eligible to vote in the 1972 Democratic primary. [Footnote 16] The Illinois law, unlike that of Page 414 U. S. 61 New York, thus "locks" voters into a preexisting party affiliation from one primary to the next, and the only way to break the "lock" is to forgo voting in any primary for a period of almost two years.In other words, while the Court held in Rosario that the New York delayed enrollment scheme did not prevent voters from exercising their constitutional freedom to associate with the political party of their choice, the Illinois 23-month rule clearly does just that. It follows that the legitimate interest of Illinois in preventing "raiding" cannot justify the device it has chosen to effect its goal. For that device conspicuously infringes upon basic constitutional liberty. Far from supporting the validity of the Illinois legislation, the Court's decision in Rosario suggests that the asserted state interest can be attained by "less drastic means," which do not unnecessarily burden the exercise of constitutionally protected activity.We conclude, therefore, that § 73(d) of the Illinois Election Code unconstitutionally infringes upon the right of free political association protected by the First and Fourteenth Amendments. The judgment of the District Court is accordinglyAffirmed

U.S. Supreme CourtKusper v. Pontikes, 414 U.S. 51 (1973)Kusper v. PontikesNo. 71-1631Argued October 9, 1973Decided November 19, 1973414 U.S. 51SyllabusAppellee, a qualified Chicago voter who voted in a February 1971 Republican primary involving nominations for municipal officers, challenges the constitutionality of § 7-43(d) of the Illinois Election Code, under which she was barred from voting in a March 1972 Democratic primary. Section 7-43(d) prohibits a person from voting in the primary election of a political party if he has voted in the primary of any other party within the preceding 23 months, an exception being made if the primary is of a "political party within a city . . . only." Appellants contended, inter alia, that the three-judge District Court, which held the statute invalid, should have abstained, because the state courts might have found the statutory exception applicable to the 1971 primary.Held:1. The District Court did not err in declining to abstain from making a constitutional ruling in view of an Illinois Supreme Court adjudication confining the statutory exception to political parties entitled to nominate only for city offices and making it inapplicable to the Democratic and Republican parties. Appellee is thus not relieved of the bar of the 23-month rule. Pp. 414 U. S. 53-56.2. Section 7-43(d) unconstitutionally infringes upon the right of free political association protected by the First and Fourteenth Amendments by "locking" the voter in his preexisting party affiliation for a substantial period of time following his participation in any primary election, and the State's legitimate interest in preventing party "raiding" cannot justify the substantial restraint of the 23-month rule. Rosario v. Rockefeller, 410 U. S. 752, distinguished. Pp. 414 U. S. 56-61.345 F. Supp. 1104, affirmed.STEWART, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, WHITE, MARSHALL, and POWELL, JJ., joined. BURGER, C.J., concurred in the result. BLACKMUN, J., filed a dissenting opinion, post, p. 414 U. S. 61. REHNQUIST, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 414 U. S. 65. Page 414 U. S. 52

1995_95-191

and Branti, supra, at 518-520. There is no basis for rejecting that reasoning in this context and drawing a line excluding independent contractors from the First Amendment safeguards of political association afforded to employees. Pp.720-726.(c) The lower courts, upon such further proceedings as are deemed appropriate, should decide whether the case is governed by the ElrodBranti rule or by the Pickering rule. P. 726.47 F.3d 883, reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined, ante, p. 686.Harvey Grossman argued the cause for petitioners. With him on the briefs were Jane M. Whicher, Barbara P. O'Toole, Steven R. Shapiro, Michael P. McGovern, Colleen K. Connell, and Marc 0. Beem.Gary M. Feiereisel argued the cause for respondents.With him on the brief was Frank P. Kasbohm. *JUSTICE KENNEDY delivered the opinion of the Court. Government officials may not discharge public employees for refusing to support a political party or its candidates, unless political affiliation is a reasonably appropriate requirement for the job in question. Elrod v. Burns, 427 U. S. 347 (1976); Branti v. Finkel, 445 U. S. 507 (1980). We must decide whether the protections of Elrod and Branti extend to an independent contractor, who, in retaliation for refusing to comply with demands for political support, has a government contract terminated or is removed from an official list of contractors authorized to perform public services. Although the government has broad discretion in formulating its contracting policies, we hold that the protections of Elrod and* Robert A. Hirsch filed a brief for the Towing & Recovery Association of America, Inc., as amicus curiae urging reversal.Jeffrey D. Colman, Edward J. Lewis II, and David Jimenez-Ekman filed a brief for Illinois State Officials as amicus curiae urging affirmance.715Branti extend to an instance like the one before us, where government retaliates against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance.IThe suit having been dismissed by the District Court for failure to state a claim, the complaint's factual allegations are taken as true. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 164 (1993). John Gratzianna is the owner and operator of O'Hare Truck Service, which provides towing services in Cook and DuPage Counties, Illinois. Gratzianna and his company are petitioners here, and we sometimes refer to them as O'Hare.The city of Northlake, a respondent in this Court, coordinates towing services through its Police Department and for at least 30 years has maintained a rotation list of available towing companies. When the police receive a tow request, they call the company next on the list to provide the service. Until the events recounted here, the city's policy had been to remove a tow truck operator from the rotation list only for cause. O'Hare had been on the list since 1965, performing towing services at the city's request. O'Hare and the city's former Mayor, Gene Doyle, had a mutual understanding that the city would maintain O'Hare's place on the rotation list so long as O'Hare provided good service. In 1989, soon after being elected Northlake's new Mayor, respondent Reid Paxson told Gratzianna he was pleased with O'Hare's work and would continue using and referring its services.Four years later, when Paxson ran for reelection, his campaign committee asked Gratzianna for a contribution, which Gratzianna refused to make. Gratzianna instead supported the campaign of Paxson's opponent and displayed the opponent's campaign posters at O'Hare's place of business. Soon after, O'Hare was removed from the rotation list. We shall716assume, as the complaint alleges, that the removal was in retaliation for Gratzianna's stance in the campaign. Petitioners allege the retaliation caused them to lose substantial income.O'Hare and Gratzianna sued in the United States District Court for the Northern District of Illinois, alleging infringement of First Amendment rights in violation of Rev. Stat. § 1979, 42 U. S. C. § 1983. In conformity with binding Seventh Circuit precedent, which does not extend Elrod and Branti to independent contractors, see, e. g., Downtown Auto Parks, Inc. v. Milwaukee, 938 F.2d 705, cert. denied, 502 U. S. 1005 (1991), the District Court dismissed the complaint, 843 F. Supp. 1231 (1994). The Court of Appeals for the Seventh Circuit affirmed, adhering to the view that "it should be up to the Supreme Court to extend Elrod." 47 F.3d 883, 885 (1995). (The Court of Appeals also affirmed dismissal of O'Hare's claim that respondents' failure to give it notice of removal from the list or provide a hearing on the matter deprived O'Hare of due process of law. That ruling is not before us.)The Courts of Appeals take different positions concerning Elrod and Branti's applicability to independent contractors. Compare 47 F.3d 883 (1995) (opinion below); Horn v. Kean, 796 F.2d 668 (CA3 1986) (en bane); Sweeney v. Bond, 669 F. 2d 542 (CA8), cert. denied sub nom. Schenberg v. Bond, 459 U. S. 878 (1982), with Blackburn v. Marshall, 42 F.3d 925 (CA5 1995); Abercrombie v. Catoosa, 896 F.2d 1228 (CAlO 1990). We granted certiorari to resolve the conflict, 516 U. S. 1020, and now reverse.IIThe Court has rejected for decades now the proposition that a public employee has no right to a government job and so cannot complain that termination violates First Amendment rights, a doctrine once captured in Justice Holmes' aphorism that although a policeman "may have a constitutional right to talk politics ... he has no constitutional right to be717a policeman," McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N. E. 517 (1892). A State may not condition public employment on an employee's exercise of his or her First Amendment rights. See, e. g., Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968); Perry v. Sindermann, 408 U. S. 593 (1972). See also Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 674-675 (collecting cases). As we have said: "[I]f the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to 'produce a result which [it] could not command directly.' Such interference with constitutional rights is impermissible." Perry v. Sindermann, supra, at 597, quoting Speiser v. Randall, 357 U. S. 513, 526 (1958). Absent some reasonably appropriate requirement, government may not make public employment subject to the express condition of political beliefs or prescribed expression.In Elrod v. Burns, 427 U. S. 347 (1976), we considered whether to apply the principles of the unconstitutional conditions cases to public employees dismissed on account of their political association. In keeping with local tradition, a newly elected county sheriff had discharged non-civil-service employees because they were not members of his political party. It was by no means self-evident whether our First Amendment precedents applied, for as Justice Powell explained in dissent, id., at 377-387, the patronage practices at issue had been sanctioned by history and had been thought by some to contribute to the effective operation of political parties. See also Branti v. Finkel, 445 U. S., at 522, n. 1, 527-532 (Powell, J., dissenting); Rutan v. Republican Party of Ill., 497 U. S. 62, 104-109 (1990) (SCALIA, J., dissenting). If indeed those patronage practices fortify the party system, they may serve important First Amendment interests, since718parties promote and generate political discourse, see, e. g., Buckley v. Valeo, 424 U. S. 1, 14-15 (1976) (per curiam); Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 121-122 (1981).We need not inquire, however, whether patronage promotes the party system or serves instead to entrench parties in power, see Elrod v. Burns, supra, at 364-373 (plurality opinion); Rutan v. Republican Party of Ill., supra, at 88-89, n. 4 (STEVENS, J., concurring), for Elrod and Branti establish that patronage does not justify the coercion of a person's political beliefs and associations. Although no opinion in Elrod commanded a majority of the Court, five Justices found common ground in the proposition that subjecting a nonconfidential, nonpolicymaking public employee to penalty for exercising rights of political association was tantamount to an unconstitutional condition under Perry v. Sindermann, supra. See Elrod v. Burns, supra, at 359 (plurality opinion) ("The threat of dismissal for failure to provide [support for the favored political party] unquestionably inhibits protected belief and association, and dismissal for failure to provide support only penalizes its exercise"); 427 U. S., at 375 (Stewart, J., concurring in judgment) ("The single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot").Four Terms later, in Branti v. Finkel, supra, we reaffirmed Elrod's common holding and said government termination of a public employee on account of his political affiliation brings our unconstitutional conditions cases into play, for "[i]f the First Amendment protects a public employee from discharge based on what he has said, it must also protect him from discharge based on what he believes," 445 U. S., at 515. We also modified the standard, announced in the two opinions supporting the Elrod judgment, for assess-719ing when party affiliation, consistent with the First Amendment, may be an acceptable basis for terminating a public employee: "[T]he ultimate inquiry is not whether the label 'policymaker' or 'confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." 445 U. S., at 518.Our cases call for a different, though related, inquiry where a government employer takes adverse action on account of an employee or service provider's right of free speech. There, we apply the balancing test from Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., supra. See generally Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 675-678. Elrod and Branti involved instances where the raw test of political affiliation sufficed to show a constitutional violation, without the necessity of an inquiry more detailed than asking whether the requirement was appropriate for the employment in question. There is an advantage in so confining the inquiry where political affiliation alone is concerned, for one's beliefs and allegiances ought not to be subject to probing or testing by the government. It is true, on the other hand, as we stated at the outset of our opinion, supra, at 714, that the inquiry is whether the affiliation requirement is a reasonable one, so it is inevitable that some case-by-case adjudication will be required even where political affiliation is the test the government has imposed. A reasonableness analysis will also accommodate those many cases, perhaps including the one before us, where specific instances of the employee's speech or expression, which require balancing in the Pickering context, are intermixed with a political affiliation requirement. In those cases, the balancing Pickering mandates will be inevitable. This case-by-case process will allow the courts to consider the necessity of according to the government the discretion it requires in the administration720and awarding of contracts over the whole range of public works and the delivery of governmental services.The Court of Appeals, based on its understanding of the pleadings, considered this simply an affiliation case, and held, based on Circuit precedent, there was no constitutional protection for one who was simply an outside contractor. We consider the case in those same terms, but we disagree with the Court of Appeals' conclusion.IIIThere is no doubt that if Gratzianna had been a public employee whose job was to perform tow truck operations, the city could not have discharged him for refusing to contribute to Paxson's campaign or for supporting his opponent. In Branti, we considered it settled that to fire a public employee as a penalty for refusing a request for political and financial support would impose an unconstitutional condition on government employment. See 445 U. S., at 516. Respondents insist the principles of Elrod and Branti have no force here, arguing that an independent contractor's First Amendment rights, unlike a public employee's, must yield to the government's asserted countervailing interest in sustaining a patronage system. We cannot accept the proposition, however, that those who perform the government's work outside the formal employment relationship are subject to what we conclude is the direct and specific abridgment of First Amendment rights described in this complaint. As respondents offer no justification for their actions, save for insisting on their right to condition a continuing relationship on political fealty, we hold that the complaint states an actionable First Amendment claim.The complaint alleges imposition of a burden on an individual's right of political association, a concerted effort to coerce its relinquishment. O'Hare was not part of a constituency that must take its chance of being favored or ignored in the larger political process-for example, by residing or doing721business in a region the government rewards or spurns in the construction of public works. Gratzianna instead was targeted with a specific demand for political support. When Gratzianna refused, the city terminated a relationship that, based on longstanding practice, he had reason to believe would continue. We see nothing to distinguish this from the coercion exercised in our other unconstitutional conditions cases. See, e. g., Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967) (teaching position conditioned upon nonmembership in "subversive" organizations); Perry v. Sindermann, 408 U. S. 593 (1972) (teaching position conditioned upon not criticizing college administration). Had Paxson or his backers solicited the contribution as a quid pro quo for not terminating O'Hare's arrangement with the city, they might well have violated criminal bribery statutes. Cf. Ill. Compo Stat., ch. 720, §§ 5/33-1, 5/33-3; ch. 65, § 5/4-8-2 (1994). That Paxson may have steered clear of criminal liability, however, does little to diminish the attempted coercion of Gratzianna's political association, enforced by a tangible punishment. Our cases make clear that the government may not coerce support in this manner, unless it has some justification beyond dislike of the individual's political association. See, e. g., Branti v. Finkel, 445 U. S., at 516-517.Respondents say this case is different because it involves a claim by an independent contractor. We are not persuaded. A rigid rule "giv[ing] the government carte blanche to terminate independent contractors for exercising First Amendment rights ... would leave [those] rights unduly dependent on whether state law labels a government service provider's contract as a contract of employment or a contract for services, a distinction which is at best a very poor proxy for the interests at stake." Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 679. It is true that the distinction between employees and independent contractors has deep roots in our legal tradition, see, e. g., 9 W. Jaeger,722Williston on Contracts § 1012A (3d ed. 1967); 1 Restatement of Agency §§ 2, 220 (1933), and often serves as a line of demarcation for differential treatment of individuals who otherwise may be situated in similar positions, see, e. g., Community for Creative Non-Violence v. Reid, 490 U. S. 730 (1989); Nationwide Mut. Ins. Co. v. Darden, 503 U. S. 318 (1992); 2 Restatement (Second) of Torts § 409 (1964). We see no reason, however, why the constitutional claim here should turn on the distinction, which is, in the main, a creature of the common law of agency and torts. Recognizing the distinction in these circumstances would invite manipulation by government, which could avoid constitutional liability simply by attaching different labels to particular jobs, Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 679. The fact of interference here is not altered by the circumstance that the victims are not classified as employees.Our conclusion is in accord with Lefkowitz v. Turley, 414 U. S. 70 (1973), where independent contractor status did not suffice to allow government to insist upon a waiver of the Fifth Amendment's privilege against self-incrimination. After reviewing our rulings extending the Fifth Amendment's privilege to government employees, we said that "[w]e fail to see a difference of constitutional magnitude between the threat of job loss to an employee of the State, and a threat of loss of contracts to a contractor." Id., at 83.Some Courts of Appeals, refusing to extend Elrod and Branti to independent contractors, find "a difference of constitutional magnitude" in the relative degree to which employees and contractors depend on government sources for their income. See LaFalce v. Houston, 712 F.2d 292, 294 (CA7 1983) ("An independent contractor would tend we imagine to feel a somewhat lesser sense of dependency"), cert. denied, 464 U. S. 1044 (1984); Horn v. Kean, 796 F. 2d, at 675 (same). Respondents present no convincing data to support this speculation, however, and we doubt it is true for many service providers who come under the formal clas-723sification of "independent contractor," cf., e. g., Havekost v. United States Dept. of Navy, 925 F.2d 316 (CA9 1991) (worker was licensed grocery bagger at Navy commissary). The only statistics presented to us in the briefs are relevant to tow truck services, and these data point the other way. A national association of towing and recovery service operators, appearing as amicus, estimates that 75 percent of towing companies provide services in connection with government requests, the referrals generating between 30 and 60 percent of their gross revenues. Brief for Towing & Recovery Assn. of America, Inc., as Amicus Curiae 9. Petitioners, furthermore, allege a loss of substantial income due to their termination.Perhaps some contractors are so independent from government support that the threat of losing business would be ineffective to coerce them to abandon political activities. The same might be true of certain public employees, however; they, too, might find work elsewhere if they lose their government jobs. If results were to turn on these sorts of distinctions, courts would have to inquire into the extent to which the government dominates various job markets as employer or as contractor. We have been, and we remain, unwilling to send courts down that path. See, e. g., Perry v. Sindermann, supra, at 597-598. Courts are not well suited to the task of measuring levels of employee dependence, but there is a more fundamental concern. Independent contractors, as well as public employees, are entitled to protest wrongful government interference with their rights of speech and association.Some Courts of Appeals surmise that independent contractors doing business with the government "are political hermaphrodites," LaFalce v. Houston, supra, at 294, who find it in their self-interest to stay on good terms with both major political parties and so are not at great risk of retaliation for political association. The facts here, if the allegations in the complaint are true, indicate this dubious course724of action may not be followed by many small independent contractors who are either unable or unwilling to maintain close ties to all the organized political forces in their communities. In all events, even if some independent contractors adjust to their precarious position by currying favor with diverse political parties, the question here concerns coercive government action taken against those who do not. That some citizens find a way to mitigate governmental overreaching, or refrain from complaining, does not excuse wrongs done to those who exercise their rights.Respondents argue that any decision in O'Hare's favor will lead to numerous lawsuits, which will interfere with the sound administration of government contracting. We have little reason to accept the assessment. The amicus brief filed on behalf of respondents' position represents that in the six years since our opinion in Rutan v. Republican Party of Ill., 497 U. S. 62 (1990), which extended Elrod and Branti to public employment promotion, transfer, recall, and hiring decisions based on political affiliation, only 18 suits alleging First Amendment violations in employment decisions have been filed against Illinois state officials, Brief for Illinois State Officials as Amicus Curiae 3. Furthermore, we have found no reported case in the Tenth Circuit involving a First Amendment patronage claim by an independent contractor in the six years since its Court of Appeals first recognized such claims, see Abercrombie v. Catoosa, 896 F.2d 1228 (1990). We have no reason to believe that governments cannot bear a like burden in defending against suits alleging the denial of First Amendment freedoms to public contractors, and we doubt that our decision today will lead to the imposition of a more extensive burden.Cities and other governmental entities make a wide range of decisions in the course of contracting for goods and services. The Constitution accords government officials a large measure of freedom as they exercise the discretion inherent725in making these decisions. Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 674. Interests of economy may lead a governmental entity to retain existing contractors or terminate them in favor of new ones without the costs and complexities of competitive bidding. A government official might offer a satisfactory justification, unrelated to the suppression of speech or associational rights, for either course of action. The first may allow the government to maintain stability, reward good performance, deal with known and reliable persons, or ensure the uninterrupted supply of goods or services; the second may help to stimulate competition, encourage experimentation with new contractors, or avoid the appearance of favoritism. These are choices and policy considerations that ought to remain open to government officials when deciding to contract with some firms and not others, provided of course the asserted justifications are not the pretext for some improper practice. In view of the large number of legitimate reasons why a contracting decision might be made, fending off baseless First Amendment lawsuits should not consume scarce government resources. If the government terminates its affiliation with a service provider for reasons unrelated to political association, Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977), as, for example, where the provider is unreliable, or if the service provider's political "affiliation is an appropriate requirement for the effective performance" of the task in question, Branti v. Finkel, 445 U. S., at 518, there will be no First Amendment violation.Respondents' theory, in essence, is that no justification is needed for their actions, since government officials are entitled, in the exercise of their political authority, to sever relations with an outside contractor for any reason including punishment for political opposition. Government officials may indeed terminate at-will relationships, unmodified by any legal constraints, without cause; but it does not follow726that this discretion can be exercised to impose conditions on expressing, or not expressing, specific political views, see Perry v. Sindermann, 408 U. S., at 597.The absolute right to enforce a patronage scheme, insisted upon by respondents as a means of retaining control over independent contractors, Brief for Respondents 13, and satisfying government officials' concerns about reliability, Tr. of Oral Arg. 34-39, has not been shown to be a necessary part of a legitimate political system in all instances. This was the determination controlling our decisions in Elrod, 427 U. S., at 365-368, 372-373 (plurality opinion), and Branti, supra, at 518-520, and we see no basis for rejecting that reasoning in this context. We decline to draw a line excluding independent contractors from the First Amendment safeguards of political association afforded to employees.IVUpon such further proceedings as are deemed appropriate by the Court of Appeals or the District Court, including upon motion for summary judgment if there is no genuine issue as to material facts, the courts on remand should decide whether the case is governed by the Elrod-Branti rule or by the Pickering rule.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, 1995SyllabusO'HARE TRUCK SERVICE, INC., ET AL. v. CITY OF NORTHLAKE ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo.95-191. Argued March 20, 1996-Decided June 28,1996Respondent city maintains a rotation list of available companies to perform towing services at its request. Until the events recounted here, the city's policy had been to remove companies from the list only for cause. Petitioner O'Hare Truck Service, Inc., was removed from the list after its owner, petitioner Gratzianna, refused to contribute to respondent mayor's reelection campaign and instead supported his opponent. Alleging that the removal was in retaliation for Gratzianna's campaign stance and caused petitioners to lose substantial income, petitioners filed this suit under 42 U. S. C. § 1983. The District Court dismissed the complaint in conformity with Seventh Circuit precedent that Elrod v. Burns, 427 U. S. 347 (plurality opinion), and Branti v. Finkel, 445 U. S. 507-in which the Court held that government officials may not discharge public employees for refusing to support a political party or its candidates, unless political affiliation is an appropriate requirement for the job in question-do not extend to independent contractors. The Seventh Circuit affirmed.Held: The protections of Elrod and Branti extend to an instance where government retaliates against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance. Pp. 716-726.(a) In assessing when party affiliation, consistent with the First Amendment, may be an acceptable basis for terminating a public employee, "the ultimate inquiry is not whether the label 'policymaker' or 'confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, supra, at 518. A different, though related, inquiry, the balancing test from Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, is called for where a government employer takes adverse action on account of an employee or service provider's right offree speech. In Elrod and Branti, the raw test of political affiliation sufficed to show a constitutional violation. However, since the inquiry is whether the affiliation requirement is reasonable, it is inevitable that some case-by-case adjudication will be required even713where political affiliation was the test the government imposed. The analysis will also accommodate cases where instances of the employee's speech or expression are intermixed with a political affiliation requirement. Pp.716-720.(b) Despite respondents' argument that the principles of Elrod and Branti have no force here because an independent contractor's First Amendment rights, unlike a public employee's, must yield to the government's asserted countervailing interest in sustaining a patronage system, this Court cannot accept the proposition that those who perform the government's work outside the formal employment relationship are subject to the direct and specific abridgment of First Amendment rights described in petitioners' complaint. The government may not coerce support in the manner petitioners allege, unless it has some justification beyond dislike of the individual's political association. As respondents offer no other justification for their actions, the complaint states a First Amendment claim. Allowing the constitutional claim to turn on a distinction between employees and independent contractors would invite manipulation by government, which could avoid constitutional liability simply by attaching different labels to particular jobs, Board of Comm'rs, Wabaunsee Cty. v. Umbehr, ante, at 679. Accord, Lefkowitz v. Turley, 414 U. S. 70. Respondents present no convincing data to support their speculation that a difference of constitutional magnitude exists because independent contractors are less dependent on the government for income than employees are. There is little reason to suppose that a decision in petitioners' favor will lead to numerous lawsuits. While government officials may terminate at-will relationships, unmodified by any legal constraints, without cause, it does not follow that this discretion can be exercised to impose conditions on expressing, or not expressing, specific political views, see Perry v. Sindermann, 408 U. S. 593, 597. In view of the large number of legitimate reasons why a contracting decision might be made, fending off baseless First Amendment lawsuits should not consume scarce government resources. If the government terminates its affiliation with a service provider for reasons unrelated to political association, Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287, as, for example, where the provider is unreliable, or if the service provider's political "affiliation is an appropriate requirement for the effective performance" of the task in question, Branti, supra, at 518, there will be no First Amendment violation. The absolute right to enforce a patronage scheme as a means of retaining control over independent contractors and satisfying government officials' concerns about reliability has not been shown to be a necessary part of a legitimate political system in all instances. This was the determination controlling the Court's decisions in Elrod, supra, at 365-368, 372-373,714Full Text of Opinion

1984_83-2143

CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether respondent's rights under the Confrontation Clause were violated by the introduction of the confession of an accomplice for the nonhearsay purpose of rebutting respondent's testimony that his own confession was coercively derived from the accomplice's statement.IBen Tester was last seen alive on August 26, 1981, as he walked toward his home in Hampton, Tennessee. The next day, Tester's body was found hanging by a nylon rope from an Page 471 U. S. 411 apple tree in his yard. Tester's house had been ransacked, and it appeared that Tester had struggled with his assailants.Respondent, a neighbor of Tester, was arrested and charged with the murder. At respondent's trial, which was severed from the trials of others charged with the crime, the State relied on a detailed confession that respondent made during an interview with Sheriff Papantoniou and agents of the Tennessee Bureau of Investigation on September 17, 1981. According to respondent's confession, he and Clifford Peele decided to burglarize Ben Tester's house when Tester was away at church. While respondent, Peele and two others were in the house, however, Tester returned home and surprised the intruders. Peele threw Tester to the floor and declared that they were going to "string him up." Working toward that end, respondent tore a sheet to make a gag for Tester's mouth. Respondent then watched as the others carried Tester out of the house, placed him in the back of a pickup truck, put a rope around his neck, tied the rope to a tree, and pushed him off the tailgate. [Footnote 1]Respondent testified at trial that he did not burglarize Tester's house, nor participate in the murder. He also maintained that his September 17 confession was coerced. The confession, respondent testified, was derived from a written statement that Peele had previously given the Sheriff. Respondent claimed that Sheriff Papantoniou read from Peele's statement and directed him to say the same thing.In rebuttal, the State called Sheriff Papantoniou to testify about the September 17 interview. The Sheriff denied that respondent was read Peele's statement or pressured to repeat the terms of Peele's confession. To corroborate this testimony, and to rebut respondent's claim that his own confession Page 471 U. S. 412 was a coerced imitation, the Sheriff read Peele's confession to the jury. [Footnote 2] Before Peele's statement was received, however, the trial judge twice informed the jury that it was admitted "not for the purpose of proving the truthfulness of his statement, but for the purpose of rebuttal only." App. 292, 293.Although Peele's statement was generally consistent with Street's confession, there were some differences. For instance, Peele portrayed respondent as an active participant in Tester's hanging, and respondent's statement contained factual details that were not found in Peele's confession. [Footnote 3] Following the reading of Peele's confession, the prosecutor elicited from the Sheriff testimony emphasizing the differences between the confessions.The prosecutor referred to Peele's confession in his closing argument to dispute respondent's claim that he had been forced to repeat Peele's statement. The prosecutor noted details of the crime that appeared solely in respondent's confession and argued that respondent knew these facts because he participated in the murder. In instructing the jury, the trial judge stated:"The Court has allowed an alleged confession or statement by Clifford Peele to be read by a witness.""I instruct you that such can be considered by you for rebutable [sic] purposes only, and you are not to consider the truthfulness of the statement in any way whatsoever."Id. at 350.Respondent was found guilty and sentenced to life in prison. The Court of Criminal Appeals of Tennessee, ruling that the introduction of Peele's confession denied respondent his Sixth Amendment right to confront witnesses, reversed. Page 471 U. S. 413 674 S.W.2d 741 (1984). The court noted that Peele's confession was not hearsay evidence, because it was not admitted to prove the truth of Peele's assertions. Nevertheless, the court believed that the jury was left with the impression "that the confession was a true rendition of events on the night of the homicide." Id. at 745. It held, therefore, that "admission of [Peele's] confession for any purpose constitutes a denial of [respondent's] fundamental right to cross-examine those witnesses against him." Ibid. [Footnote 4]We granted certiorari. 469 U.S. 929 (1984). We reverse.AThis case is significantly different from the Court's previous Confrontation Clause cases such as Ohio v. Robert, 448 U. S. 56 (1980), Dutton v. Evans, 400 U. S. 74 (1970), and Bruton v. United State, 391 U. S. 123 (1968). Confrontation Clause issues arose in Robert and Dutton because hearsay evidence was admitted as substantive evidence against the defendants. 448 U.S. at 448 U. S. 77; 400 U.S. at 400 U. S. 79. And in Bruton, the Court considered whether a codefendant's confession, which was inadmissible hearsay as to Bruton, could be admitted into evidence accompanied by a limiting instruction. 391 U.S. at 391 U. S. 135-136.In this case, by contrast, the prosecutor did not introduce Peele's out-of court confession to prove the truth of Peele's assertions. Thus, as the Court of Criminal Appeals acknowledged, Peele's confession was not hearsay under traditional rules of evidence. 674 S.W.2d at 744; accord, Fed.Rule Evid. 801(c). In fact, the prosecutor's nonhearsay use of Peele's confession was critical to rebut respondent's testimony that his own confession was derived from Peele's. Before the details of Peele's confession were admitted, the jury Page 471 U. S. 414 could evaluate the reliability of respondent's confession only by weighing and comparing the testimony of respondent and Sheriff Papantoniou. Once Peele's statement was introduced, however, the jury could compare the two confessions to determine whether it was plausible that respondent's account of the crime was a coerced imitation. [Footnote 5]The nonhearsay aspect of Peele's confession -- not to prove what happened at the murder scene but to prove what happened when respondent confessed -- raises no Confrontation Clause concerns. The Clause's fundamental role in protecting the right of cross-examination, see Douglas v. Alabama, 380 U. S. 415, 380 U. S. 418 (1965), was satisfied by Sheriff Papantoniou's presence on the stand. If respondent's counsel doubted that Peele's confession was accurately recounted, he was free to cross-examine the Sheriff. By cross-examination, respondent's counsel could also challenge Sheriff Papantoniou's testimony that he did not read from Peele's statement and direct respondent to say the same thing. In short, the State's rebuttal witness against respondent was not Peele, but Sheriff Papantoniou. See generally Anderson v. United States, 417 U. S. 211, 417 U. S. 219-220 (1974).BThe only similarity to Bruton is that Peele's statement, like the codefendant's confession in Bruton, could have been misused by the jury. If the jury had been asked to infer that Peele's confession proved that respondent participated in the murder, then the evidence would have been hearsay; and because Peele was not available for cross-examination, Confrontation Clause concerns would have been implicated. The jury, however, was pointedly instructed by the trial court "not to consider the truthfulness of [Peele's] statement in any Page 471 U. S. 415 way whatsoever." App. 350. Thus as in Bruton, the question is reduced to whether, in light of the competing values at stake, we may rely on the "crucial assumption'" that the jurors followed "`the instructions given them by the trial judge.'" Marshall v. Lonberger, 459 U. S. 422, 459 U. S. 438, n. 6 (1983) (quoting Parker v. Randolph, 442 U. S. 62, 442 U. S. 73 (1979) (REHNQUIST, J.)). [Footnote 6]The State's most important piece of substantive evidence was respondent's confession. When respondent testified that his confession was a coerced imitation, therefore, the focus turned to the State's ability to rebut respondent's testimony. Had the prosecutor been denied the opportunity to present Peele's confession in rebuttal so as to enable the jury to make the relevant comparison, the jury would have been impeded in its task of evaluating the truth of respondent's testimony and handicapped in weighing the reliability of his confession. Such a result would have been at odds with the Confrontation Clause's very mission -- to advance "the accuracy of the truth-determining process in criminal trials." Dutton v. Evans, supra, at 400 U. S. 89.Moreover, unlike the situation in Bruton, supra, at 391 U. S. 134, there were no alternatives that would have both assured the integrity of the trial's truth-seeking function and eliminated the risk of the jury's improper use of evidence. [Footnote 7] We do not agree with the Court of Criminal Appeals' suggestion that Peele's confession could have been edited to reduce the risk of jury misuse "without detracting from the alleged purpose for which the confession was introduced." 674 S.W.2d at 745; see generally Bruton, supra, at 391 U. S. 134, n. 10. If all of Peele's references to respondent had been deleted, Page 471 U. S. 416 it would have been more difficult for the jury to evaluate respondent's testimony that his confession was a coerced imitation of Peele's. Indeed, such an approach would have undercut the theory of defense by creating artificial differences between respondent's and Peele's confessions.Respondent correctly notes that Sheriff Papantoniou could have pointed out the differences between the two statements without reading Peele's confession. But such a rebuttal presentation was not the only option constitutionally open. After respondent testified that his confession was based on Peele's, the Sheriff read Peele's confession to the jury and answered questions that emphasized the differences. In closing argument, the prosecutor recited the details that appeared only in respondent's confession, and argued that respondent knew these facts because he participated in the murder. The whole of the State's rebuttal, therefore, was designed to focus the jury's attention on the differences, not the similarities between the two confessions.Finally, we reject the Court of Criminal Appeals' implicit holding that the State was required to call Peele to testify or to forgo effective rebuttal of respondent's testimony. 674 S.W.2d at 745. Because Peele's confession was introduced to refute respondent's claim of coercive interrogation, Peele's testimony would not have made the State's point. And respondent's cross-examination of Peele would have been ineffective to undermine the prosecutor's limited purpose in introducing Peele's confession. It was appropriate that, instead of forcing the State to call a witness who could offer no relevant testimony on the immediate issue of coercion, [Footnote 8] the trial judge left to respondent the choice whether to call Peele. [Footnote 9] Page 471 U. S. 417IIIThe State introduced Peele's confession for the legitimate, nonhearsay purpose of rebutting respondent's testimony that his own confession was a coerced "copy" of Peele's statement. The jury's attention was directed to this distinctive and limited purpose by the prosecutor's questions and closing argument. In this context, we hold that the trial judge's instructions were the appropriate way to limit the jury's use of that evidence in a manner consistent with the Confrontation Clause. Accordingly, the judgment of the Court of Criminal Appeals isReversed

U.S. Supreme CourtTennessee v. Street, 471 U.S. 409 (1985)Tennessee v. StreetNo. 83-2143Argued March 18, 1985Decided May 13, 1985471 U.S. 409SyllabusAt respondent's Tennessee state court trial for murder, the State relied on a confession that respondent made to the Sheriff. Respondent testified that his confession was coercively derived from an accomplice's written confession, claiming that the Sheriff read from the accomplice's confession and directed respondent to say the same thing. In rebuttal, the State called the Sheriff, who denied that respondent was read the accomplice's confession and who read that confession to the jury after the trial judge had instructed the jury that the confession was not admitted for the purpose of proving its truthfulness, but for the purpose of rebuttal only. The prosecutor then elicited from the Sheriff testimony emphasizing the differences between respondent's confession and the accomplice's confession. Respondent was found guilty and sentenced to life imprisonment. The Tennessee Court of Criminal Appeals reversed, holding that the introduction of the accomplice's confession denied respondent his Sixth Amendment right to confront witnesses, even though the confession was introduced for the nonhearsay purpose of rebutting respondent's testimony.Held: Respondent's rights under the Confrontation Clause of the Sixth Amendment were not violated by the introduction of the accomplice's confession for rebuttal purposes. Pp. 471 U. S. 413-417.(a) The nonhearsay aspect of the accomplice's confession -- not to prove what happened at the murder scene but to prove what happened when respondent confessed -- raises no Confrontation Clause concerns. The Clause's fundamental role in protecting the right of cross-examination was satisfied by the Sheriff's presence on the witness stand. Pp. 471 U. S. 413-414.(b) If the prosecutor had been denied the opportunity to present the accomplice's confession in rebuttal so as to enable the jury to make the relevant comparison with respondent's confession, the jury would have been impeded in evaluating the truth of respondent's testimony and in weighing the reliability of his confession. Such a result would have been at odds with the Confrontation Clause's mission of advancing the accuracy of the truth-determining process in criminal trials. There were no alternatives that would have both assured the integrity of the trial's truth-seeking function and eliminated the risk of the jury's improper use of evidence. Pp. 471 U. S. 414-416. Page 471 U. S. 410(c) The trial judge's instructions to the jury as to the limited purpose of admitting the accomplice's confession were the appropriate way to limit the use of that evidence in a manner consistent with the Confrontation Clause. P. 471 U. S. 417.674 S.W.2d 741, reversed.BURGER, C.J., delivered the opinion of the Court, in which all other Members joined, except POWELL, J., who took no part in the consideration or decision of the case. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 471 U. S. 417.

1987_86-986

JUSTICE BLACKMUN delivered the opinion of the Court.This case presents the Court once again with a question concerning a State's ability to regulate the activities of natural gas companies. Page 485 U. S. 295IRespondents ANR Pipeline Company (Pipeline) and ANR Storage Company (Storage) are wholly owned subsidiaries of American Natural Resources Company (Resources), a Delaware corporation which, like Pipeline and Storage, has its principal place of business in Michigan. Both Pipeline and Storage are natural gas companies, within the meaning of the Natural Gas Act of 1938 (NGA or Act), ch. 556, 52 Stat. 821, as amended, 15 U.S.C. § 717 et seq. [Footnote 1] Thus, both are subject to the jurisdiction of the Federal Energy Regulatory Commission (FERC), the regulatory body charged with implementation of the NGA. See § 1(b) of the Act, 15 U.S.C. § 717(b). [Footnote 2]Pipeline is a Delaware corporation that owns and operates an interstate natural gas pipeline system transporting gas, exclusively for resale, to 51 gas distribution centers in Michigan and eight other States, where the gas is either delivered to customers of Pipeline or stored for future delivery. Pipeline Page 485 U. S. 296 purchases its natural gas from producers in Texas, Oklahoma, Kansas, Louisiana, and Wyoming.Storage, which operates independently from Pipeline, is a Michigan corporation organized by Resources in 1978 to develop and operate gas storage reservoirs for nonaffiliated customers. Storage receives gas from outside Michigan and, on demand, redelivers it for sale outside that State. Storage operates four storage fields in Michigan.Petitioners are members of the Michigan Public Service Commission (MPSC). Under Michigan's Public Utilities Securities Act, 1909 Mich. Pub. Acts No. 144, as amended (Act 144), Mich.Comp.Laws Ann. § 460.301 et seq. (1967 and Supp.1987), [Footnote 3] a public utility exercising or claiming the right Page 485 U. S. 297 to transport natural gas in Michigan for public use [Footnote 4] must obtain MPSC approval before issuing long-term securities. Act 144 directs the MPSC to approve a security issuance Page 485 U. S. 298 when it"is satisfied that the funds derived . . . are to be applied to lawful purposes and that the issue and amount is essential to the successful carrying out of the purposes, or that the issue of the stock fairly represents accumulated and undistributed earnings invested in capital assets and not previously capitalized."§ 460.301(3). The MPSC may conduct an investigation, including an appraisal of the company's property at the company's expense, in deciding whether to allow the issue, § 460.301(2), and it "may impose as a condition of the grant reasonable terms and conditions that [it] considers proper." § 460.301(3).Pipeline and Storage filed in the United States District Court for the Western District of Michigan an amended complaint against petitioners in their official capacities, seeking a declaratory judgment that the MPSC lacks jurisdiction over their security issuances, and thus that they may lawfully issue and market securities without MPSC approval. [Footnote 5] Respondents argued that Act 144 was preempted by the NGA, and that Act 144 violates the Commerce Clause, U.S.Const., Art. I, § 8, cl. 3.The District Court concluded that Act 144 was neither preempted by the federal regulatory scheme nor in violation of the Commerce Clause. 627 F. Supp. 923 (WD Mich.1985). On the preemption issue, the court concluded that"compliance with both federal and state regulations is not a physical impossibility, and Act 144 does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."Id. at 930. As to the Commerce Clause, the court concluded that Act 144 was"an evenhanded and relatively limited state regulation which, as applied to [respondents], has historically had an indirect and minimal effect Page 485 U. S. 299 on interstate commerce,"while serving legitimate local interests. 627 F. Supp. at 933.The United States Court of Appeals for the Sixth Circuit reversed, holding that both the preemptive effect of the federal regulatory scheme and the Commerce Clause bar application of Act 144 to respondents. 801 F.2d 228 (1986). The Court of Appeals concluded that Act 144 was preempted because, by omitting any requirement of advance approval of the issuance of securities"in an otherwise 'comprehensive' regulatory scheme, Congress has implicitly determined that the States should not impose such regulations,"801 F.2d at 233-234, and because of the possibility of a conflict between federal and state regulation of natural gas company projects and financing plans, id. at 235-236. Furthermore, the court reasoned, inasmuch as"the burdens of expense, delay, and administrative hassle of 'advance approval' securities regulation far outweigh the benefits, if any, of Michigan's interests in protecting consumers and investors . . . Act 144 unconstitutionally burdens interstate commerce."Id. at 238.Because of a conflict between the views of the Sixth Circuit and those of the Michigan Supreme Court set forth in Michigan Gas Storage Co. v. Michigan Pub. Serv. Comm'n, 405 Mich. 376, 275 N.W.2d 457 (1979), we granted certiorari to decide whether Michigan may require respondents to obtain MPSC approval before issuing and marketing securities.IIThe circumstances in which federal law preempts state regulation are familiar. See Arkansas Elec. Coop. Corp. v. Arkansas Public Serv. Comm'n, 461 U. S. 375, 461 U. S. 383 (1983). See also Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 458 U. S. 152-154 (1982). A preemption question requires an examination of congressional intent. Id. at 152. Of course, Congress explicitly may define the extent to which its enactments preempt state law. See, e.g., Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 463 U. S. 95-96 (1983). In the Page 485 U. S. 300 absence of explicit statutory language, however, Congress implicitly may indicate an intent to occupy a given field to the exclusion of state law. Such a purpose properly may be inferred where the pervasiveness of the federal regulation precludes supplementation by the States, where the federal interest in the field is sufficiently dominant, or where "the object sought to be obtained by the federal law and the character of obligations imposed by it . . . reveal the same purpose." Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 230 (1947). Finally, even where Congress has not entirely displaced state regulation in a particular field, state law is preempted when it actually conflicts with federal law. Such a conflict will be found"'when it is impossible to comply with both state and federal law, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 373 U. S. 142-143 (1963), or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, Hines v. Davidowitz, 312 U. S. 52, 312 U. S. 67 (1941).'"California Coastal Comm'n v. Granite Rock Co., 480 U. S. 572, 480 U. S. 581 (1987), quoting Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 464 U. S. 248 (1984).In this case, we conclude that Act 144 regulates in a field the NGA has occupied to the exclusion of state law, and that it therefore is preempted.IIIAThe NGA long has been recognized as a "comprehensive scheme of federal regulation of all wholesales of natural gas in interstate commerce.'" Northern Natural Gas Co. v. State Corporation Comm'n of Kansas, 372 U. S. 84, 372 U. S. 91 (1963), quoting Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, 347 U. S. 682 (1954). [Footnote 6] The NGA confers upon FERC exclusive Page 485 U. S. 301 jurisdiction over the transportation and sale of natural gas in interstate commerce for resale. Northern Natural Gas Co., 372 U.S. at 372 U. S. 89. 2FERC exercises authority over the rates and facilities of natural gas companies used in this transportation and sale through a variety of powers. Sections 4, 5, and 7 of the NGA, as amended, 15 U.S.C. §§ 717c, 717d, and 717f, give FERC a number of tools for examining and controlling the issuance of securities of natural gas companies in the exercise of its comprehensive authority.First, in exercising its authority to determine a "just and reasonable" rate for the transportation or sale of natural gas subject to its jurisdiction, FERC may conduct hearings and undertake a detailed examination of a company. § 4 of the NGA, as amended, 15 U.S.C. § 717c. For example, to calculate a reasonable rate of return on invested capital, FERC examines a company's capital structure (the percentages of its capital that come from debt, common stock, and preferred stock), establishes the rate of return allowable on each type of capital, and determines an overall rate of return as a weighted average, in accordance with the amount of each kind of capital. Public Service Comm'n of New York v. FERC, 259 U.S.App.D.C. 86, 96, 813 F.2d 448, 458 (1987). Thus, a natural gas company's capital structure is related directly to the rates FERC allows it to charge. When a company's "equity ratio moves beyond generally accepted limits," however, FERC may calculate a company's rates on an imputed "reasonable capital structure" rather than on the actual structure. Alabama-Tennessee Natural Gas Co., 38 FERC � 61,251, p. 61,849, aff'd in relevant Page 485 U. S. 302 part on rehearing, 40 FERC � 61,244, pp. 61,813-61,816 (1987). Thus, FERC exercises its ratemaking authority to limit the burden on ratepayers of abnormally high equity ratios. See, e.g., Tarpon Transmission Co., 41 FERC � 61,044 (1987). In addition, this power effectively permits FERC to control, albeit indirectly, a natural gas company's capital structure. FERC's power to prevent an overcapitalized company from financing its equity through inflated rates presumably acts as a strong deterrent to the development of such a capital structure.Second, a natural gas company must obtain from FERC a "certificate of public convenience and necessity" before it constructs, extends, acquires, or operates any facility for the transportation or sale of natural gas in interstate commerce. § 7(c)(1)(A) of the NGA, as amended, 15 U.S.C. § 717f (c)(1)(A). FERC will grant the certificate only if it finds the company able and willing to undertake the project in compliance with the rules and regulations of the federal regulatory scheme. § 7(e), as amended, 15 U.S.C. § 717f(e). FERC may attach"to the issuance of the certificate and to the exercise of the rights granted thereunder such reasonable terms and conditions as the public convenience and necessity may require."Ibid. In fulfilling this statutory duty, FERC has promulgated extensive regulations that require a statement of the plans for financing a proposed facility and a detailed description of any proposed securities issuance. 18 CFR § 157.14(14) (1987). [Footnote 7] FERC, like the Federal Power Commission, Page 485 U. S. 303 its predecessor, has not hesitated to use its certification power to ensure that a project is financed in accordance with the public interest. [Footnote 8] Page 485 U. S. 304Third, FERC has various powers and obligations that both allow and require it to protect against the deleterious effects of ill-considered or improper securities issuances in this area. For example, officers and directors of natural gas companies are prohibited from profiting from the company's securities issues. See § 12, 15 U.S.C. § 717k. No company may abandon any service or facility without FERC approval, including a finding by FERC that either the available gas supply is depleted, or "the present or future public convenience or necessity permit such abandonment." § 7(b), 15 U.S.C. § 717f(b). A company must keep its accounts in accordance with FERC's Uniform System of Accounts, and must submit those accounts for review as FERC deems necessary. §§ 8 and 10, 15 U.S.C. §§ 717g and 717i; 18 CFR pt. 201 (1987). Finally, FERC has the authority to examine and to change "any rule, regulation, practice, or contract affecting [rates that] is unjust, unreasonable, unduly discriminatory, or preferential." § 5(a), 15 U.S.C. § 717d(a).Although the NGA gives FERC these substantial powers and obligations, it is also true, as petitioners remind us, that FERC is not expressly authorized to regulate the issuance of securities by natural gas companies. Of course, if such express authority were granted, preemption would be more apparent, given the comprehensive nature of FERC's authority. In the absence of an express provision, however, we must examine whether the preissuance review of securities in which Michigan engages amounts to a regulation in the field of gas transportation and sales for resale that Congress intended FERC to occupy.As an initial matter, respondents argue that Act 144 is preempted by the NGA because"[s]ecurities issuances used to finance the interstate sale and transportation of natural gas were clearly beyond the power of the states to control in 1938."Brief for Respondents 12. They premise this argument on this Court's statements that Congress intended, by Page 485 U. S. 305 enacting the NGA, to cover areas of natural gas regulation that the States could not reach under the Court's "dormant" Commerce Clause decisions. See, e.g., Panhandle Eastern Pipe Line Co. v. Public Service Comm'n of Indiana, 332 U. S. 507, 332 U. S. 514-516 (1947) (NGA covers sales for resale by interstate carriers; States regulate direct sales to consumers even though made by interstate carriers). Thus, if the Commerce Clause barred the States from a certain method of regulation when the NGA was enacted in 1938, respondents argue, that type of regulation was covered by the NGA, and is now preempted. Our inquiry, however, is not so easily answered.Even if Commerce Clause jurisprudence would have barred Act 144's regulation at the time of the enactment of the NGA, an issue never directly settled by the Court, that would not decide this case. The authorities on which respondents rely state only what is now well settled: Congress occupied the field of matters relating to wholesale sales and transportation of natural gas in interstate commerce. See, e.g., Illinois Gas Co. v. Central Illinois Public Service Co., 314 U. S. 498, 314 U. S. 506-507 (1942). The question remains, however, whether Act 144 regulates within this exclusively federal domain. Furthermore, in the absence of an express statement in the NGA of an intent to preempt this kind of state law, respondents' syllogism may be flawed."To the extent that Congress sought to freeze its perception of [the scope of constitutionally permissible state regulation] into law, . . . it did so only as a means to accomplishing the end of workable federal regulation, not as an end in itself."Arkansas Elec. Coop. Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. at 461 U. S. 384, n. 8. If Congress did not intend a particular kind of federal regulation, preempting state regulation of that kind would not necessarily have served Congress' purpose. Ibid. An intent to preempt state regulation thus cannot be inferred from the mere fact that States were Page 485 U. S. 306 precluded from such regulation at the time of the NGA's enactment.Similarly, petitioners' reliance on Congress' subsequent failure to enact proposed legislation that would have given FERC explicit authority to regulate the issuance of securities of natural gas companies [Footnote 9] deserves only passing mention. This Court generally is reluctant to draw inferences from Congress' failure to act. See, e.g., American Trucking Assns., Inc. v. Atchison, T. & S. F. R. Co., 387 U. S. 397, 387 U. S. 416-418 (1967); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 395 U. S. 381, n. 11 (1969). Indeed, those Members of Congress who did not support these bills may have been as convinced by testimony that the NGA already provided "broad and complete . . . jurisdiction and control over the issuance of securities" as by arguments that the matter was best left to the States. See Hearings on H.R. 5306 before a Subcommittee of the House Committee on Interstate and Foreign Commerce, 81st Cong., 2d Sess., 53 (1950). Furthermore, even if, in enacting the NGA, Congress had decided to deny FERC access to a particular regulatory tool, it would not necessarily follow that Congress intended to allow the States the use of that tool. Congress may have determined that this particular form of regulation simply should not be employed. That authoritative federal determination would have full preemptive force. Transcontinental Gas Pipe Line Corp. v. State Oil and Gas Bd. of Mississippi, 474 U. S. 409, 474 U. S. 422 (1986).CWe turn then, to the crux of the issue: whether Act 144 is a regulation of the rates and facilities of natural gas companies used in transportation and sale for resale of natural gas in interstate commerce. Since we find that it is, we conclude that it is preempted. Page 485 U. S. 307As noted earlier, Act 144 allows the MPSC to examine a security issuance of a natural gas company to determine whether it is"to be applied to lawful purposes and . . . is essential to the successful carrying out of the purposes, [or] represents accumulated and undistributed earnings invested in capital assets and not previously capitalized."Mich.Comp.Laws Ann. § 460.301(3) (Supp.1987). The Michigan Supreme Court has authoritatively construed Act 144 as designed to protect investors in the gas company's securities and to protect ratepayers. Attorney General v. MPSC, 412 Mich. 385, 402, 316 N.W.2d 187, 193 (1982). By guarding against the "evils and injurious effects on the public of overcapitalization," Indiana & Michigan Power Co. v. Public Service Comm'n, 405 Mich. 400, 410, 275 N.W.2d 450, 453 (1979), Act 144 both protects investors and ensures "efficient and uninterrupted service at reasonable rates." Ibid. It is our view, however, that, when applied to natural gas companies, Act 144 amounts to a regulation of rates and facilities, a field occupied by federal regulation. The objectives sought by Act 144 are the same as those sought by the NGA.Petitioners argue that, without Act 144, a company could take on so much debt through securities issuances that it would lack the resources to maintain its Michigan facilities properly. This could threaten the supply of gas to Michigan consumers, petitioners argue, lead to a rate increase, or hurt investors in the company. In another scenario, a company might take on more equity than it needs, requiring it to charge higher rates (because equity usually requires a higher rate of return). Petitioners also explain that Act 144 protects against overcapitalization in the sense of a lack of correlation between a company's capital stock and the value of its property. An imbalance in this respect, petitioners argue, could also threaten the supply of gas at reasonable rates. [Footnote 10] Page 485 U. S. 308Each of these uses of Act 144, however, is an attempt to regulate matters within FERC's exclusive jurisdiction. By keeping a natural gas company from raising its equity levels above a certain point, Michigan seeks to ensure that the company will charge only what Michigan considers to be a "reasonable rate." This is regulation of rates. The other aim of Act 144, seeking to ensure that a company is financed in a way that will allow proper maintenance of its facilities and continuance of its services, for the benefit of both ratepayers and investors, also falls within FERC's exclusive purview since those facilities are a critical part of the transportation of natural gas and sale for resale in interstate commerce. In short, the things Act 144 regulation is directed at, the control of rates and facilities of natural gas companies, are precisely the things over which FERC has comprehensive authority. [Footnote 11]Of course, every state statute that has some indirect effect on rates and facilities of natural gas companies is not preempted. Cf. Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 471 U. S. 753-756 (1985). Act 144's effect, however, is not "indirect." In this case, we are presented with a state Page 485 U. S. 309 law whose central purpose is to regulate matters that Congress intended FERC to regulate. Not only is such regulation the function of the federal regulatory scheme, but the NGA has equipped FERC adequately to address the precise concerns Act 144 purports to manage. As reviewed above, FERC can control potential instances of overcapitalization, and its effects on both ratepayers and investors, by its regulation of rates. To the extent that Act 144 is directed at "overcapitalization" in the sense of a lack of correlation between a company's capital stock and the value of its property, FERC directly monitors the same matter through its accounting requirements. As to natural gas companies that threaten the continued supply of gas by seeking to finance their operations through excessive debt, FERC may prevent such problems through its certification power. Indeed, as discussed above, FERC's detailed examination of a company's finances includes review of security issuances involved in financing new facilities. [Footnote 12] In addition, FERC has its power to prevent abandonments. Finally, FERC's authority to regulate and fix practices affecting rates allows the agency to address directly any unduly leveraged, unduly risky, or unduly capitalized investments.Thus, while the NGA does not expressly grant FERC preissuance authority over the securities of natural gas companies, FERC achieves the regulatory ends of such review with regard to rates and facilities through the exercise of its express regulatory responsibilities. Page 485 U. S. 310DOur conclusion that Act 144 seeks to regulate a field that the NGA has occupied also is supported by the imminent possibility of collision between Act 144 and the NGA. See Northern Natural Gas Co. v. State Corporation Comm'n of Kansas, 372 U.S. at 372 U. S. 91-93; Maryland v. Louisiana, 451 U. S. 725, 451 U. S. 751 (1981). If the MPSC ever denied a natural gas company authority to issue a security under Act 144 for a FERC-approved project, the disagreement between state and federal authorities over the wisdom of the project and its proposed financing would interfere with the federal regulatory scheme. Furthermore, any state-ordered alteration in a company's capital structure would impinge on the federal ratemaking authority.When a state regulation"affect[s] the ability of [FERC] to regulate comprehensively . . . the transportation and sale of natural gas, and to achieve the uniformity of regulation which was an objective of the Natural Gas Act"or presents the "prospect of interference with the federal regulatory power," then the state law may be preempted even though "collision between the state and federal regulation may not be an inevitable consequence." Northern Natural Gas Co., 372 U.S. at 372 U. S. 91-92. Although hypothetical conflicts will not always show an intent to preempt state authority, see Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 331 U. S. 237 (1947), this "imminent possibility" further demonstrates the NGA's complete occupation of the field that Act 144 seeks to regulate.We therefore conclude that the MPSC regulation of respondents through Act 144 impinges on a field that the federal regulatory scheme has occupied and, consequently, that Act 144 is preempted. [Footnote 13] Page 485 U. S. 311IVBecause we have concluded that Act 144 is preempted by the NGA, we need not decide whether, absent federal occupation of the field, Act 144 violates the Commerce Clause. See Transcontinental Gas Pipe Line Corp. v. State Oil and Gas Bd. of Mississippi, 474 U.S. at 474 U. S. 425.The judgment of the Court of Appeals is affirmed.It is so ordered

U.S. Supreme CourtSchneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988)Schneidewind v. ANR Pipeline Co.No. 86-986Argued November 2, 1987Decided March 22, 1988485 U.S. 293SyllabusUnder a Michigan statute (Act 144), a public utility transporting natural gas in Michigan for public use must obtain approval of the Michigan Public Service Commission (MPSC) before issuing long-term securities. Act 144 directs the MPSC to approve a proposed security issuance when it is satisfied that the funds derived therefrom are to be applied to lawful purposes and that the issuance is essential to the successful carrying out of the purposes, or represents accumulated and undistributed earnings invested in capital assets and not previously capitalized. Respondent companies, which serve customers in other States as well as in Michigan, are natural gas companies within the meaning of the federal Natural Gas Act of 1938 (NGA), and are subject to the jurisdiction of the Federal Energy Regulatory Commission (FERC). They filed suit against petitioners, members of the MPSC, in Federal District Court, seeking a declaratory judgment that the MPSC lacked jurisdiction over their security issuances because Act 144 was preempted by the NGA and because it violated the Commerce Clause. The court rejected respondents' claims. The Court of Appeals reversed, holding that both the preemptive effect of the federal regulatory scheme and the Commerce Clause barred application of Act 144 to respondents.Held: The MPSC regulation of respondents through Act 144 impinges on a field that the federal regulatory scheme has occupied to the exclusion of state law, and Act 144 therefore is preempted. Pp. 485 U. S. 300-310.(a) Although FERC is not expressly authorized to regulate natural gas companies' issuance of securities, the NGA is a comprehensive scheme of federal regulation of all wholesales of natural gas in interstate commerce that gives FERC a number of tools -- such as its authority to fix rates and to withhold certificates of public convenience and necessity -- for examining and controlling the issuance of such securities in the exercise of its comprehensive authority. Pp. 485 U. S. 300-304.(b) Congressional intent to preempt state regulation of securities issuances to finance the interstate transportation and sale of natural gas cannot be inferred, as respondents contended, from the mere fact that States might have been precluded from such regulation under "dormant" Commerce Clause principles at the time of the NGA's enactment in 1938. Nor can any inferences as to the States' authority to regulate be drawn, Page 485 U. S. 294 as petitioners contended, from Congress' subsequent failure to enact proposed legislation that would have given FERC explicit authority to regulate the issuance of natural gas companies' securities. Pp. 485 U. S. 304-306.(c) When applied to natural gas companies, Act 144 amounts to a regulation of rates and facilities used in transportation and sale for resale of natural gas in interstate commerce, a field occupied by federal regulation. Although every state statute that has some indirect effect on natural gas companies' rates and facilities is not preempted, Act l44's effect is not "indirect." Its central purpose is to regulate matters that Congress intended FERC to regulate exclusively. Pp. 485 U. S. 305-309.(d) The conclusion that Act 144 seeks to regulate a field that the NGA has occupied is also supported by the imminent possibility of collision between Act 144 and the NGA. P. 485 U. S. 310.801 F.2d 228, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which all other Members joined, except KENNEDY, J., who took no part in the consideration or decision of the case.

1962_19

MR. JUSTICE DOUGLAS delivered the opinion of the Court.The main question in this case is whether California can enforce her minimum wholesale price regulations as respects milk sold to the United States at three military installations [Footnote 1] (Travis Air Force Base, Castle Air Force Base, and Oakland Army Terminal) located within California and used for strictly military consumption, for resale at federal commissaries, and for consumption or resale at various military clubs and post exchanges. Milk used for the first two categories of use is paid for with Page 371 U. S. 248 appropriated funds, while that used in the clubs and exchanges is purchased with nonappropriated funds. Prior to January, 1959, the milk supplies purchased with appropriated funds and used at those installations were obtained as a result of competitive bidding and on terms below the minimum prices prescribed by the Director of Agriculture of California. The Director advised distributors that the State's minimum price regulations were applicable to sales at Travis. Subsequently bids for milk supply contracts at Travis were in strict compliance with California's regulations, the added cost to the Federal Government being about $15,000 a month. Later that year, California instituted a civil action in the state courts against a cooperative that had supplied milk at Travis below the state minimum price, seeking civil penalties and an injunction. Thereafter, the United States brought this suit in the District Court. The complaint alleged that state price regulation of milk sales at Travis, a federal enclave, was barred by the Constitution, since Travis is subject to the exclusive jurisdiction of the United States. [Footnote 2] It also alleged that such regulation was an unconstitutional burden on the United States in the exercise of its constitutional power to establish and maintain the Armed Forces and to acquire and manage a federal enclave. The complaint asked that a three-judge court be convened.Meanwhile, the Director of Agriculture of California warned distributors that the California regulation would be enforced at Castle and at Oakland. Bids for milk thereafter received at Castle were all at or above the state minimum price; and accordingly they were rejected. A Page 371 U. S. 249 new invitation for bids was issued, and one of those received was below the state minimum. Thereupon, California sued the successful bidder for an injunction, and later it sued other like bidders. A similar experience was had at Oakland; bids at or above the minimum were rejected, and a contract with a distributor for a prior period was extended for three months with an estimated saving to the United States of over $30,000. California again instituted suit to enjoin the supplier from selling at below established minimum wholesale prices. The United States amended its complaint to include its purchases at Castle. As respects Oakland, the United States commenced a separate action by a complaint substantially identical with the other one, and they were later consolidated.Appellants denied that these three installations were federal enclaves giving the United States exclusive jurisdiction, and that there was any conflict between the state regulatory scheme and the federal procurement policy. Appellants also moved that the District Court stay these actions pending determination of state law questions by the state courts in the pending actions.The three-judge District Court refused to stay the proceedings, and granted the motion of the United States for summary judgment. 190 F. Supp. 645. We postponed a determination of jurisdiction to the merits. Paul v. United States, 368 U.S. 965.IHere, as in United States v. Georgia Public Service Comm'n, post, p. 371 U. S. 285, the suit was one "required" to be heard by a three-judge court within the meaning of 28 U.S.C. § 1253, and therefore properly brought here by direct appeal. Apart from the question whether the three federal areas were subject to the exclusive jurisdiction of the United States, the issue as to Page 371 U. S. 250 whether or not the state regulatory scheme burdened the exercise by the United States of its constitutional powers to maintain the Armed Services and to regulate federal territory was a substantial federal question, as Penn Dairies, Inc. v. Milk Control Comm'n, 318 U. S. 261; Public Utilities Comm'n of California v. United States, 355 U. S. 534, and United States v. Georgia Public Service Comm'n, supra, make clear. A three-judge court was therefore required even if other issues that might not pass muster on their own were also tendered. See 28 U.S.C. § 2281; Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U. S. 73.IIThe California Act authorizes the Director of Agriculture to prescribe minimum wholesale and retail prices [Footnote 3]"at which fluid milk or fluid cream shall be sold by distributors to retail stores, restaurants, confectioneries and other places for consumption on the premises. [Footnote 4]"The prohibitions run both against sales and against purchases, [Footnote 5] and both criminal and civil penalties are provided. [Footnote 6] The minimum wholesale prices, promulgated by the Director of Agriculture, have been enforced with respect to sales to the United States, as already noted.In Public Utilities Comm'n of California v. United States, supra, we held that the federal procurement policy, which required competitive bidding as the general rule and negotiated purchase or contract as the exception, prevailed over California's regulated rate system. That case, like United States v. Georgia Public Service Comm'n, supra, concerned transportation of commodities. But the federal policy at the times relevant here was the same for procurement of supplies and services. The statutes in effect at the time of the Public Utilities Commission of California case are still the basic provisions governing all Page 371 U. S. 251 procurement by the Armed Services out of appropriated funds. They require that contracts be placed by competitive bidding, the award to be granted "to the responsible bidder whose bid . . . will be the most advantageous to the United States, price and other factors considered." [Footnote 7] There are statutory exceptions, the relevant ones being as follows:"(a) Purchases of and contracts for property or services covered by this chapter shall be made by formal advertising in all cases in which the use of such method is feasible and practicable under the existing conditions and circumstances. If use of such method is not feasible and practicable, the head of an agency, subject to the requirements for determinations and findings in section 2310, may negotiate such a purchase or contract, if --""* * * *" "(8) the purchase or contract is for property for authorized resale;""(9) the purchase or contract is for perishable or nonperishable subsistence supplies;""(10) the purchase or contract is for property or services for which it is impracticable to obtain competition;""* * * *" "(15) the purchase or contract is for property or services for which he determines that the bid prices received after formal advertising are unreasonable as to all or part of the requirements, or were not independently reached in open competition, and for which (A) he has notified each responsible bidder of intention to negotiate and given him reasonable opportunity to negotiate; (B) the negotiated price is Page 371 U. S. 252 lower than the lowest rejected bid of any responsible bidder, as determined by the head of the agency; and (C) the negotiated price is the lowest negotiated price offered by any responsible supplier. [Footnote 8]"The Armed Services Procurement Regulation speaks in unambiguous terms of a policy "to use that method of procurement which will be most advantageous to the Government -- price, quality, and other factors considered." [Footnote 9] The Regulation states,"Such procurement shall be made on a competitive basis, whether by formal advertising or by negotiation, to the maximum practicable extent. . . . [Footnote 10]"Whatever method is used -- formal advertising or negotiation -- "competitive proposals" must be"solicited from all such qualified sources of supplies or services as are deemed necessary by the contracting officer to assure such full and free competition as . . . to obtain for the Government the most advantageous contract -- price, quality, and other factors considered. [Footnote 11]"If advertising for bids is used, the contract is to be awarded "to the lowest responsible bidder." [Footnote 12] Moreover, even when advertising for bids is not used, competitive standards are not relaxed. The policy is"to procure supplies and services from responsible sources at fair and reasonable prices calculated to result in the lowest ultimate over-all cost to the Government. [Footnote 13]""The fact that a procurement is to be negotiated does not relax the requirements for competition." [Footnote 14]"Whenever supplies . . . are to be procured by negotiation, price quotations . . . shall be solicited Page 371 U. S. 253 from all such qualified sources of supplies or services as are deemed necessary . . . to assure full and free competition . . . to the end that the procurement will be made to the best advantage of the Government, price and other factors considered. [Footnote 15]"The Regulation then specifies 20 separate considerations for the selection of a supplier in case of a negotiated procurement. [Footnote 16] The first of these is a "comparison of prices quoted." [Footnote 17]We have said enough to show that the Regulation does more than authorize procurement officers to negotiate for lower rates. It directs that negotiations or, wherever possible, advertising for bids shall reflect active competition, so that the United States may receive the most advantageous contract.While the federal procurement policy demands competition, the California policy, as respects milk, effectively eliminates competition. The California policy defeats the command to federal officers to procure supplies at the lowest cost to the United States by having a state officer fix the price on the basis of factors not specified in the federal law. Moreover, when the supply contract is negotiated because "it is impracticable to obtain competition," to use the statutory words, [Footnote 18] it is the state agency, not the federal procurement officer and the seller, that determines the price provisions of the contract, if state policy prevails. The collision between the federal policy of negotiated prices and the state policy of regulated prices is as clear and acute here as was the conflict between federal negotiated rates and state regulated rates in Public Utilities Comm'n of California v. United States, supra. In that case, we said that the Regulation then existing, which was promulgated under the same Act here involved,"sanction[ed] Page 371 U. S. 254 the policy of negotiating rates for shipment of federal property and entrust[ed] the procurement officers with the discretion to determine when existing rates will be accepted and when negotiation for lower rates will be undertaken."355 U.S. at 355 U. S. 542-543.Penn Dairies, Inc. v. Milk Control Comm'n, supra, is not opposed. As we noted in United States v. Georgia Public Service Comm'n, supra, Congress, after the Penn Dairies decision and before Public Utilities Comm'n of California v. United States, revised and restated the federal procurement policy. As stated in the House Report, [Footnote 19]". . . the bill represents a comprehensive revision and restatement of the laws governing the procurement of supplies and services by the War and Navy Departments. It holds to the time-tested method of competitive bidding. At the same time, it puts within the framework of one law almost a century's accumulation of statutes, and incorporates new safeguards designed to eliminate abuses, assures the Government of fair and reasonable prices for the supplies and services procured, and affords an equal opportunity to all suppliers to compete for and share in the Government's business."The Regulation controlling the Penn Dairies decision stated, as does the present Act, that supplies might be purchased on the open market where it is "impracticable to secure competition." 318 U.S. at 318 U. S. 277. But, unlike the present Regulation, the earlier one declared that such a situation arose "when the price is fixed by federal, state, municipal or other competent legal authority." Ibid. The earlier Regulation further stated that federal procurement officers should not require suppliers to comply with state price-fixing laws before it was judicially determined whether the latter were applicable to government contracts (id. at 318 U. S. 276), a provision which Page 371 U. S. 255 the Court said manifested a federal "hands off" policy respecting minimum price laws of the States. Id. at 318 U. S. 278.The present Regulation makes no such allowances, contains no such qualifications, and provides for no such exception. Its unqualified commands is that purchases for the Armed Services be made on a competitive basis; and it has, of course, the force of law. Public Utilities Comm'n of California v. United States, supra, at 355 U. S. 542-543. California's price-fixing policy for milk is as opposed to this federal procurement policy as was California's ratemaking policy in Public Utilities Comm'n of California v. United States, supra.Policy-wise, it might be better if state price-fixing systems were honored by federal procurement officials. It is urged that, if that were done, substandard producers of some suppliers would lose the advantage they may enjoy in competitive bidding. Congress could, of course, write that requirement into the law. Congress has written into the Act certain provisions of that character. It has required that contractors or manufacturers pay not less than the minimum wage as determined by the Secretary of Labor to be the prevailing wage; that building contractors pay such minimum wages to laborers and mechanics; and that no laborer or mechanic doing any work for contractors and subcontractors on government contracts shall be required or permitted to work more than eight hours a day, unless one and a half times the basic rate is paid for overtime. [Footnote 20] The inclusion of these provisions, aimed as they are at substandard working conditions, shows that Congress has been alert to the problem. Their inclusion makes more eloquent the omission of any like requirement as respects prices or rates fixed by state law. Page 371 U. S. 256It is argued that the Act of September 10, 1962, 76 Stat. 528, changed the situation. California points to § 2306(f), which requires contractors to submit cost or pricing data for any negotiated contract, but goes on to lift that requirement where "prices [are] set by law or regulation." But this provision does not say, even equivocally, that federal procurement officers must abandon competitive bidding where prices are "set by law or regulation." The Regulation makes competitive bidding the rule, as we have seen. Section 2306(f) only provides for waiver of "cost or pricing data" under certain kinds of negotiated contracts if the prices of some commodities included in the contract have been "set by law or regulation." That is to say, as, if, and when the procurement officer is authorized to accept prices "set by law or regulation," he need not follow the requirements of § 2306(f) concerning "cost or pricing data."California cites, but builds no argument around, § 2304(g), also added in 1962. It is now suggested for the first time that § 2304(g) requires federal procurement to follow state rate-fixing and state price-fixing. It provides in relevant part:"In all negotiated procurements in excess of $2,500 in which rates or prices are not fixed by law or regulation and in which time of delivery will permit, proposals shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured, and written or oral discussions shall be conducted with all responsible offerors who submit proposals within a competitive range, price, and other factors considered. . . ."Here again, the new statutory provision does not purport to say when rates or prices "fixed by law or regulation" govern federal procurement. At the time § 2304(g) was added to the Act, the Regulation which we have discussed Page 371 U. S. 257 at length was in full force. That Regulation, unlike the one in Penn Dairies, eliminated the earlier provisions which had been construed to manifest a federal "hands off" policy respecting minimum price laws of the States. 318 U.S. at 318 U. S. 278. The Regulation in force when this litigation started and in force when the 1962 Act was passed provides unequivocally for competitive bidding "to the maximum practicable extent," as we have noted. That might well permit procurement officers under some circumstances to purchase at state-fixed prices. But competitive bidding is the rule, not the exception. There is not a word in the legislative history of the 1962 Act [Footnote 21] Page 371 U. S. 258 which indicates a congressional policy to uproot the Regulation or to change it. It was, indeed, repeatedly approved. See S. Rep.No.1884, 87th Cong., 2d Sess.; H.R.Rep.No.1638, 87th Cong., 2d Sess., Parts I and II; Cong.Rec., Page 371 U. S. 259 June 7, 1962, p. 9231 et seq. Four years before the 1962 Act was passed, California Comm'n had held that state regulations cannot preclude the Federal Government from negotiating lower rates. This result was not once questioned in the legislative history of the 1962 Act, even though the instant case was being litigated during this entire period. That Act only reflects an effort to provide collateral accommodations as, if, and when federal procurement follows state price-fixing. The mandate of 10 U.S.C. § 2305(a) is still unequivocal, and the statutory exceptions to competitive bidding contained in § 2304(a), discussed above, remain unchanged.The 1962 Act fails to show a congressional purpose to abandon competitive bidding. On the contrary, the purpose, Page 371 U. S. 260 as stated in S.Rep.No.1884, 87th Cong., 2d Sess., was to increase the efficacy of the competitive bidding system then in force.Not only was the existing Regulation cited repeatedly with approval, but the aim of the Act was described in unambiguous terms:"In general, the objectives of the changes are --""(1) To encourage more effort to accomplish procurements by formal advertising;""(2) To require a clearer justification before certain authorities to negotiate contracts are used;""(3) To obtain more competition in negotiated procurement;""(4) To provide safeguards for the Government against inflated cost estimates in negotiated contracts."Id., p. 1. The House received an equally unambiguous explanation from the floor manager of the bill:"[T]his bill . . . has for its chief purpose, an increase in competitive purchasing. . . . [O]nly 13 percent of purchasing is now done by sealed competitive bidding. That is clearly not enough. Competition must be increased; competition must be had even in negotiated purchasing; and all negotiated purchasing must be further reduced."Cong.Rec., June 7, 1962, p. 9234.If there had been a desire to make federal procurement policy bow to state price-fixing in face of the contrary policy expressed in the Regulation, we can only believe that the objectives of the Act would have been differently stated. In sum, the references to rates or prices "fixed by law or regulation" are merely minor collateral accommodations to those situations where, within the limits of the Regulation and the 1962 Act, the federal procurement Page 371 U. S. 261 official decides that the practical way to obtain the supplies or services is by following the state price-fixing or rate-fixing system.California, however, says that, whatever may be the federal policy as to purchases of milk for mess hall use, purchases of milk for resale at federal commissaries stand on a different footing. These commissaries are "arms of the Government deemed by it essential for the performance of governmental functions," and "partake of whatever immunities" the Armed Services "may have under the constitution and federal statutes." Cf. Standard Oil Co. v. Johnson, 316 U. S. 481, 316 U. S. 485. Purchases for resale at these federal commissaries are made from appropriated funds, and the procurement officers act under the same Regulation when they purchase milk for the commissaries as they do when they purchase it for mess hall use. California points out, however, that the federal statute provides that, where commodities are purchased for resale, they may be procured by negotiation, rather than by formal advertising [Footnote 22] -- a provision we have quoted above and which was written into the law because purchases for commissaries "are generally not made by specifications but by brand names." [Footnote 23] Milk, however, does not fit the category of commodities for which that exception was designed. Moreover, the statutory exception to formal advertising is merely permissive; the procurement officer "may" negotiate for articles to be resold, but he is not required so to do. He is free to purchase by formal advertising from the responsible bidder whose bid "will be the most advantageous to the United States." [Footnote 24] Whether he negotiates milk contracts or uses competitive bidding is made dependent by the federal statute on his informed Page 371 U. S. 262 discretion, not on state price-fixing policies. Moreover, as, if, and when he negotiates, the Regulation, as already noted, requires price quotations"from all such qualified sources of supplies or services as are deemed necessary by the contracting officer to assure full and free competition . . . to the end that the procurement will be made to the best advantage of the Government, price and other factors considered. [Footnote 25]"And, to repeat, the procurement officer when he negotiates is controlled by 20 separate factors, one of which is "comparison of prices quoted," [Footnote 26] and none of which relates in any manner whatsoever to the price-fixing policies of a State.The fact that the cost of products sold at commissaries benefits commissary purchasers does not make the commissary any the less a federal agency. Cf. Standard Oil Co. of California v. Johnson, supra. Congress authorizes the payment for commissary supplies from appropriated funds. [Footnote 27] The federal statutes dealing with procurement policies expressly make them applicable to all purchases "for which payment is to be made from appropriated funds." [Footnote 28] Congress, to be sure, has provided that commissaries may not use any appropriated funds"unless the Secretary of Defense has certified that items normally procured from commissary stores are not otherwise available at a reasonable distance and a reasonable price in satisfactory quality and quantity to the military and civilian employees of the Department of Defense. [Footnote 29]"Here again, however, the question of what is a "reasonable price" is left to the discretion of a federal officer. Congress has not Page 371 U. S. 263 directed that commissaries be removed from the purview of federal procurement policies; nor has it adopted state price-fixing policies as federal policies when it comes to purchases for commissaries or otherwise.IIIWhat we have said would dispose of the entire case but for the fact that some of the milk was purchased out of nonappropriated funds for use in military clubs and for resale at post exchanges. This brings us to the question whether Congress has power to exercise "exclusive legislation" over these enclaves within the meaning of Art. I, § 8, cl. 17, of the Constitution, which reads in relevant part: "The Congress shall have Power . . . To exercise exclusive Legislation in all Cases whatsoever" over the District of Columbia and"to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings."The power of Congress over federal enclaves that come within the scope of Art. I, § 8, cl. 17, is obviously the same as the power of Congress over the District of Columbia. The cases make clear that the grant of "exclusive" legislative power to Congress over enclaves that meet the requirements of Art. I, § 8, cl. 17, by its own weight, bars state regulation without specific congressional action. The question was squarely presented in Pacific Coast Dairy v. Department of Agriculture, 318 U. S. 285, which involved, as does the present litigation, California's Act and an attempt to fix the prices at which milk could be sold at Moffett Field. We held that "sales consummated within the enclave cannot be regulated" by California because of the constitutional grant of "exclusive legislation" respecting lands purchased by the United Page 371 U. S. 264 States with the consent of the State (id. at 318 U. S. 294), even though there was no conflicting federal Regulation.Thus, the first question here is whether the three enclaves in question were "purchased by the Consent of the Legislature" of California within the meaning of Art. I, § 8, cl. 17.The power of the Federal Government to acquire land within a State by purchase or by condemnation without the consent of the State is well established. Kohl v. United States, 91 U. S. 367, 91 U. S. 371. But, without the State's "consent," the United States does not obtain the benefits of Art. I, § 8, cl. 17, its possession being simply that of an ordinary proprietor. James v. Dravo Contracting Co., 302 U. S. 134, 302 U. S. 141-142. In that event, however, it was held in Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525, 114 U. S. 541-542, that a State could complete the "exclusive" jurisdiction of the Federal Government over such an enclave by "a cession of legislative authority and political jurisdiction."Thus, if the United States acquires with the "consent" of the state legislature land within the borders of that State by purchase or condemnation for any of the purposes mentioned in Art. I, § 8, cl. 17, or if the land is acquired without such consent and later the State gives its "consent," the jurisdiction of the Federal Government becomes "exclusive." Since 1940, Congress has required the United States to assent to the transfer of jurisdiction over the property, however it may be acquired. [Footnote 30] In either event -- whether the land is acquired Page 371 U. S. 265 by purchase or condemnation, on the one hand, or by cession, on the other -- a State may condition its "consent" upon its retention of jurisdiction over the lands consistent with the federal use. James v. Dravo Contracting Co., supra, 302 U. S. 146-149. Moreover, as stated in James Stewart & Co. v. Sadrakula, 309 U. S. 94, 309 U. S. 99-100:"The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary, its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at the time of the surrender of sovereignty which govern the rights of the occupants of the territory transferred. This assures that no area, however small, will be left without a developed legal system for private rights."California has had several statutory provisions relevant to our problem under Art. I, § 8, cl. 17. One pertained to acquisition of land by the United States through "purchase or condemnation." [Footnote 31] Another concerned land Page 371 U. S. 266 "ceded or granted" by California to the United States. [Footnote 32]Those provisions were codified in 1943, acquisitions by "purchase or condemnation" appearing in one section, [Footnote 33] and acquisitions by cession in another. [Footnote 34] Another section of the codification, after stating that California "cedes" to the United States "exclusive jurisdiction" over all lands "held, occupied, or reserved" by the United States "for military purposes or defense," provides that a description of the land by metes and bounds and a map or plat of the land "shall first be filed in the proper office of record in the county in which the lands are situated." [Footnote 35]Most of the transactions creating these three federal enclaves took place between 1942 and 1944, some in 1946 [Footnote 36] and some even later. Page 371 U. S. 267Whether the United States has acquired exclusive jurisdiction over a federal enclave is a federal question. As stated in Silas Mason Co. v. Tax Commission, 302 U. S. 186, 197:"The question of exclusive territorial jurisdiction is distinct. That question assumes the absence of any interference with the exercise of the functions of the Federal Government, and is whether the United States has acquired exclusive legislative authority so as to debar the State from exercising any legislative authority, including its taxing and police power, in relation to the property and activities of individuals and corporations within the territory. The acquisition of title by the United States is not sufficient to effect that exclusion. It must appear that the State, by consent or cession, has transferred to the United States that residuum of jurisdiction which otherwise it would be free to exercise. . . . In this instance, the Supreme Court of Washington has held that the State has not yielded exclusive legislative authority to the Federal Government. . . . That question, however, involving the extent of the jurisdiction of the United States, is necessarily a federal question."As already noted, a California statute "cedes to the United States exclusive jurisdiction" over described lands provided a description of the metes and bounds and a map of the land first be filed. [Footnote 37] California earnestly argues Page 371 U. S. 268 that "cedes" in that context includes "purchases" and "acquisitions by condemnation." But the California statutes have consistently drawn the line between acquisitions by cession, on the one hand, and all other acquisitions, on the other. That is the gist of a recent opinion of the Attorney General of California in which he treats an acquisition by cession as an alternative to acquisition in other ways and rules that, when the acquisition is by means other than cession, no map of the land need first be filed. [Footnote 38] That seems to us to be the fair meaning of the statutory provisions.The conditions expressed in the California Acts, [Footnote 39] by which California consented to "the purchase or condemnation" of land by the United States for the prescribed purposes do not undertake to make applicable to the federal enclaves all future laws of California. Since a State may not legislate with respect to a federal enclave unless it reserved the right to do so when it gave its consent to the purchase by the United States, only state law existing at the time of the acquisition remains enforceable, not subsequent laws. See James Stewart & Co. v. Sadrakula, supra; Arlington Hotel Co. v. Fant, 278 U. S. 439. If the price control laws California is now seeking to apply to sales on federal enclaves were not in effect when the United States acquired these lands, [Footnote 40] the case is on all fours with Pacific Coast Dairy v. Department of Agriculture, supra. There, the Court held that the California statutes under which some of the present acquisitions were made granted the United States exclusive jurisdiction over the tracts in question in spite of the express conditions therein contained (id. at 318 U. S. 293), and that this price control law was Page 371 U. S. 269 not enforceable on a federal enclave in California because it was adopted "long after the transfer of sovereignty." 318 U.S. at 318 U. S. 294. The United States seeks shelter under that rule, saying California is trying to enforce its current regulatory scheme, not the price regulations in effect when the purchases were made. Yet, if there were price control of milk at the time of the acquisition and the same basic scheme has been in effect since that time, we fail to see why the current one, albeit in the form of different regulations, would not reach those purchases and sales of milk on the federal enclave made from nonappropriated funds. Congress could provide otherwise, and has done so as respects purchases and sales of milk from appropriated funds. But, since there is no conflicting federal policy concerning purchases and sales from nonappropriated funds, we conclude that the current price controls over milk are applicable to these sales, provided the basic state law authorizing such control has been in effect since the times of these various acquisitions. A remand will be necessary to resolve that question, as the present record does not show the precise evolution of the present regulatory scheme.There also remains another uncertainty concerning the purchases and sales of milk out of nonappropriated funds. There is a dispute over where some of these sales are made. Each of the three enclaves has numerous units acquired at various times, some of which may be subject to "exclusive" federal jurisdiction and some of which may not be. California earnestly claims that some sales out of nonappropriated funds were made on units of land over which the United States does not have "exclusive" jurisdiction. She makes the claim as respects some milk used at Travis, some at Castle, and some at Oakland.We do not resolve the question, but vacate the judgment of the District Court insofar as it relates to purchases and sales of milk made from nonappropriated funds, and Page 371 U. S. 270 remand the case to the District Court to determine whether, at the respective times when the various tracts in question were acquired, California's basic price control law as respects milk was in effect. If so, judgment on this class of purchases and sales should be for appellants. If not, then the District Court must make particularized findings as to where the purchases and sales of milk from nonappropriated funds are made and whether or not those tracts are areas over which the United States has "exclusive" jurisdiction within the meaning of Art. I, § 8, cl. 17 of the Constitution.Moreover, the decree must be modified to reflect the change in federal procurement policy as respects producers, already noted. [Footnote 41]Accordingly the judgment is affirmed in part and in part vacated and remanded.It is so ordered

U.S. Supreme CourtPaul v. United States, 371 U.S. 245 (1963)Paul v. United StatesNo. 19Argued October 17-18, 1962Decided January 14, 1963371 U.S. 245SyllabusCalifornia attempted to enforce her minimum wholesale price regulations with respect to milk sold to the United States at three military installations in the State. Such milk was purchased for strictly military consumption, for resale at federal commissaries, for use at various military clubs, or for resale in various post exchanges. The United States sued in a Federal District Court to enjoin enforcement of the regulations on the grounds that (a) the military installations were subject to the exclusive jurisdiction of the United States, and (b) such regulations unconstitutionally burdened the United States in the exercise of its constitutional power to establish and maintain the Armed Forces and to acquire and manage federal enclaves. A three-judge Court was convened, and it enjoined California officials from enforcing the regulations as to such milk. An appeal was taken directly to this Court.Held:1. The issue as to whether or not the state regulatory scheme burdened the exercise by the United States of its constitutional powers to maintain the Armed Services and to regulate federal territory was a substantial federal question; the suit was one "required" to be heard by a three-judge court; and the case was properly brought to this Court by direct appeal under 28 U.S.C. § 1253. Pp. 371 U. S. 249-250.2. The California price-fixing regulations cannot constitutionally be applied to purchases of milk for strictly military consumption or for resale at federal commissaries, since the state regulations are in conflict with federal statutes and regulations governing the procurement with appropriated funds of goods for the Armed Services. Pp. 371 U. S. 250-263.(a) The federal statutes and regulations require competitive bidding or negotiations that reflect active competition; whereas the state milk regulations would defeat this purpose by having a state officer fix the price on the basis of factors not specified in the federal law. Pp. 371 U. S. 250-255.(b) A different conclusion is not required by 10 U.S.C. § 2306(f), as amended Sept. 10, 1962, which requires contractors Page 371 U. S. 246 to submit cost or pricing data for any negotiated contract, but makes that requirement inapplicable where "prices are set by law or regulation." P. 371 U. S. 256.(c) Nor is a different conclusion required by § 2304(g), also added in 1962, which refers to negotiated procurements in excess of $2,500 "in which rates or prices are not fixed by law or regulation." Pp. 371 U. S. 256-261.(d) The statutes and regulations governing procurements for the Armed Services apply to purchases of milk for resale at federal commissaries, as well as to purchases of milk for mess hall use. Pp. 371 U. S. 261-263.3. Insofar as the judgment below pertains to purchases of milk with nonappropriated funds for use at various military clubs or for resale at post exchanges, it is vacated, and the case is remanded to the District Court for further proceedings. Pp. 371 U. S. 263-270.(a) If the District Court finds that California's basic milk price control law was in effect when the various tracts of land in question were acquired, judgment as to this class of purchases and sales should be for appellants. Pp. 371 U. S. 264-269.(b) If the District Court finds that California's basic milk price control law was not in effect when such tracts were acquired, then it must make particularized findings as to where the purchases and sale of milk with nonappropriated funds are made, and whether or not such tracts are areas over which the United States has "exclusive" jurisdiction, within the meaning of Art. I, § 8, cl. 17, of the Constitution. Pp. 371 U. S. 269-270.190 F. Supp. 645 affirmed in part and vacated and remanded in part. Page 371 U. S. 247

1977_75-1914

REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 436 U. S. 714.MR. JUSTICE BRENNAN delivered the opinion of the Court.Petitioners, a class of female employees of the Department of Social Services and of the Board of Education of the city of New York, commenced this action under 42 U.S.C. § 1983 in July, 1971. [Footnote 1] The gravamen of the complaint was that the Page 436 U. S. 661 Board and the Department had, as a matter of official policy, compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. [Footnote 2] Cf. Cleveland Board of Education v. LaFleur, 414 U. S. 632 (1974). The suit sought injunctive relief and backpay for periods of unlawful forced leave. Named as defendants in the action were the Department and its Commissioner, the Board and its Chancellor, and the city of New York and its Mayor. In each case, the individual defendants were sued solely in their official capacities. [Footnote 3]On cross-motions for summary judgment, the District Court for the Southern District of New York held moot petitioners' claims for injunctive and declaratory relief, since the city of New York and the Board, after the filing of the complaint, had changed their policies relating to maternity leaves so that no pregnant employee would have to take leave unless she was medically unable to continue to perform her job. 94 F. Supp. 853, 855 (1975). No one now challenges this conclusion. Page 436 U. S. 662 The court did conclude, however, that the acts complained of were unconstitutional under LaFleur, supra. 394 F. Supp. at 855. Nonetheless plaintiffs' prayers for backpay were denied because any such damages would come ultimately from the city of New York and, therefore, to hold otherwise would be to "circumven[t]" the immunity conferred on municipalities by Monroe v. Pape, 365 U. S. 167 (1961). See 394 F. Supp. at 855.On appeal, petitioners renewed their arguments that the Board of Education [Footnote 4] was not a "municipality" within the meaning of Monroe v. Pape, supra, and that, in any event, the District Court had erred in barring a damages award against the individual defendants. The Court of Appeals for the Second Circuit rejected both contentions. The court first held that the Board of Education was not a "person" under § 1983 because"it performs a vital governmental function . . . . and, significantly, while it has the right to determine how the funds appropriated to it shall be spent . . . , it has no final say in deciding what its appropriations shall be."532 F.2d 259, 263 (1976). The individual defendants, however, were "persons" under § 1983, even when sued solely in their official capacities. 532 F.2d at 264. Yet, because a damages award would "have to be paid by a city that was held not to be amenable to such an action in Monroe v. Pape," a damages action against officials sued in their official capacities could not proceed. Id. at 265.We granted certiorari in this case, 429 U.S. 1071, to consider"Whether local governmental officials and/or local independent school boards are 'persons' within the meaning of 42 U.S.C. § 1983 when equitable relief in the nature of back pay is sought against them in their official capacities?"Pet. for Cert. 8. Page 436 U. S. 663 Although, after plenary consideration, we have decided the merits of over a score of cases brought under § 1983 in which the principal defendant was a school boar [Footnote 5] -- indeed, in some of which § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343, provided the only basis for jurisdiction [Footnote 6] -- we indicated in Mt. Healthy City Board of Education v. Doyle, 429 U. S. 274, 429 U. S. 279 (1977), last Term that the question presented here was open, and would be decided "another day." That other day has come, and we now overrule Monroe v. Pape, supra, insofar as it holds that local government are wholly immune from suit under § 1983. [Footnote 7] Page 436 U. S. 664IIn Monroe v. Pape, we held that "Congress did not undertake to bring municipal corporations within the ambit of [§ 1983]." 365 U.S. at 365 U. S. 187. The sole basis for this conclusion was an inference drawn from Congress' rejection of the "Sherman amendment" to the bill which became the Civil Rights Act of 1871, 17 Stat. 13, the precursor of § 1983. The amendment would have held a municipal corporation liable for damage done to the person or property of its inhabitants by private persons "riotously and tumultuously assembled." [Footnote 8] Cong.Globe, 42d Cong., 1st Sess., 749 (1871) (hereinafter Globe). Although the Sherman amendment did not seek to amend § 1 of the Act, which is now § 1983, and although the nature of the obligation created by that amendment was vastly different from that created by § 1, the Court nonetheless concluded in Monroe that Congress must have meant to exclude municipal corporations from the coverage of § 1 because"'the House [in voting against the Sherman amendment] had solemnly decided that, in their judgment, Congress had no constitutional power to impose any obligation upon county and town organizations, the mere instrumentality for the administration of state law.'"365 U.S. at 365 U. S. 190 (emphasis added), quoting Globe 804 (Rep. Poland). This statement, we thought, showed that Congress doubted its "constitutional power . . . to impose civil liability on municipalities," 365 U.S. at 365 U. S. 190 (emphasis added), and that such doubt would have extended to any type of civil liability. [Footnote 9] Page 436 U. S. 665A fresh analysis of the debate on the Civil Rights Act of 1871, and particularly of the case law which each side mustered in its support, shows, however, that Monroe incorrectly equated the "obligation" of which Representative Poland spoke with "civil liability."A. An OverviewThere are three distinct stages in the legislative consideration of the bill which became the Civil Rights Act of 1871. On March 28, 1871, Representative Shellabarger, acting for a House select committee, reported H.R. 320, a bill "to enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes." H.R. 320 contained four sections. Section 1, now codified as 42 U.S.C. § 1983, was the subject of only limited debate, and was passed without amendment. [Footnote 10] Sections 2 through 4 dealt primarily with the "other purpose" of suppressing Ku Klux Klan violence in the Southern States. [Footnote 11] The wisdom and constitutionality of these sections -- not § 1, now § 1983 -- were the subject of almost all congressional debate, and each of these sections was amended. The House finished its initial debates on H.R. 320 on April 7, 1871, and, one week later, the Senate also voted out a bill. [Footnote 12] Again, debate on § 1 of the bill was limited, and that section was passed as introduced. Page 436 U. S. 666Immediately prior to the vote on H.R. 320 in the Senate, Senator Sherman introduced his amendment. [Footnote 13] This was not an amendment to § 1 of the bill, but was to be added as § 7 at the end of the bill. Under the Senate rules, no discussion of the amendment was allowed, and, although attempts were made to amend the amendment, it was passed as introduced. In this form, the amendment did not place liability on municipal corporations, but made any inhabitant of a municipality liable for damage inflicted by persons "riotously and tumultuously assembled." [Footnote 14]The House refused to acquiesce in a number of amendments made by the Senate, including the Sherman amendment, and the respective versions of H.R. 320 were therefore sent to a conference committee. Section 1 of the bill, however, was not a subject of this conference since, as noted, it was passed verbatim as introduced in both Houses of Congress.On April 18, 1871, the first conference committee completed its work on H.R. 320. The main features of the conference committee draft of the Sherman amendment were these: [Footnote 15] first, a cause of action was given to persons injured by"any persons riotously and tumultuously assembled together . . . with intent to deprive any person of any right conferred upon him by the Constitution and laws of the United States, or to deter him or punish him for exercising such right, or by reason of his race, color, or previous condition of servitude. . . . "Page 436 U. S. 667Second, the bill provided that the action would be against the county, city, or parish in which the riot had occurred, and that it could be maintained by either the person injured or his legal representative. Third, unlike the amendment as proposed, the conference substitute made the government defendant liable on the judgment if it was not satisfied against individual defendants who had committed the violence. If a municipality were liable, the judgment against it could be collected"by execution, attachment, mandamus, garnishment, or any other proceeding in aid of execution or applicable to the enforcement of judgments against municipal corporations; and such judgment [would become] a lien as well upon all moneys in the treasury of such county, city, or parish, as upon the other property thereof."In the ensuing debate on the first conference report, which was the first debate of any kind on the Sherman amendment, Senator Sherman explained that the purpose of his amendment was to enlist the aid of persons of property in the enforcement of the civil rights laws by making their property "responsible" for Ku Klux Klan damage. [Footnote 16] Statutes drafted on a similar theory, he stated, had long been in force in England and were in force in 1871 in a number of States. [Footnote 17] Page 436 U. S. 668 Nonetheless, there were critical differences between the conference substitute and extant state and English statutes: the conference substitute, unlike most state riot statutes, lacked a short statute of limitations and imposed liability on the government defendant whether or not it had notice of the impending riot, whether or not the municipality was authorized to exercise a police power, whether or not it exerted all reasonable efforts to stop the riot, and whether or not the rioters were caught and punished. [Footnote 18]The first conference substitute passed the Senate but was rejected by the House. House opponents, within whose ranks were some who had supported § 1, thought the Federal Government could not, consistent with the Constitution, obligate municipal corporations to keep the peace if those corporations were neither so obligated nor so authorized by their state charters. And, because of this constitutional objection, opponents of the Sherman amendment were unwilling to impose damages liability for nonperformance of a duty which Congress could not require municipalities to perform. This position is reflected in Representative Poland's statement that is quoted in Monroe. [Footnote 19]Because the House rejected the first conference report, a second conference was called, and it duly issued its report. The second conference substitute for the Sherman amendment abandoned municipal liability and, instead, made"any person Page 436 U. S. 669 or persons having knowledge [that a conspiracy to violate civil rights was afoot], and having power to prevent or aid in preventing the same,"who did not attempt to stop the same, liable to any person injured by the conspiracy. [Footnote 20] The amendment in this form was adopted by both Houses of Congress, and is now codified as 42 U. S. C. §1986.The meaning of the legislative history sketched above can most readily be developed by first considering the debate on the report of the first conference committee. This debate shows conclusively that the constitutional objections raised against the Sherman amendment -- on which our holding in Monroe was based, see supra at 664 -- would not have prohibited congressional creation of a civil remedy against state municipal corporations that infringed federal rights. Because §1 of the Civil Rights Act does not state expressly that municipal corporations come within its ambit, it is finally necessary to interpret § 1 to confirm that such corporations were indeed intended to be included within the "persons" to whom that section applies.B. Debate on the First Conference ReportThe style of argument adopted by both proponents and opponents of the Sherman amendment in both Houses of Congress was largely legal, with frequent references to cases decided by this Court and the Supreme Courts of the several States. Proponents of the Sherman amendment did not, however, discuss in detail the argument in favor of its constitutionality. Nonetheless, it is possible to piece together such an argument from the debates on the first conference report and those on § 2 of the civil rights bill, which, because it allowed the Federal Government to prosecute crimes "in the States," had also raised questions of federal power. The account of Representative Shellabarger, the House sponsor of H R. 320, is the most complete. Page 436 U. S. 670Shellabarger began his discussion of H.R. 320 by stating that "there is a domain of constitutional law involved in the right consideration of this measure which is wholly unexplored." Globe App. 67. There were analogies, however. With respect to the meaning of § 1 of the Fourteenth Amendment, and particularly its Privileges or Immunities Clause, Shellabarger relied on the statement of Mr. Justice Washington in Corfield v. Coryell, 4 Wash.C.C. 371 (CC ED Pa. 1825), which defined the privileges protected by Art. IV:"'What these fundamental privileges are[,] it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the Government;' -- ""Mark that -- ""'protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety. . . .'"Globe App. 69 (emphasis added), quoting 4 Wash.C.C. at 380-381.Building on his conclusion that citizens were owed protection -- a conclusion not disputed by opponents of the Sherman amendment [Footnote 21] -- Shellabarger then considered Congress' role in providing that protection. Here again there were precedents: "[Congress has always assumed to enforce, as against Page 436 U. S. 671 the States, and also persons, every one of the provisions of the Constitution. Most of the provisions of the Constitution which restrain and directly relate to the States, such as those in [Art. I, § 10,] relate to the divisions of the political powers of the State and General Governments. . . . These prohibitions upon political powers of the States are all of such nature that they can be, and even have been, . . . enforced by the courts of the United States declaring void all State acts of encroachment on Federal powers. Thus, and thus sufficiently, has the United States "enforced" these provisions of the Constitution. But there are some that are not of this class. These are where the court secures the rights or the liabilities of persons within the States, as between such persons and the States."These three are: first, that as to fugitives from justice; [Footnote 22] second, that as to fugitives from service, (or slaves;) [Footnote 23] third, that declaring that the 'citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.' [Footnote 24] "Page 436 U. S. 672"And, sir, every one of these -- the only provisions where it was deemed that legislation was required to enforce the constitutional provisions -- the only three where the rights or liabilities of persons in the States, as between these persons and the States, are directly provided for, Congress has by legislation affirmatively interfered to protect . . . such persons."Globe App. 69-70.Of legislation mentioned by Shellabarger, the closest analog of the Sherman amendment, ironically, was the statute implementing the fugitives from justice and fugitive slave provisions of Art. IV -- the Act of Feb. 12, 1793, 1 Stat. 302 the constitutionality of which had been sustained in 1842, in Prigg v. Pennsylvania, 16 Pet. 539. There, Mr. Justice Story, writing for the Court, held that Art. IV gave slaveowners a federal right to the unhindered possession of their slaves in whatever State such slaves might be found. 16 Pet. at 41 U. S. 612. Because state process for recovering runaway slaves might be inadequate or even hostile to the rights of the slaveowner, the right intended to be conferred could be negated if left to state implementation. Id. at 41 U. S. 614. Thus, since the Constitution guaranteed the right, and this, in turn, required a remedy, Story held it to be a "natural inference" that Congress had the power itself to ensure an appropriate (in the Necessary and Proper Clause sense) remedy for the right. Id. at 41 U. S. 615.Building on Prigg, Shellabarger argued that a remedy against municipalities and counties was an appropriate -- and hence constitutional -- method for ensuring the protection which the Fourteenth Amendment made every citizen's federal right. [Footnote 25] This much was clear from the adoption of such statutes by the several States as devices for suppressing riot. [Footnote 26] Thus, said Shellabarger, the only serious question remaining Page 436 U. S. 673 was"whether, since a county is an integer or part of a State, the United States can impose upon it, as such, any obligations to keep the peace in obedience to United States laws. [Footnote 27]"This he answered affirmatively, citing Board of Comm'rs v. Aspinwall, 24 How. 376 (1861), the first of many cases [Footnote 28] upholding the power of federal courts to enforce the Contract Clause against municipalities. [Footnote 29]House opponents of the Sherman amendment -- whose views are particularly important, since only the House voted down the amendment -- did not dispute Shellabarger's claim that the Fourteenth Amendment created a federal right to protection, see n. 21 supra, but they argued that the local units of government upon which the amendment fastened liability were not obligated to keep the peace at state law, and further that the Federal Government could not constitutionally require local governments to create police forces, whether this requirement was levied directly, or indirectly by imposing damages for breach of the peace on municipalities. The most complete statement of this position is that of Representative Blair: [Footnote 30]"The proposition known as the Sherman amendment . . . Page 436 U. S. 674 is entirely new. It is altogether without a precedent in this country. . . . That amendment claims the power in the General Government to go into the States of this Union and lay such obligations as it may please upon the municipalities, which are the creations of the States alone. . . . "". . . [H]ere it is proposed not to carry into effect an obligation which rests upon the municipality, but to Page 436 U. S. 675 create that obligation, and that is the provision I am unable to assent to. The parallel of the hundred does not in the least meet the case. The power that laid the obligation upon the hundred first put the duty upon the hundred that it should perform in that regard, and failing to meet the obligation which had been laid upon it, it was very proper that it should suffer damage for its neglect. . . ."". . . [T]here are certain rights and duties that belong to the States, . . . there are certain powers that inhere in the State governments. They create these municipalities, they say what their powers shall be and what their obligations shall be. If the Government of the United States can step in and add to those obligations, may it not utterly destroy the municipality? If it can say that it shall be liable for damages occurring from a riot, . . . where [will] its power . . . stop and what obligations . . . might [it] not lay upon a municipality. . . . ""Now, only the other day, the Supreme Court . . . decided [in Collector v. Day, 11 Wall. 113 (1871)] that there is no power in the Government of the United States, under its authority to tax, to tax the salary of a State officer. Why? Simply because the power to tax involves the power to destroy, and it was not the intent to give the Government of the United States power to destroy the government of the States in any respect. It was held also in the case of Prigg vs. Pennsylvania [16 Pet. 539 (1842)] that it is not within the power of the Congress of the United States to lay duties upon a State officer; that we cannot command a State officer to do any duty whatever, as such; and I ask . . . the difference between that and commanding a municipality, which is equally the creature of the State, to perform a duty."Globe 795.Any attempt to impute a unitary constitutional theory to opponents of the Sherman amendment is, of course, fraught Page 436 U. S. 676 with difficulties, not the least of which is that most Members of Congress did not speak to the issue of the constitutionality of the amendment. Nonetheless, two considerations lead us to conclude that opponents of the Sherman amendment found it unconstitutional substantially because of the reasons stated by Representative Blair: first, Blair's analysis is precisely that of Poland, whose views were quoted as authoritative in Monroe, see supra at 436 U. S. 664, and that analysis was shared in large part by all House opponents who addressed the constitutionality of the Sherman amendment. [Footnote 31] Second, Blair's exegesis of the reigning constitutional theory of his day, as we shall explain, was clearly supported by precedent -- albeit precedent that has not survived, see Ex parte Virginia, 100 U. S. 339, 100 U. S. 347-348 (1880); Graves v. New York ex rel. O'Keefe, 306 U. S. 466, 306 U. S. 486 (1939) -- and no other constitutional formula was advanced by participants in the House debates.Collector v. Day, cited by Blair, was the clearest and, at the time of the debates, the most recent pronouncement of a doctrine of coordinate sovereignty that, as Blair stated, placed limits on even the enumerated powers of the National Government in favor of protecting state prerogatives. There, the Court held that the United States could not tax the income of Day, a Massachusetts state judge, because the independence of the States within their legitimate spheres would be imperiled if the instrumentalities through which States executed their powers were "subject to the control of another and distinct government." 11 Wall. at 78 U. S. 127. Although the Court in Day apparently rested this holding in part on the proposition that the taxing "power acknowledges no limits but the will of the legislative body imposing the tax," id. at 78 U. S. 125-126; cf. 17 U. S. Maryland, 4 Wheat. 316 (1819), the Court had, in other cases, limited other national powers in order to avoid interference with the States. [Footnote 32] Page 436 U. S. 677In Prigg v. Pennsylvania, for example, Mr. Justice Story, in addition to confirming a broad national power to legislate under the Fugitive Slave Clause, see supra at 436 U. S. 672, held that Congress could not "insist that states . . . provide means to carry into effect the duties of the national government." 16 Pet. at 41 U. S. 615-16. [Footnote 33] And Mr. Justice McLean agreed that, "[a]s a general principle," it was true "that Congress had no power to impose duties on state officers, as provided in the [Act of Feb. 12, 1793]." Nonetheless, he wondered whether Congress might not impose "positive" duties on state officers where a clause of the Constitution, like the Fugitive Slave Clause, seemed to require affirmative government assistance, rather than restraint of government, to secure federal rights. See id. at 41 U. S. 664-665.Had Mr. Justice McLean been correct in his suggestion that, where the Constitution envisioned affirmative government assistance, the States or their officers or instrumentalities could be required to provide it, there would have been little doubt that Congress could have insisted that municipalities afford by "positive" action the protection [Footnote 34] owed individuals under § 1 of the Fourteenth Amendment whether or not municipalities were obligated by state law to keep the peace. However, any such argument, largely foreclosed by Prigg, was made Page 436 U. S. 678 impossible by the Court's holding in Kentucky v. Dennison, 24 How. 66 (1861). There, the Court was asked to require Dennison, the Governor of Ohio, to hand over Lago, a fugitive from justice wanted in Kentucky, as required by § 1 of the Act of Feb. 12, 1793, [Footnote 35] which implemented Art. IV, § 2, cl. 2, of the Constitution. Mr. Chief Justice Taney, writing for a unanimous Court, refused to enforce that section of the Act:"[W]e think it clear that the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State."24 How. at 65 U. S. 107-108The rationale of Dennison -- that the Nation could not impose duties on state officers since that might impede States in their legitimate activities -- is obviously identical to that which animated the decision in Collector v. Day. See supra at 436 U. S. 676. And, as Blair indicated, municipalities, as instrumentalities through which States executed their policies, could be equally disabled from carrying out state policies if they were also obligated to carry out federally imposed duties. Although no one cited Dennison by name, the principle for which it Page 436 U. S. 679 stands was well known to Members of Congress, [Footnote 36] many of whom discussed Day [Footnote 37] as well as a series of State Supreme Court cases [Footnote 38] in the mid-1860's which had invalidated a federal tax on the process of state courts on the ground that the tax threatened the independence of a vital state function. [Footnote 39] Thus, there was ample support for Blair's view that the Sherman amendment, by putting municipalities to the Hobson's choice of keeping the peace or paying civil damages, attempted to impose obligations on municipalities by indirection that could not be imposed directly, thereby threatening to "destroy the government of the States." Globe 795.If municipal liability under § 1 of the Civil Rights Act of 1871 created a similar Hobson's choice, we might conclude, as Monroe did, that Congress could not have intended municipalities to be among the "persons" to which that section applied. But this is not the case.First, opponents expressly distinguished between imposing an obligation to keep the peace and merely imposing civil liability for damages on a municipality that was obligated by state law to keep the peace, but which had not in violation of the Fourteenth Amendment. Representative Poland, for example, reasoning from Contract Clause precedents, indicated that Congress could constitutionally confer jurisdiction on the federal courts to entertain suits seeking to hold municipalities Page 436 U. S. 680 liable for using their authorized powers in violation of the Constitution -- which is as far as § 1 of the Civil Rights Act went:"I presume . . . that where a State had imposed a duty [to keep the peace] upon [a] municipality . . . , an action would be allowed to be maintained against them in the courts of the United States under the ordinary restrictions as to jurisdiction. But the enforcing a liability, existing by their own contract, or by a State law, in the courts is a very widely different thing from devolving a new duty or liability upon them by the national Government, which has no power either to create or destroy them, and no power or control over them whatever."Globe 794.Representative Burchard agreed:"[T]here is no duty imposed by the Constitution of the United States, or usually by State laws, upon a county to protect the people of that county against the commission of the offenses herein enumerated, such as the burning of buildings or any other injury to property or injury to person. Police powers are not conferred upon counties as corporations; they are conferred upon cities that have qualified legislative power. And so far as cities are concerned, where the equal protection required to be afforded by a State is imposed upon a city by State laws, perhaps the United States courts could enforce its performance. But counties . . . do not have any control of the police. . . ."Id. at 795. See also the views of Rep. Willard, discussed at n 30, supra. Second, the doctrine of dual sovereignty apparently put no limit on the power of federal courts to enforce the Constitution against municipalities that violated it. Under the theory of dual sovereignty set out in Prigg, this is quite understandable. So long as federal courts were vindicating the Federal Constitution, they were providing the "positive" government action Page 436 U. S. 681 required to protect federal constitutional rights, and no question was raised of enlisting the States in "positive" action. The limits of the principles announced in Dennison and Day are not so well defined in logic, but are clear as a matter of history. It must be remembered that the same Court which rendered Day also vigorously enforced the Contract Clause against municipalities -- an enforcement effort which included various forms of "positive" relief, such as ordering that taxes be levied and collected to discharge federal court judgments, once a constitutional infraction was found. [Footnote 40] Thus, federal judicial enforcement of the Constitution's express limits on state power, since it was done so frequently, must, notwithstanding anything said in Dennison or Day, have been permissible, at least so long as the interpretation of the Constitution was left in the hands of the judiciary. Since § 1 of the Civil Rights Act simply conferred jurisdiction on the federal courts to enforce § 1 of the Fourteenth Amendment -- a situation precisely analogous to the grant of diversity jurisdiction under which the Contract Clause was enforced against municipalities Page 436 U. S. 682 -- there is no reason to suppose that opponents of the Sherman amendment would have found any constitutional barrier to § 1 suits against municipalities.Finally, the very votes of those Members of Congress, who opposed the Sherman amendment, but who had voted for § 1, confirm that the liability imposed by § 1 was something very different from that imposed by the amendment. Section 1 without question could be used to obtain a damages judgment against state or municipal officials who violated federal constitutional rights while acting under color of law. [Footnote 41] However, for Prigg-Dennison-Day purposes, as Blair and others recognized, [Footnote 42] there was no distinction of constitutional magnitude between officers and agents -- including corporate agents -- of the State: both were state instrumentalities, and the State could be impeded no matter over which sort of instrumentality the Federal Government sought to assert its power. Dennison and Day, after all, were not suits against municipalities, but against officers, and Blair was quite conscious that he was extending these cases by applying them to municipal corporations. [Footnote 43] Nonetheless, Senator Thurman, who gave the most exhaustive critique of § 1 -- inter alia, complaining that it would be applied to state officers, see Globe App. 217 -- and who opposed both § 1 and the Sherman amendment, the latter on Prigg grounds, agreed unequivocally that § 1 was constitutional. [Footnote 44] Page 436 U. S. 683 Those who voted for § 1 must similarly have believed in its constitutionality despite Prigg, Dennison, and Day.C. Debate on § 1 of the Civil Rights BillFrom the foregoing discussion, it is readily apparent that nothing said in debate on the Sherman amendment would have prevented holding a municipality liable under § 1 of the Civil Rights Act for its own violations of the Fourteenth Amendment. The question remains, however, whether the general language describing those to be liable under § 1 -- "any person" -- covers more than natural persons. An examination of the debate on § 1 and application of appropriate rules of construction show unequivocally that § 1 was intended to cover legal, as well as natural, persons.Representative Shellabarger was the first to explain the function of § 1:"[Section 1] not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights to which they are entitled under the Constitution by reason and virtue of their national citizenship."Globe App. 68. By extending a remedy to all people, including whites, § 1 went beyond the mischief to which the remaining sections of the 1871 Act were addressed. Representative Shellabarger also stated without reservation that the constitutionality of § 2 of the Civil Rights Act of 1866 controlled the constitutionality of § 1 of the 1871 Act, and that the former had been Page 436 U. S. 684 approved by "the supreme courts of at least three States of this Union" and by Mr. Justice Swayne, sitting on circuit, who had concluded: "We have no doubt of the constitutionality of every provision of this act.'" Globe App. 68. Representative Shellabarger then went on to describe how the courts would and should interpret § 1:"This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people. . . . Chief Justice Jay and also Story say:"" Where a power is remedial in its nature, there is much reason to contend that it ought to be construed liberally, and it is generally adopted in the interpretation of laws.""1 story on Constitution, sec. 429."Globe App. at 68.The sentiments expressed in Representative Shellabarger's opening speech were echoed by Senator Edmunds, the manager of H.R. 320 in the Senate:"The first section is one that I believe nobody objects to, as defining the rights secured by the Constitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill [of 1866], which have since become a part of the Constitution."Globe 568. Page 436 U. S. 685"[Section 1 is] so very simple, and really reenact[s] the Constitution."Id. at 569. And he agreed that the bill "secure[d] the rights of white men as much as of colored men." Id. at 696.In both Houses, statements of the supporters of § 1 corroborated that Congress, in enacting § 1, intended to give a broad remedy for violations of federally protected civil rights. [Footnote 45] Moreover, since municipalities, through their official Page 436 U. S. 686 acts could, equally with natural persons, create the harms intended to be remedied by § 1, and, further, since Congress intended § 1 to be broadly construed, there is no reason to suppose that municipal corporations would have been excluded from the sweep of § 1. Cf., e.g., Ex parte Virginia, 100 U. S. 339, 100 U. S. 346-347 (1880); Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278, 227 U. S. 286-287, 227 U. S. 294-296 (1913). One need not rely on this inference alone, however, for the debates show that Members of Congress understood "persons" to include municipal corporations.Representative Bingham, for example, in discussing § 1 of the bill, explained that he had drafted § 1 of the Fourteenth Amendment with the case of Barron v. Mayor of Baltimore, 7 Pet. 243 (1833), especially in mind."In [that] case, the Page 436 U. S. 687 city had taken private property for public use, without compensation . . . , and there was no redress for the wrong. . . ."Globe App. 84 (emphasis added). Bingham's further remarks clearly indicate his view that such takings by cities, as had occurred in Barron, would be redressable under § 1 of the bill. See Globe App. 85. More generally, and as Bingham's remarks confirm, § 1 of the bill would logically be the vehicle by which Congress provided redress for takings, since that section provided the only civil remedy for Fourteenth Amendment violations and that Amendment unequivocally prohibited uncompensated takings. [Footnote 46] Given this purpose, it beggars reason to suppose that Congress would have exempted municipalities from suit, insisting instead that compensation for a taking come from an officer in his individual capacity, rather than from the government unit that had the benefit of the property taken. [Footnote 47]In addition, by 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis. This had not always been so. When this Court first considered the question of the status of corporations, Mr. Chief Justice Marshall, writing for the Court, denied that corporations "as such" were persons as that term was used in Art. III and the Judiciary Act of 1789. See Bank of the United States v. Deveaux, 5 Cranch 61, 9 U. S. 86 (1809). [Footnote 48] By 1844, however, the Deveaux doctrine was unhesitatingly abandoned:"[A] corporation created by and doing business in a particular Page 436 U. S. 688 state, is to be deemed to all intents and purposes as a person, although an artificial person, . . . capable of being treated as a citizen of that state, as much as a natural person."Louisville R. Co. v. Letson, 2 How. 497, 43 U. S. 558 (1844) (emphasis added), discussed in Globe 752. And only two years before the debates on the Civil Rights Act, in Cowles v. Mercer County, 7 Wall. 118, 74 U. S. 121 (1869), the Letson principle was automatically and without discussion extended to municipal corporations. Under this doctrine, municipal corporations were routinely sued in the federal courts [Footnote 49] and this fact was well known to Members of Congress. [Footnote 50]That the "usual" meaning of the word "person" would extend to municipal corporations is also evidenced by an Act of Congress which had been passed only months before the Civil Rights Act was passed. This Act provided that"in all acts hereafter passed . . . , the word 'person' may extend and be applied to bodies politic and corporate . . . unless the context shows that such words were intended to be used in a more limited sense."Act of Feb. 25, 1871, § 2, 16 Stat. 431. Municipal corporations in 1871 were included within the phrase "bodies politic and corporate" [Footnote 51] and, accordingly, the Page 436 U. S. 689 "plain meaning" of § 1 is that local government bodies were to be included within the ambit of the persons who could be sued under § 1 of the Civil Rights Act. Indeed, a Circuit Judge, writing in 1873 in what is apparently the first reported case under § 1, read the Dictionary Act in precisely this way in a case involving a corporate plaintiff and a municipal defendant. [Footnote 52] See Northwestern Fertilizing Co. v. Hyde Park, 18 F. Cas. 393, 394 (No. 10,336) (CC ND Ill. 1873). [Footnote 53] Page 436 U. S. 690IIOur analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. [Footnote 54] Local governing bodies, [Footnote 55] therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional Page 436 U. S. 691 deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. H. Kress & Co., 398 U. S. 144, 398 U. S. 167-168 (1970):"Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials. . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a 'custom or usage' with the force of law. [Footnote 56]"On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor -- or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.We begin with the language of § 1983 as originally passed:"[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such Page 436 U. S. 692 law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress. . . ."17 Stat. 13 (emphasis added). The italicized language plainly imposes liability on a government that, under color of some official policy, "causes" an employee to violate another's constitutional rights. At the same time, that language cannot be easily read to impose liability vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with a tortfeasor. Indeed, the fact that Congress did specifically provide that A's tort. became B's liability if B "caused" A to subject another to a tort suggests that Congress did not intend § 1983 liability to attach where such causation was absent. [Footnote 57] See Rizzo v. Goode, 423 U. S. 362, 423 U. S. 370-371 (1976). Page 436 U. S. 693Equally important, creation of a federal law of respondeat superior would have raised all the constitutional problems associated with the obligation to keep the peace, an obligation Congress chose not to impose because it thought imposition of such an obligation unconstitutional. To this day, there is disagreement about the basis for imposing liability on an employer for the torts of an employee when the sole nexus between the employer and the tort is the fact of the employer-employee relationship. See W. Prosser, Law of Torts § 69, p. 459 (4th ed.1971). Nonetheless, two justifications tend to stand out. First is the common sense notion that, no matter how blameless an employer appears to be in an individual case, accidents might nonetheless be reduced if employers had to bear the cost of accidents. See, e.g., ibid.; 2 F. Harper & F. James, Law of Torts, § 26.3, pp. 1368-1369 (1956). Second is the argument that the cost of accidents should be Page 436 U. S. 694 spread to the community as a whole on an insurance theory. See, e.g., id. § 6.5; Prosser, supra at 459. [Footnote 58]The first justification is of the same sort that was offered for statutes like the Sherman amendment:"The obligation to make compensation for injury resulting from riot is by arbitrary enactment of statutes, affirmatory law, and the reason of passing the statute is to secure a more perfect police regulation."Globe 777 (Sen. Frelinghuysen). This justification was obviously insufficient to sustain the amendment against perceived constitutional difficulties, and there is no reason to suppose that a more general liability imposed for a similar reason would have been thought less constitutionally objectionable. The second justification was similarly put forward as a justification for the Sherman amendment: "we do not look upon [the Sherman amendment] as a punishment. . . . It is a mutual insurance." Id. at 792 (Rep. Butler). Again, this justification was insufficient to sustain the amendment.We conclude, therefore, that a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government, as an entity, is responsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitutional violation found by the District Court, see supra at Page 436 U. S. 695 436 U. S. 660-662, and n. 2, we must reverse the judgment below. In so doing, we have no occasion to address, and do not address, what the full contours of municipal liability under § 1983 may be. We have attempted only to sketch so much of the § 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day.IIIAlthough we have stated that stare decisis has more force in statutory analysis than in constitutional adjudication because, in the former situation, Congress can correct our mistakes through legislation, see, e.g., Edelman v. Jordan, 415 U. S. 651, 415 U. S. 671, and n. 14 (1974), we have never applied stare decisis mechanically to prohibit overruling our earlier decisions determining the meaning of statutes. See, e.g., Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U. S. 36, 433 U. S. 47-49 (1977); Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 285 U. S. 406 n. 1 (1932) (Brandeis, J., dissenting) (collecting cases). Nor is this a case where we should "place on the shoulders of Congress the burden of the Court's own error." Girouard v. United States, 328 U. S. 61, 328 U. S. 70 (1946).First, Monroe v. Pape, insofar as it completely immunizes municipalities from suit under § 1983, was a departure from prior practice. See, e.g., Northwestern Fertilizing Co. v. Hyde Park, 18 F. Cas. 393 (No. 10,336) (CC ND Ill. 1873); City of Manchester v. Leiby, 117 F.2d 661 (CA1 1941); Hannan v. City of Haverhill, 120 F.2d 87 (CA1 1941); Douglas v. City of Jeannette, 319 U. S. 157 (1943); Holmes v. Atlanta, 350 U.S. 879 (1955), in each of which municipalities were defendants in § 1983 suits. [Footnote 59] Moreover, the constitutional defect Page 436 U. S. 696 that led to the rejection of the Sherman amendment would not have distinguished between municipalities and school boards, each of which is an instrumentality of state administration. See supra at 436 U. S. 673-682. For this reason, our cases -- decided both before and after Monroe, see n 5, supra -- holding school boards liable in § 1983 actions are inconsistent with Monroe, especially as Monroe's immunizing principle was extended to suits for injunctive relief in City of Kenosha v. Bruno, 412 U. S. 507 (1973). [Footnote 60] And although, in many of these cases, jurisdiction was not questioned, we ought not "disregard the implications of an exercise of judicial authority assumed to be proper for [100] years." Brown Shoe Co. v. United States, 370 U. S. 294, 370 U. S. 307 (1962); see Bank of the United States v. Deveaux, 5 Cranch at 9 U. S. 88 (Marshall, C.J.) ("Those decisions are not cited as authority . . . , but they have much weight, as they show that this point neither occurred to the bar or the bench"). Thus, while we have reaffirmed Monroe without further examination on three occasions, [Footnote 61] it can scarcely be said that Monroe is so consistent with the warp and woof of civil rights law as to be beyond question.Second, the principle of blanket immunity established in Monroe cannot be cabined short of school boards. Yet such an extension would itself be inconsistent with recent expressions of congressional intent. In the wake of our decisions, Congress not only has shown no hostility to federal court decisions against school boards, but it has indeed rejected efforts to strip the federal courts of jurisdiction over school boards. [Footnote 62] Moreover, recognizing that school boards are often Page 436 U. S. 697 defendants in school desegregation suits, which have almost without exception been § 1983 suits, Congress has twice passed legislation authorizing grants to school boards to assist them in complying with federal court decrees. [Footnote 63] Finally, in Page 436 U. S. 698 regard to the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988 (1976 ed.), which allows prevailing parties (in the discretion of the court) in § 1983 suits Page 436 U. S. 699 to obtain attorney's fees from the losing parties, the Senate stated:"[D]efendants in these cases are often State or local bodies or State or local officials. In such cases, it is intended that the attorneys' fees, like other items of costs, will be collected either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (whether or not the agency or government is a named party)."S.Rep. No. 94-1011, p. 5 (1976) (emphasis added; footnotes omitted). Far from showing that Congress has relied on Monroe, therefore, events since 1961 show that Congress has refused to extend the benefits of Monroe to school boards, and has attempted to allow awards of attorney's fees against local governments even though Monroe, City of Kenosha v. Bruno, and Aldinger v. Howard, 427 U. S. 1 (1976), have made the joinder of such governments impossible. [Footnote 64]Third, municipalities can assert no reliance claim which can Page 436 U. S. 700 support an absolute immunity. As Mr. Justice Frankfurter said in Monroe,"[t]his is not an area of commercial law in which, presumably, individuals may have arranged their affairs in reliance on the expected stability of decision."365 U.S. at 365 U. S. 221-222 (dissenting in part). Indeed, municipalities simply cannot "arrange their affairs" on an assumption that they can violate constitutional rights indefinitely, since injunctive suits against local officials under § 1983 would prohibit any such arrangement. And it scarcely need be mentioned that nothing in Monroe encourages municipalities to violate constitutional rights or even suggests that such violations are anything other than completely wrong.Finally, even under the most stringent test for the propriety of overruling a statutory decision proposed by Mr. Justice Harlan in Monroe [Footnote 65] -- "that it appear beyond doubt from the legislative history of the 1871 statute that [Monroe] misapprehended the meaning of the [section]," 365 U.S. at 365 U. S. 192 (concurring opinion) -- the overruling of Monroe insofar as it holds that local governments are not "persons" who may be defendants in § 1983 suits is clearly proper. It is simply beyond doubt that, under the 1871 Congress' view of the law, were § 1983 liability unconstitutional as to local governments, it would have been equally unconstitutional as to state officers. Yet everyone -- proponents and opponents alike -- knew § 1983 would be applied to state officers, and nonetheless stated that § 1983 was constitutional. See supra at 436 U. S. 680-682. And, moreover, there can be no doubt that § 1 of the Civil Rights Act was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected Page 436 U. S. 701 rights. Therefore, absent a clear statement in the legislative history supporting the conclusion that § 1 was not to apply to the official acts of a municipal corporation -- which simply is not present -- there is no justification for excluding municipalities from the "persons" covered by § 1.For the reasons stated above, therefore, we hold that stare decisis does not bar our overruling of Monroe insofar as it is inconsistent with Parts I and II of this opinion. [Footnote 66]IVSince the question whether local government bodies should be afforded some form of official immunity was not presented as a question to be decided on this petition and was not briefed by the parties or addressed by the courts below, we express no views on the scope of any municipal immunity beyond holding that municipal bodies sued under § 1983 cannot be entitled to an absolute immunity, lest our decision that such bodies are subject to suit under § 1983 "be drained of meaning," Scheuer v. Rhodes, 416 U. S. 232, 416 U. S. 248 (1974). Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 403 U. S. 397-398 (1971). Page 436 U. S. 702VFor the reasons stated above, the judgment of the Court of Appeals isReversed

U.S. Supreme CourtMonell v. Department of Soc. Svcs., 436 U.S. 658 (1978)Monell v. Department of Social Services of the City of New YorkNo. 75-1914Argued November 2, 1977Decided June 6, 1978436 U.S. 658SyllabusPetitioners, female employees of the Department of Social Services and the Board of Education of the city of New York, brought this class action against the Department and its Commissioner, the Board and its Chancellor, and the city of New York and its Mayor under 42 U.S.C. § 19&3, which provides that every "person" who, under color of any statute, ordinance, regulation, custom, or usage of any State subjects, or "causes to be subjected," any person to the deprivation of any federally protected rights, privileges, or immunities shall be civilly liable to the injured party. In each case, the individual defendants were sued solely in their official capacities. The gravamen of the complaint was that the Board and the Department had, as a matter of official policy, compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons. The District Court found that petitioners' constitutional rights had been violated, but held that petitioners' claims for injunctive relief were mooted by a supervening change in the official maternity leave policy. That court further held that Monroe v. Pape, 365 U. S. 167, barred recovery of backpay from the Department, the Board, and the city. In addition, to avoid circumvention of the immunity conferred by Monroe, the District Court held that natural persons sued in their official capacities as officers of a local government also enjoy the immunity conferred on local governments by that decision. The Court of Appeals affirmed on a similar theory.Held:1. In Monroe v. Pape, supra, after examining the legislative history of the Civil Rights Act of 1871, now codified as 42 U.S.C. § 1983, and particularly the rejection of the so-called Sherman amendment, the Court held that Congress, in 1871, doubted its constitutional authority to impose civil liability on municipalities, and therefore could not have intended to include municipal bodies within the class of "persons" subject to the Act. Reexamination of this legislative history compels the conclusion that Congress, in 1871, would not have thought § 1983 constitutionally infirm if it applied to local governments. In addition, that history confirms that local governments were intended to be included Page 436 U. S. 659 among the "persons" to which § 1983 applies. Accordingly, Monroe v. Pape is overruled insofar as it holds that local governments are wholly immune from suit under § 1983. Pp. 436 U. S. 664-689.2. Local governing bodies (and local officials sued in their official capacities) can, therefore, be sued directly under § 1983 for monetary, declaratory, and injunctive relief in those situations where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted or promulgated by those whose edicts or acts may fairly be said to represent official policy. In addition, local governments, like every other § 1983 "person," may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such custom has not received formal approval through the government's official decisionmaking channels. Pp. 436 U. S. 690-691.3. On the other hand, the language and legislative history of § 1983 compel the conclusion that Congress did not intend a local government to be held liable solely because it employs a tortfeasor -- in other words, a local government cannot be held liable under § 1983 on a respondeat superior theory. Pp. 436 U. S. 691-695.4. Considerations of stare decisis do not counsel against overruling Monroe v. Pape insofar as it is inconsistent with this opinion. Pp. 436 U. S. 695-701.(a) Monroe v. Pape departed from prior practice insofar as it completely immunized municipalities from suit under § 1983. Moreover, since the reasoning of Monroe does not allow a distinction to be drawn between municipalities and school boards, this Court's many cases holding school boards liable in § 1983 actions are inconsistent with Monroe, especially as the principle of that case was extended to suits for injunctive relief in City of Kenosha v. Bruno, 412 U. S. 507. Pp. 436 U. S. 695-696.(b) Similarly, extending absolute immunity to school boards would be inconsistent with several instances in which Congress has refused to immunize school boards from federal jurisdiction under § 1983. Pp. 436 U. S. 696-699.(c) In addition, municipalities cannot have arranged their affairs on an assumption that they can violate constitutional rights for an indefinite period; accordingly, municipalities have no reliance interest that would support an absolute immunity. Pp. 436 U. S. 699-700.(d) Finally, it appears beyond doubt from the legislative history of the Civil Rights Act of 1871 that Monroe misapprehended the meaning of the Act. Were § 1983 unconstitutional as to local governments, it would have been equally unconstitutional as to state or local officers, Page 436 U. S. 660 yet the 1871 Congress clearly intended § 1983 to apply to such officers and all agreed that such officers could constitutionally be subjected to liability under § 1983. The Act also unquestionably was intended to provide a remedy, to be broadly construed, against all forms of official violation of federally protected rights. Therefore, without a clear statement in the legislative history, which is not present, there is no justification for excluding municipalities from the "persons" covered by § 1983. Pp 436 U. S. 700-701.5. Local governments sued under § 1983 cannot be entitled to an absolute immunity, lest today's decision "be drained of meaning," Scheuer v. Rhodes, 416 U. S. 232, 416 U. S. 248. P. 436 U. S. 701.532 F.2d 259, reversed.BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined, and in Parts I, III, and V of which STEVENS, J., joined. POWELL, J., filed a concurring opinion, post, p. 436 U. S. 704. STEVENS, J., filed a statement concurring in part, post, p. 436 U. S. 714. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 436 U. S. 714.

1974_73-1452

MR. JUSTICE BLACKMUN delivered the opinion of the Court.This case presents a variation of the fact situation encountered by the Court in Harris v. New York, 401 U. S. 222 (1971): when a suspect, who is in the custody of a state police officer, has been given full Miranda warnings [Footnote 1] Page 420 U. S. 715 and accepts them, and then later states that he would like to telephone a lawyer but is told that this cannot be done until the officer and the suspect reach the station, and the suspect then provides inculpatory information, is that information admissible in evidence solely for impeachment purposes after the suspect has taken the stand and testified contrarily to the inculpatory information, or is it inadmissible under the Fifth and Fourteenth Amendments?IThe facts are not in dispute. In August, 1972, bicycles were taken from two residential garages in the Moyina Heights area of Klamath Falls, Ore. Respondent Hass, in due course, was indicted for burglary in the first degree, in violation of Ore.Rev.Stat. § 164.225, with respect to the bicycle taken from the garage attached to one of the residences, a house occupied by a family named Lehman. He was not charged with the other burglary.On the day of the thefts, Officer Osterholme of the Oregon State Police traced an automobile license number to the place where Hass lived. The officer met Hass there and placed him under arrest. App. 15. At Hass' trial, Osterholme testified in camera that, after giving Hass the warnings prescribed by Miranda v. Arizona, 384 U. S. 436, 384 U. S. 467-473 (1966), he asked Hass about the theft of the bicycle taken from the Lehman residence. Hass admitted that he had taken two bicycles, but stated that he was not sure, at first, which one Osterholme was talking about. App. 10. He further said that he had returned one of them, and that the other was where he had left it. Id. at 12. Osterholme and Hass then departed in a patrol car for the site. Id. at 12-13. On the way, Hass opined that he "was in a lot of trouble," id. at 13, 26, and would like to telephone his attorney. Id. at 13. Osterholme replied that he could telephone the lawyer Page 420 U. S. 716 "as soon as we got to the office." Ibid. Thereafter, respondent pointed out a place in the brush where the bicycle was found.The court ruled that statements made by Hass after he said he wanted to see an attorney, and his identification of the bicycle's location, were not admissible. The prosecution then elicited from Osterholme, in its case in chief before the jury, that Hass had admitted to the witness that he had taken two bicycles that day because he needed money, that he had given one back, and that the other had been recovered. Id. at 31-32.Later in the trial, Hass took the stand. He testified that he and two friends, Walker and Lee, were "just riding around" in his Volkswagen truck, id. at 42; that the other two got out and respondent drove slowly down the street; that Lee suddenly reappeared, tossed a bicycle into the truck, and "ducked down" on the floor of the vehicle, id. at 44; that respondent did not know that Lee "stole it at first," id. at 45; that it was his own intention to get rid of the bike; that they were overtaken by a jeep occupied by Mr. Lehman and his son; that the son pointed out Lee as "that's the guy," id. at 46; that Lee then returned the bike to the Lehmans; that respondent drove on and came upon Walker "sitting down there and he had this other bicycle by him," and threw it into the truck, id. at 48; that he, respondent, went "out by Washburn Way and I threw it as far as I could," [Footnote 2] ibid.; that later he told police he had stolen two bicycles, id. at 49; that he had had no idea what Lee and Walker were going to do, id. at 61; and that he did not see any of the Page 420 U. S. 717 bikes being taken and did not know "where those residences were located," id. at 63.The prosecution then recalled Officer Osterholme in rebuttal. He testified that Hass had pointed out the two houses from which the bicycles were taken. Id. at 65. On cross-examination, the officer testified that, prior to so doing, Hass had told Osterholme "that he knew where the bicycles came from, however, he didn't know the exact street address." Id. at 66. Osterholme also stated that Lee was along at the time, but that Lee "had some difficulty" in identifying the residences "until Mr. Hass actually pointed them," and then "he recognized it." Id. at 78.The trial court, at the request of the defense, then advised the jury that the portion of Officer Osterholme's testimony describing the statement made by Hass to him"may not be used by you as proof of the Defendant's guilt . . . , but you may consider that testimony only as it bears on the [credibility] of the Defendant as a witness when he testified on the witness stand."Id. at 79.Respondent again took the stand, and said that Osterholme's testimony that he took him out to the residences and that respondent pointed out the houses was "wrong." Id. at 81.The jury returned a verdict of guilty. Hass received a sentence of two years' probation and a $250 fine. The Oregon Court of Appeals, feeling itself bound by the earlier Oregon decision in State v. Brewton, 247 Ore. 241, 422 P.2d 581, cert. denied, 387 U.S. 943 (1967), a pre-Harris case, reversed on the ground that Hass' statements were improperly used to impeach his testimony. 13 Ore.App. 368, 374, 510 P.2d 852, 855 (1973). On petition for review, the Supreme Court of Oregon, by a 4-to-3 vote, affirmed. 267 Ore. 489, 517 P.2d 671 (1973). The court reasoned that, in a situation of proper Miranda warnings, Page 420 U. S. 718 as here, the police have nothing to lose, and perhaps could gain something, for impeachment purposes, by continuing their interrogation after the warnings; thus there is no deterrence. In contrast, the court said, where warnings are yet to be given, there is an element of deterrence, for the police "will not take the chance of losing incriminating evidence for their case in chief by not giving adequate warnings." Id. at 492, 517 P.2d at 673. The three dissenters perceived no difference between the two situations. Id. at 493 495, 517 P.2d at 674. Because the result was in conflict with that reached by the North Carolina court in State v. Bryant, 280 N.C. 551, 554 556, 187 S.E.2d 111, 113-114 (1972), [Footnote 3] and because it bore upon the reach of our decision in Harris v. New York, 401 U. S. 222 (1971), we granted certiorari. 419 U.S. 823 (1974). We reverse.IIThe respondent raises some preliminary arguments. We mention them in passing: Page 420 U. S. 7191. Hass suggests that, "when state law is more restrictive against the prosecution than federal law," this Court has no power "to compel a state to conform to federal law." Brief for Respondent 1. This, apparently, is proffered as a reference to our expressions that a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards. See, e.g., Cooper v. California, 386 U. S. 58, 386 U. S. 62 (1967); Sibron v. New York, 392 U. S. 40, 392 U. S. 60-61 (1968). See also State v. Kaluna, 55 Haw. 361, 368-369, 520 P.2d 51, 58-59 (1974). But, of course, a State may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them. [Footnote 4] See Smayda v. United States, 352 F.2d 251, 253 (CA9 1965), cert. denied, 382 U.S. 981 (1966); Aftanase v. Economy Baler Co., 343 F.2d 187, 193 (CA8 1965).Although Oregon has a constitutional provision against compulsory self-incrimination in any criminal prosecution, Ore.Const., Art. 1, § 12, the present case was decided by the Oregon courts on Fifth and Fourteenth Amendment grounds. The decision did not rest on the Oregon Constitution or state law; neither was cited. The fact that the Oregon courts found it necessary to attempt Page 420 U. S. 720 to distinguish Harris v. New York, supra, reveals the federal basis.2. Hass suggests that a decision by a State's highest court in favor of a criminal defendant is not reviewable here. This, we assume, is a standing argument advanced on the theory that the State is not aggrieved by the Oregon judgment. Surely, a holding that, for constitutional reasons, the prosecution may not utilize otherwise relevant evidence makes the State an aggrieved party for purposes of review. This should be self-evident, but cases such as California v. Green, 399 U. S. 149 (1970), manifest its validity.3. State v. Brewton, 247 Ore. 241, 422 P.2d 581 (1967), by which the Oregon Court of Appeals in the present case felt itself bound, merits comment. There, the Oregon court, again by a 4-to-3 vote, held that statements, elicited from a murder defendant, that were inadmissible in the State's case in chief because they had not been preceded by adequate warnings, could not be used to impeach the defendant's own testimony even though the statements had been voluntarily made.In the present case, the Supreme Court of Oregon stated that it took review "for the purpose of deciding whether we wished to overrule Brewton," 267 Ore., at 492, 517 P.2d at 673. It found it "not necessary to make that determination," because, in the majority view, Brewton and Harris were distinguishable. Ibid. As set forth below, we are unable so to distinguish the two cases. Furthermore, Brewton is pre-Harris.IIIThis takes us to the real issue, namely, that of the bearing of Harris v. New York upon this case.In Harris, the defendant was charged by the State in a two-count indictment with twice selling heroin to an Page 420 U. S. 721 undercover police officer. The prosecution introduced evidence of the two sales. Harris took the stand in his own defense. He denied the first sale and described the second as one of baking powder utilized as part of a scheme to defraud the purchaser. On cross-examination, Harris was asked whether he had made specified statements to the police immediately following his arrest; the statements partially contradicted Harris' testimony. In response, Harris testified that he could not remember the questions or answers recited by the prosecutor. The trial court instructed the jury that the statements attributed to Harris could be used only in passing on his credibility, and not as evidence of guilt. The jury returned a verdict of guilty on the second count of the indictment.The prosecution had not sought to use the statements in its case in chief, for it conceded that they were inadmissible under Miranda because Harris had not been advised of his right to appointed counsel. THE CHIEF JUSTICE, speaking for the Court, observed, 401 U.S. at 401 U. S. 224:"It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards."Relying on Walder v. United States, 347 U. S. 62 (1954), a Fourth Amendment case, we ruled that there was no "difference in principle" between Walder and Harris; that the "impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner's credibility"; that the "benefits of this process should not be lost"; that,"[a]ssuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief,"401 U.S. at 401 U. S. 225, and that the"shield provided by Miranda cannot be perverted into a license to use perjury Page 420 U. S. 722 by way of a defense, free from the risk of confrontation with prior inconsistent utterances."Id. at 401 U. S. 226. It was held, accordingly, that Harris' credibility was appropriately impeached by the use of his earlier conflicting statements.We see no valid distinction to be made in the application of the principles of Harris to that case and to Hass' case. Hass' statements were made after the defendant knew Osterholme's opposing testimony had been ruled inadmissible for the prosecution's case in chief.As in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the prosecution's case in chief is barred for all purposes, always provided that "the trustworthiness of the evidence satisfies legal standards." 401 U.S. at 401 U. S. 224. Again, the impeaching material would provide valuable aid to the jury in assessing the defendant's credibility; again, "the benefits of this process should not be lost," id. at 401 U. S. 225; and, again, making the deterrent effect assumption, there is sufficient deterrence when the evidence in question is made unavailable to the prosecution in its case in chief. If all this sufficed for the result in Harris, it supports and demands a like result in Hass' case. Here, too, the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.We are, after all, always engaged in a search for truth in a criminal case so long as the search is surrounded with the safeguards provided by our Constitution. There is no evidence or suggestion that Hass' statements to Officer Osterholme on the way to Moyina Heights were involuntary or coerced. He properly sensed, to be sure, that he was in "trouble"; but the pressure on him was Page 420 U. S. 723 no greater than that, on any person in like custody or under inquiry by any investigating officer.The only possible factual distinction between Harris and this case lies in the fact that the Miranda warnings given Hass were proper, whereas those given Harris were defective. The deterrence of the exclusionary rule, of course, lies in the necessity to give the warnings. That these warnings, in a given case, may prove to be incomplete, and therefore defective, as in Harris, does not mean that they have not served as a deterrent to the officer who is not then aware of their defect; and to the officer who is aware of the defect, the full deterrence remains. The effect of inadmissibility in the Harris case and in this case is the same: inadmissibility would pervert the constitutional right into a right to falsify free from the embarrassment of impeachment evidence from the defendant's own mouth.One might concede that, when proper Miranda warnings have been given, and the officer then continues his interrogation after the suspect asks for an attorney, the officer may be said to have little to lose, and perhaps something to gain, by way of possibly uncovering impeachment material. This speculative possibility, however, is even greater where the warnings are defective and the defect is not known to the officer. In any event, the balance was struck in Harris, and we are not disposed to change it now. If, in a given case, the officer's conduct amounts to abuse, that case, like those involving coercion or duress, may be taken care of when it arises measured by the traditional standards for evaluating voluntariness and trustworthiness.We therefore hold that the Oregon appellate courts were in error when they ruled that Officer Osterholme's testimony on rebuttal was inadmissible on Fifth and Page 420 U. S. 724 Fourteenth Amendment grounds for purposes of Hass' impeachment. The judgment of the Supreme Court of Oregon is reversed.It is so ordered

U.S. Supreme CourtOregon v. Hass, 420 U.S. 714 (1975)Oregon v. HassNo. 73-1452Argued January 21, 1975Decided March 19, 1975420 U.S. 714SyllabusWhen a suspect in police custody has been given and accepts the full warnings prescribed by Miranda v. Arizona, 384 U. S. 436, and later states that he would like to telephone a lawyer, but is told he cannot do so until reaching the station, and he then provides inculpatory information, such information is admissible in evidence at the suspect's trial solely for impeachment purposes after he has taken the stand and testified to the contrary knowing such information had been ruled inadmissible for the prosecution's case in chief. Harris v. New York, 401 U. S. 222. Pp. 420 U. S. 720-724.267 Ore. 489, 517 P.2d 671, reversed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 420 U. S. 724. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 420 U. S. 726. DOUGLAS, J., took no part in the consideration or decision of the case.

1956_27

MR. JUSTICE CLARK delivered the opinion of the Court.These two consolidated cases present a question of the power of the Courts of Appeals to issue writs of mandamus to compel a District Judge to vacate his orders entered under Rule 53(b) of the Federal Rules of Civil Procedure referring antitrust cases for trial before a master. The petitioner, a United States District Judge sitting in the Northern District of Illinois, contends that the Courts of Appeals have no such power, and that, even if they did, these cases were not appropriate ones for its exercise. The Page 352 U. S. 251 Court of Appeals for the Seventh Circuit has decided unanimously that it has such power and, by a divided court, that the circumstances surrounding the references by the petitioner required it to issue the mandamus about which he complains. 226 F.2d 703. The importance of the question in the administration of the Federal Rules of Civil Procedure, together with the uncertainty existing on the issue among the Courts of Appeals, led to our grant of a writ of certiorari. 350 U.S. 964. We conclude that the Court of Appeals properly issued the writs of mandamus.History of the Litigation. -- These petitions for mandamus, filed in the Court of Appeals, arose from two antitrust actions instituted in the District Court in 1950. [Footnote 1] Rohlfing [Footnote 2] involves 87 plaintiffs, all operators of independent retail shoe repair shops. The claim of these plaintiffs against the six named defendants -- manufacturers, wholesalers, and retail mail order houses and chain operators -- is identical. The claim asserted in the complaint is a conspiracy between the defendants "to monopolize and to attempt to monopolize" and fix the price of shoe repair supplies sold in interstate commerce in the Chicago area, in violation of the Sherman Act. The allegations also include a price discrimination charge under the Robinson-Patman Act. Shaffer [Footnote 3] involves six plaintiffs, all wholesalers of shoe repair supplies, and six defendants, including manufacturers and wholesalers of such supplies Page 352 U. S. 252 and a retail shoe shop chain operator. The allegations here also include charges of monopoly and price fixing under the Sherman Act and price discrimination in violation of the Robinson-Patman Act. Both complaints pray for injunctive relief, treble damages, and an accounting with respect to the discriminatory price differentials charged.The record indicates that the cases had been burdensome to the petitioner. In Rohlfing alone, 27 pages of the record are devoted to docket entries reflecting that petitioner had conducted many hearings on preliminary pleas and motions. The original complaint had been twice amended as a result of orders of the court in regard to misjoinders and severance; 14 defendants had been dismissed with prejudice; summary judgment hearings had resulted in a refusal to enter a judgment for some of the defendants on the pleadings; over 50 depositions had been taken; and hearings to compel testimony and require the production and inspection of records were held. It appears that several of the hearings were extended, and included not only oral argument but submission of briefs, and resulted in the filing of opinions and memoranda by the petitioner. It is reasonable to conclude that much time would have been saved at the trial had petitioner heard the case because of his familiarity with the litigation.The References to the Master. -- The references to the master were made under the authority of Rule 53(b) of the Federal Rules of Civil Procedure. [Footnote 4] The cases were called on February 23, 1955, on a motion to reset them Page 352 U. S. 253 for trial. Rohlfing was "No. 1 below the black line" on the trial list, which gave it a preferred setting. All parties were anxious for an early trial, but plaintiffs wished an adjournment until May. The petitioner announced that"it has taken a long time to get this case at issue. I remember hearing more motions, I think, in this case than any case I have ever sat on in this court."The plaintiffs estimated that the trial would take six weeks, whereupon petitioner stated he did not know when he could try the case "if it is going to take this long." He asked if the parties could agree "to have a Master hear" it. The parties ignored this query, and, at a conference in chambers the next day, petitioner entered the orders of reference sua sponte. [Footnote 5] The orders declared that the court was "confronted with an extremely congested calendar," and that "exception [sic] conditions exist for this reason" requiring the references. The cases were referred to the master "to take evidence and to report the same to this Court, together with his findings of fact and conclusions of law." It was further ordered in each case that "the Master shall commence the trial of this cause" on a certain date and continue with diligence, and that the parties supply security for costs. Page 352 U. S. 254 While the parties had deposited some $8,000 costs, the record discloses that all parties objected to the references and filed motions to vacate them. Upon petitioner's refusal to vacate the references, these mandamus actions were filed in the Court of Appeals seeking the issuance of writs ordering petitioner to do so. These applications were grounded on 28 U.S.C. § 1651(a), the All Writs Act. [Footnote 6] In his answer to the show cause orders issued by the Court of Appeals, petitioner amplified the reasons for the references, stating "that the cases were very complicated and complex, that they would take considerable time to try," and that his "calendar was congested." Declaring that the references amounted to "a refusal on his [petitioner's] part, as a judge, to try the causes in due course," the Court of Appeals concluded that, "in view of the extraordinary nature of these causes," the references must be vacated "if we find that the orders were beyond the court's power under the pertinent rule." 226 F.2d 705, 706. And, it being so found, the writs issued under the authority of the All Writs Act. It is not disputed that the same principles and considerations as to the propriety of the issuance of the writs apply equally to the two cases.The Power of the Courts of Appeals. -- Petitioner contends that the power of the Courts of Appeals does not extend to the issuance of writs of mandamus to review interlocutory orders except in those cases where the review of the case on appeal after final judgment would be frustrated. Asserting that the orders of reference were in exercise of his jurisdiction under Rule 53(b), petitioner urges that such action can be reviewed only on appeal, and not by writ of mandamus, since, by congressional Page 352 U. S. 255 enactment, appellate review of a District Court's orders may be had only after a final judgment. The question of naked power has long been settled by this Court. As late as Roche v. Evaporated Milk Association, 319 U. S. 21, 319 U. S. 25 (1943), Mr. Chief Justice Stone reviewed the decisions and, in considering the power of Courts of Appeals to issue writs of mandamus, the Court held that "the common law writs, like equitable remedies, may be granted or withheld in the sound discretion of the court." The recodification of the All Writs Act in 1948, which consolidated old §§ 342 and 377 into the present § 1651(a), did not affect the power of the Courts of Appeals to issue writs of mandamus in aid of jurisdiction. See Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, 346 U. S. 382-383 (1953). Since the Court of Appeals could at some stage of the antitrust proceedings entertain appeals in these cases, it has power in proper circumstances, as here, to issue writs of mandamus reaching them. Roche, supra, at 319 U. S. 25, and cases there cited. This is not to say that the conclusion we reach on the facts of this case is intended, or can be used, to authorize the indiscriminate use of prerogative writs as a means of reviewing interlocutory orders. We pass on, then, to the only real question involved, i.e., whether the exercise of the power by the Court of Appeals was proper in the cases now before us.The Discretionary Use of the Writs. -- It appears from the docket entries to which we heretofore referred that the petitioner was well informed as to the nature of the antitrust litigation, the pleadings of the parties, and the gist of the plaintiffs' claims. He was well aware of the theory of the defense and much of the proof, which necessarily was outlined in the various requests for discovery, admissions, interrogatories, and depositions. He heard arguments on motions to dismiss, to compel testimony on depositions, and for summary judgment. In fact, petitioner's Page 352 U. S. 256 knowledge of the cases at the time of the references, together with his long experience in the antitrust field, points to the conclusion that he could dispose of the litigation with greater dispatch and less effort than anyone else. Nevertheless, he referred both suits to a master on the general issue. Furthermore, neither the existence of the alleged conspiracy nor the question of liability vel non had been determined in either case. These issues, as well as the damages, if any, and the question concerning the issuance of an injunction, were likewise included in the references. Under all of the circumstances, we believe the Court of Appeals was justified in finding the orders of reference were an abuse of the petitioner's power under Rule 53(b). They amounted to little less than an abdication of the judicial function, depriving the parties of a trial before the court on the basic issues involved in the litigation.The use of masters is "to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause," Ex parte Peterson, 253 U. S. 300, 253 U. S. 312 (1920), and not to displace the court. The exceptional circumstances here warrant the use of the extraordinary remedy of mandamus. See Maryland v. Soper, 270 U. S. 9, 270 U. S. 30 (1926). As this Court pointed out in Los Angeles Brush Mfg. Corp. v. James, 272 U. S. 701, 272 U. S. 706 (1927): " . . . [W]here the subject concerns the enforcement of the . . . [r]ules which, by law, it is the duty of this court to formulate and put in force," mandamus should issue to prevent such action thereunder so palpably improper as to place it beyond the scope of the rule invoked. As was said there at page 272 U. S. 707, were the Court " . . . to find that the rules have been practically nullified by a District Judge . . . it would not hesitate to restrain [him]. . . ." The Los Angeles Brush Mfg. Corp. case was cited as authority in 1940 for a per curiam opinion in McCullough v. Cosgrave, 309 U.S. 634, in which the Court summarily Page 352 U. S. 257 ordered vacated the reference of two patent cases to a master. The cases arose from the same District Court in which the Los Angeles Brush Mfg. Corp. case originated, and the grounds for the references largely followed that case. It is to be noted that the grounds there are much more inclusive than those set out here, alleging all of those claimed by the petitioner and, in addition, the prolonged illness of the regular judge and the fact that no other judge was available to try the cases. It appears to us a fortiori that these cases were improperly referred to a master.It is claimed that recent opinions of this Court are to the contrary. Petitioner cites Bankers Life & Casualty Co. v. Holland, 346 U. S. 379 (1953), and Parr v. United States, 351 U. S. 513 (1956). The former case did not concern rules promulgated by this Court but rather an Act of Congress, the venue statute. Furthermore, there we pointed out that the " . . . All Writs Act is meant to be used only in the exceptional case where there is clear abuse of discretion or usurpation of judicial power.' . . ." 346 U.S. at 346 U. S. 383. Certainly, as the Court of Appeals found here, there was a clear abuse of discretion. In the Parr case, the District Court had not exceeded or refused to exercise its functions. It dismissed an indictment because the Government had elected to prosecute Parr in another district under a new indictment. The effect of the holding was merely that the dismissal of the first indictment was not an abuse of the discretion vested in the trial judge.It is also contended that the Seventh Circuit has erroneously construed the All Writs Act as "conferring on it a roving commission' to supervise interlocutory orders of the District Courts in advance of final decision." Our examination of its opinions in this regard leads us to the conclusion that the Court of Appeals has exercised commendable self-restraint. It is true that mandamus should Page 352 U. S. 258 be resorted to only in extreme cases, since it places trial judges in the anomalous position of being litigants without counsel other than uncompensated volunteers. However, there is an end of patience, and it clearly appears that the Court of Appeals has for years admonished the trial judges of the Seventh Circuit that the practice of making references "does not commend itself," and " . . . should seldom be made, and, if at all, only when unusual circumstances exist." In re Irving-Austin Building Corp., 100 F.2d 574, 577 (1938). Again, in 1942, it pointed out that the words "exception" and "exceptional," as used in the reference rule, are not elastic terms, with the trial court the sole judge of their elasticity. "Litigants are entitled to a trial by the court, in every suit, save where exceptional circumstances are shown." Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 815. Still, the Court of Appeals did not disturb the reference practice by reversal or mandamus until this case was decided in October, 1955. Again, Chief Judge Duffy, in Krinsley v. United Artists Corp., 235 F.2d 253, 257 (1956), in which there was an affirmance of a case involving a reference, called attention to the fact that the practice of referring cases to masters was " . . . all too common in the Northern District of Illinois. . . ." The record does not show to what extent references are made by the full bench of the District Court in the Northern District; however, it does reveal that petitioner has referred 11 cases to masters in the past 6 years. But even "a little cloud may bring a flood's downpour" if we approve the practice here indulged, particularly in the face of presently congested dockets, increased filings, and more extended trials. This is not to say that we are neither aware of nor fully appreciative of the unfortunate congestion of the court calendar in many of our District Courts. The use of procedural devices in the heavily congested districts has proven to be most helpful in reducing docket congestion. Illustrative Page 352 U. S. 259 of such techniques are provision for an assignment commissioner to handle the assignment of all cases; the assignment of judges to handle only motions, pleas, and pretrial proceedings; and separate calendars for civil and criminal trials in cases that have reached issue. We enumerate these merely as an example of the progress made in judicial administration through the use of enlightened procedural techniques. It goes without saying that they can be used effectively only where adaptable to the specific problems of a district. But, be that as it may, congestion in itself is not such an exceptional circumstance as to warrant a reference to a master. If such were the test, present congestion would make references the rule, rather than the exception. Petitioner realizes this, for, in addition to calendar congestion, he alleges that the cases referred had unusual complexity of issues of both fact and law. But most litigation in the antitrust field is complex. It does not follow that antitrust litigants are not entitled to a trial before a court. On the contrary, we believe that this is an impelling reason for trial before a regular, experienced trial judge, rather than before a temporary substitute appointed on an ad hoc basis and ordinarily not experienced in judicial work. Nor does petitioner's claim of the great length of time these trials will require offer exceptional grounds. The final ground asserted by petitioner was with reference to the voluminous accounting which would be necessary in the event the plaintiffs prevailed. We agree that the detailed accounting required in order to determine the damages suffered by each plaintiff might be referred to a master after the court has determined the over-all liability of defendants, provided the circumstances indicate that the use of the court's time is not warranted in receiving the proof and making the tabulation.We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper Page 352 U. S. 260 judicial administration in the federal system. The All Writs Act confers on the Courts of Appeals the discretionary power to issue writs of mandamus in the exceptional circumstances existing here. Its judgment is thereforeAffirmed

U.S. Supreme CourtLa Buy v. Howes Leather Co., Inc., 352 U.S. 249 (1957)La Buy v. Howes Leather Co., Inc.No. 27Argued October 17-18, 1956Decided January 14, 1957352 U.S. 249SyllabusPetitioner is a Federal District Judge who had pending before him two civil antitrust actions brought by private parties. Over a period of years, he had ruled upon many preliminary pleas and motions, requiring, in several instances, the hearing of oral arguments, the consideration of briefs, and the writing of opinions and memoranda. Confronted with motions to set the cases for trial and a statement that it would take six weeks to try one of them, he sua sponte entered orders under Rule 53(b) of the Federal Rules of Civil Procedure referring both cases to a master for hearings and the preparation of findings of fact and conclusions of law. As exceptional conditions requiring the references, he cited "an extremely congested calendar," the complexity of the cases, and the fact that they would take considerable time to try. The Court of Appeals issued writs of mandamus requiring petitioner to vacate his orders of reference.Held: the Court of Appeals properly issued the writs of mandamus. Pp. 352 U. S. 250-260.1. Since the Court of Appeals could at some stage of the antitrust proceedings entertain appeals in these cases, it had discretionary power under the All Writs Act, 28 U.S.C. § 1651(a), in proper circumstances to issue writs of mandamus reaching them. Pp. 352 U. S. 254-255.2. In the exceptional circumstance of these cases, the Court of Appeals properly exercised its discretionary power to issue the writs of mandamus, since it was justified in finding that the orders of reference were an abuse of petitioner's power under Rule 53(b), amounting to little less than an abdication of the judicial function and depriving the parties of trials before the court on the basic issues involved in the litigation. Bankers Life & Casualty Co. v. Holland, 346 U. S. 379, and Parr v. United States, 351 U. S. 513, distinguished. Pp. 352 U. S. 255-260.(a) The use of masters is to aid judges in the performance of specific duties as they arise in the progress of a cause -- not to displace the court. P. 352 U. S. 256. Page 352 U. S. 250(b) Congestion of the calendar in itself is not such an exceptional circumstance as to warrant reference to a master. P. 352 U. S. 259.(c) That the cases referred had unusually complex issues of fact and law is not justification for reference to a master, but rather an impelling reason for trial before a regular experienced judge. P. 352 U. S. 259.(d) Nor does petitioner's claim of the great length of time these trials will require offer exceptional ground for reference to a master. P. 352 U. S. 259.(e) The detailed accounting required in order to determine the damages suffered by each plaintiff might be referred to a master after the court has determined the over-all liability of defendants, provided the circumstances indicate that the use of the court's time is not warranted in receiving the proof and making the tabulation. P. 352 U. S. 259.3. Supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system, and the All Writs Act confers on the Courts of Appeals the discretionary power to issue writs of mandamus in the exceptional circumstances existing here. Pp. 352 U. S. 259-260.226 F.2d 703 affirmed.

1982_81-2169

JUSTICE MARSHALL delivered the opinion of the Court.The trial court accepted respondent John Franklin Prosise's plea of guilty to one count of manufacturing a controlled substance -- phencyclidine. At the hearing at which respondent pleaded guilty, a police officer gave a brief account of the search of respondent's apartment that led to the discovery of material typically used in manufacturing this substance. Thereafter, Prosise brought a damages action under 42 U.S.C. § 1983 in Federal District Court against petitioner Gilbert A. Haring and the other officers who participated in the search of his apartment. The question presented by this case is whether respondent's § 1983 claim is barred by his prior guilty plea.IOn April 27, 1978, pursuant to a plea agreement, Prosise pleaded guilty in the Circuit Court for Arlington County, Va., to one count of manufacturing phencyclidine. The Commonwealth then called one witness, Detective Henry Allen of the Arlington County Police Department. Allen testified that, on September 7, 1977, he responded to a radio call directing him to an Arlington apartment which turned out to be leased to Prosise. By the time he arrived, two uniformed officers had placed Prosise under arrest for the possession of a controlled substance. After entering the apartment, Allen noticed various chemicals in the apartment, as well as a quantity of what he believed to be phencyclidine. A warrant was later obtained for a search of the apartment. Allen and Detective Petti then conducted a search which led to the seizure of devices and chemicals used to manufacture phencyclidine, Page 462 U. S. 309 receipts for such chemicals, a paper containing a formula for making phencyclidine, and two buckets containing traces of the substance.At the conclusion of Allen's testimony, the judge accepted Prosise's guilty plea, finding that it had been entered voluntarily and intelligently and that it had a sufficient basis in fact. On June 23, 1978, the court denied Prosise's motion to withdraw his plea and sentenced him to 25 years' imprisonment. [Footnote 1]On January 23, 1979, while under confinement in the Arlington Detention Center, Prosise filed a pro se action under 42 U.S.C. § 1983 against Lt. Gilbert A. Haring and various other members of the Arlington County Police Department who had participated in the search of his apartment. His complaint alleged that the officers had unlawfully searched his apartment prior to obtaining a search warrant, and that after obtaining the warrant, the officers conducted a search that exceeded the scope of the warrant.The District Court granted summary judgment for defendants on the ground that Prosise's guilty plea to the charge of manufacturing phencyclidine barred his § 1983 claim. The court reasoned that Prosise's failure to assert his Fourth Amendment claim in state court constituted a waiver of that right, precluding its assertion in any subsequent proceeding. It relied primarily on this Court's decision in Tollett v. Henderson, 411 U. S. 258 (1973), which held that, when a state criminal defendant has pleaded guilty to the offense for which he was indicted by the grand jury, he cannot in a later federal habeas corpus proceeding raise a claim of discrimination in the selection of the grand jury. The District Court stated that, under the reasoning in Tollett, a guilty plea would similarly foreclose federal habeas inquiry into the constitutionality Page 462 U. S. 310 of a search that turned up evidence of the crime charged. The court concluded:"If a defendant who pleads guilty is foreclosed from obtaining his freedom because of an illegal search and seizure, he should not be allowed to secure damages in a § 1983 suit, and thereby litigate the antecedent constitutional question relating to the search that could not otherwise be heard because of Tollett."The District Court also appears to have held that Prosise's plea of guilty constituted an implied admission that the search of his apartment was legal. The court stated that, even though the constitutionality of the police conduct was not litigated in the state criminal proceedings, Prosise's"plea of guilty estops him from asserting a fourth amendment claim in a § 1983 suit [because his] plea of guilty necessarily implied that the search giving rise to the incriminating evidence was lawful."The Court of Appeals reversed in pertinent part and remanded for further proceedings. 667 F.2d 1133 (CA4 1981). It held that the principles governing guilty pleas announced in Tollett are applicable only to subsequent habeas corpus proceedings, and that the preclusive effect, if any, of a guilty plea upon subsequent proceedings under § 1983 "is to be determined on the basis of other principles, specifically, of collateral estoppel and the full faith and credit statute, 28 U.S.C. § 1738." Id. at 1136-1137. The Court of Appeals proceeded to examine the law of Virginia "to determine whether, and to what extent, that state would give preclusive effect to the criminal judgment here in issue." Id. at 1138. The court found that, under Virginia law, "criminal judgments, whether by guilty plea or adjudicated guilt, have no preclusive effect in subsequent civil litigation." Id. at 1139. Because the courts of Virginia would not give preclusive effect to the criminal judgment, it was not entitled to any greater effect under § 1738. Page 462 U. S. 311The Court of Appeals concluded that, in any event, a guilty plea should not "have preclusive effect as to potential, but not actually litigated, issues respecting the exclusion of evidence on fourth amendment grounds." Id. at 1140-1141. The court cited the general view of courts and commentators that,"among the most critical guarantees of fairness in applying collateral estoppel is the guarantee that the party sought to be estopped had not only a full and fair opportunity but an adequate incentive to litigate 'to the hilt' the issues in question."Id. at 1141. Unlike a criminal defendant who has been convicted after a full trial on the criminal charges, a defendant who pleads guilty has not necessarily had an adequate incentive to litigate "with respect to potential but unlitigated issues related to the exclusion of evidence on fourth amendment grounds." Ibid.After the Court of Appeals denied rehearing, id. at 1143, petitioners' suggestion for rehearing en banc was denied by an equally divided court. Ibid. We granted certiorari, 459 U.S. 904 (1982), to resolve the uncertainty concerning the impact of a guilty plea upon a later suit under § 1983. [Footnote 2] We now affirm. Page 462 U. S. 312IIWe must decide whether Prosise's § 1983 action [Footnote 3] to redress an alleged Fourth Amendment violation [Footnote 4] is barred by the judgment of conviction entered in state court following his guilty plea. Petitioners' initial argument is that, under principles of collateral estoppel generally applied by the Virginia courts, Prosise's conviction would bar his subsequent civil challenge to police conduct, and that a federal court must therefore give the state judgment the same effect under 28 U.S.C. § 1738. [Footnote 5]In Allen v. McCurry, 449 U. S. 90 (1980), the Court considered whether the doctrine of collateral estoppel can be invoked against a § 1983 claimant to bar relitigation of a Fourth Amendment claim decided against him in a state criminal proceeding. The Court rejected the view that, because the § 1983 action provides the only route to federal district court for the plaintiff's constitutional claim, relitigation of the Fourth Amendment question in federal court must be permitted. No support was found in the Constitution or in § 1983 Page 462 U. S. 313 for the"principle that every person asserting a federal right is entitled to one unencumbered opportunity to litigate that right in a federal district court, regardless of"whether that claim has already been decided against him after a full and fair proceeding in state court. Id. at 449 U. S. 103. The Court concluded that the doctrine of collateral estoppel therefore applies to § 1983 suits against police officers to recover for Fourth Amendment violations. The Court in Allen v. McCurry did not consider precisely how the doctrine of collateral estoppel should be applied to a Fourth Amendment question that was litigated and decided during the course of a state criminal trial. Id. at 449 U. S. 105, n. 25.We begin by reviewing the principles governing our determination whether a § 1983 claimant will be collaterally estopped from litigating an issue on the basis of a prior state court judgment. Title 28 U.S.C. § 1738 generally requires "federal courts to give preclusive effect to state court judgments whenever the courts of the State from which the judgments emerged would do so." Allen v. McCurry, 449 U.S. at 449 U. S. 96. [Footnote 6] In federal actions, including § 1983 actions, a state court judgment will not be given collateral estoppel effect, however, where"the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court."Id. at 449 U. S. 101. [Footnote 7] Moreover, additional exceptions to collateral estoppel Page 462 U. S. 314 may be warranted in § 1983 actions in light of the "understanding of § 1983" that "the federal courts could step in where the state courts were unable or unwilling to protect federal rights." Ibid. Cf. id. at 449 U. S. 95, n. 7; Board of Regents v. Tomanio,446 U.S. 478, 446 U. S. 485-486 (1980) (42 U.S.C.§ 1988 authorizes federal courts, in an action under § 1983, to disregard an otherwise applicable state rule of law if the state law is inconsistent with the federal policy underlying § 1983).The threshold question is whether, under the rules of collateral estoppel applied by the Virginia courts, the judgment of conviction based upon Prosise's guilty plea would foreclose him in a later civil action from challenging the legality of a search which had produced inculpatory evidence. [Footnote 8] Because there is no Virginia decision precisely on point, we must look for guidance to Virginia decisions concerning collateral estoppel generally. While it is often appropriate to look to the law as it is generally applied in other jurisdictions for additional guidance, we need not do so in this case, because the state law question is not a particularly difficult one.The courts of Virginia have long recognized that a valid final "judgment rendered upon one cause of action'" may bar a party to that action from later litigating "`matters arising in a Page 462 U. S. 315 suit upon a different cause of action.'" Eason v. Eason, 204 Va. 347, 350, 131 S.E.2d 280, 282 (1963), quoting Kemp v. Miller, 166 Va. 661, 674-675, 186 S.E. 99, 104 (1936). [Footnote 9] However,"the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered."Ibid. Unless an issue was actually litigated and determined in the former judicial proceeding, Virginia law will not treat it as final. See, e.g., Luke Construction Co. v. Simpkins, 223 Va. 387, 291 S.E.2d 204 (1982); Eason v. Eason, supra. Compare Brown v. Felsen, 442 U. S. 127, 442 U. S. 139, n. 10 (1979). Furthermore, collateral estoppel precludes the litigation of only those issues necessary to support the judgment entered in the first action. As the Virginia Supreme Court stated in Petrus v. Robbins, 196 Va. 322, 330, 83 S.E.2d 408, 412 (1954),"[t]o render the judgment conclusive, it must appear by the record of the prior suit that the particular matter sought to be concluded was necessarily tried or determined, -- that is, that the verdict could not have been rendered without deciding that matter."Cf. Block v. Commissioners, 99 U. S. 686, 99 U. S. 693 (1879); Segal v. American Tel. & Tel. Co., 606 F.2d 842, 845, n. 2 (CA9 1979). Page 462 U. S. 316It is clear from the foregoing that the doctrine of collateral estoppel would not be invoked in this case by the Virginia courts for at least three reasons. First, the legality of the search of Prosise's apartment was not actually litigated in the criminal proceedings. Indeed, no issue was "actually litigated" in the state proceeding, since Prosise declined to contest his guilt in any way. Second, the criminal proceedings did not actually decide against Prosise any issue on which he must prevail in order to establish his § 1983 claim. The only question raised by the criminal indictment and determined by Prosise's guilty plea in Arlington Circuit Court was whether Prosise unlawfully engaged in the manufacture of a controlled substance. This question is simply irrelevant to the legality of the search under the Fourth Amendment or to Prosise's right to compensation from state officials under § 1983.Finally, none of the issues in the § 1983 action could have been "necessarily" determined in the criminal proceeding. Specifically, a determination that the county police officers engaged in no illegal police conduct would not have been essential to the trial court's acceptance of Prosise's guilty plea. Indeed, a determination that the search of Prosise's apartment was illegal would have been entirely irrelevant in the context of the guilty plea proceeding. Neither state nor federal law requires that a guilty plea in state court be supported by legally admissible evidence where the accused's valid waiver of his right to stand trial is accompanied by a confession of guilt. See Kibert v. Commonwealth, 216 Va. 660, 222 S.E.2d 790 (1976); cf. North Carolina v. Alford, 400 U. S. 25, 400 U. S. 37-38, and n. 10 (1970); Willett v. Georgia, 608 F.2d 538, 540 (CA5 1979). [Footnote 10] Page 462 U. S. 317We therefore conclude that Virginia law would not bar Prosise from litigating the validity of the search conducted by petitioners. Accordingly, the issue is not foreclosed under 28 U.S.C. § 1738.IIIWe turn next to petitioners' contention that, even if Prosise's claim is not precluded under § 1738, this Court should create a special rule of preclusion which nevertheless would bar litigation of his § 1983 claim. As a general matter, even when issues have been raised, argued, and decided in a prior proceeding, and are therefore preclusive under state Page 462 U. S. 318 law,"[r]edetermination of [the] issues [may nevertheless be] warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation."Montana v. United States, 440 U. S. 147, 440 U. S. 164, n. 11 (1979). Yet petitioners maintain that Prosise should be barred from litigating an issue that was never raised, argued, or decided, simply because he had an opportunity to raise the issue in a previous proceeding. Petitioners reason that, by pleading guilty, Prosise should be deemed to have either admitted the legality of the search or waived any Fourth Amendment claim, thereby precluding him from asserting that claim in any subsequent suit. According to petitioners, such a federal rule of preclusion imposed in addition to the requirements of § 1738 is necessary to further important interests in judicial administration.There is no justification for creating such an anomalous rule. To begin with, Prosise's guilty plea in no way constituted an admission that the search of his apartment was proper under the Fourth Amendment. During the course of proceedings in Arlington County Circuit Court, Prosise made no concession with respect to the Fourth Amendment claim.Petitioners contend that we should infer such an admission because Prosise had a substantial incentive to elect to go to trial if he considered his Fourth Amendment claim meritorious, since the State would most likely have been unable to obtain a conviction in the absence of the evidence seized from Prosise's apartment. In our view, however, it is impermissible for a court to assume that a plea of guilty is based on a defendant's determination that he would be unable to prevail on a motion to suppress evidence. As we recognized in Brady v. United States, 397 U. S. 742, 397 U. S. 750 (1970), and reaffirmed in Tollett v. Henderson, 411 U.S. at 411 U. S. 263, a defendant's decision to plead guilty may have any number of other motivations:"For some people, their breach of a State's law is alone sufficient reason for surrendering themselves and accepting Page 462 U. S. 319 punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family."Similarly, a prospect of a favorable plea agreement or"the expectation or hope of a lesser sentence . . . are considerations that might well suggest the advisability of a guilty plea without elaborate consideration of whether [a Fourth Amendment challenge to the introduction of inculpatory evidence] might be factually supported."Tollett v. Henderson, supra, at 411 U. S. 268. Therefore, Prosise's decision not to exercise his right to stand trial cannot be regarded as a concession of any kind that a Fourth Amendment evidentiary challenge would fail. Cf. Brown v. Felsen, 442 U.S. at 442 U. S. 137.We similarly reject the view, argued by petitioners and accepted by the District Court, that, by pleading guilty, Prosise "waived" any claim involving an antecedent Fourth Amendment violation. Petitioners rely on our prior decisions concerning the scope of federal habeas review of a criminal conviction based upon a guilty plea. See, e.g., Brady v. United States, supra; Tollett v. Henderson, supra; Blackledge v. Perry, 417 U. S. 21 (1974); Lefkowitz v. Newsome, 420 U. S. 283 (1975); Menna v. New York, 423 U. S. 61 (1975) (per curiam). In Brady, we reaffirmed that a guilty plea is not simply "an admission of past conduct," but a waiver of constitutional trial rights such as the right to call witnesses, to confront and cross-examine one's accusers, and to trial by jury. Brady, supra, at 397 U. S. 747-748, citing Boykin v. Alabama, 395 U. S. 238, 395 U. S. 242 (1969). For this reason, a guilty plea "not only must be voluntary, but must be [a] knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances and likely consequences." Brady, supra, at 397 U. S. 748. In Tollett v. Henderson, we concluded that an intelligent and voluntary plea of guilty generally bars habeas review of Page 462 U. S. 320 claims relating to the deprivation of constitutional rights that occurred before the defendant pleaded guilty. We held that, because"[t]he focus of federal habeas inquiry is the nature of [defense counsel's] advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity,"411 U.S. at 411 U. S. 266, Henderson was not entitled to a writ of habeas corpus on the basis of infirmities in the selection of the grand jury.Our decisions subsequent to Tollett make clear that a plea of guilty does not bar the review in habeas corpus proceedings of all claims involving constitutional violations antecedent to a plea of guilty. A defendant who pleads guilty may seek to set aside a conviction based on prior constitutional claims which challenge "the very power of the State to bring the defendant into court to answer the charge brought against him." Blackledge v. Perry, 417 U.S. at 417 U. S. 30. Because a challenge to an indictment on grounds of prosecutorial vindictiveness was such a claim, we concluded that a federal court may grant the writ of habeas corpus if it found merit in that constitutional challenge. Id. at 417 U. S. 30-31. We also applied this principle in Menna v. New York, supra, in holding that a double jeopardy claim may be raised in federal habeas proceedings following a state court conviction based on a plea of guilty. In Lefkowitz v. Newsome, supra, we held that Tollett does not apply to preclude litigation of a Fourth Amendment claim subsequent to a guilty plea when the State itself permits the claim to be raised on appeal.Under our past decisions, as the District Court correctly recognized, a guilty plea results in the defendant's loss of any meaningful opportunity he might otherwise have had to challenge the admissibility of evidence obtained in violation of the Fourth Amendment. It does not follow, however, that a guilty plea is a "waiver" of antecedent Fourth Amendment claims that may be given effect outside the confines of the criminal proceeding. The defendant's rights under the Fourth Amendment are not among the trial rights that he Page 462 U. S. 321 necessarily waives when he knowingly and voluntarily pleads guilty. Moreover, our decisions provide no support for petitioners' waiver theory, for the simple reason that these decisions did not rest on any principle of waiver. The cases relied on by petitioners all involved challenges to the validity of a state criminal conviction. Our decisions in Tollett and the cases that followed simply recognized that, when a defendant is convicted pursuant to his guilty, plea rather than a trial, the validity of that conviction cannot be affected by an alleged Fourth Amendment violation, because the conviction does not rest in any way on evidence that may have been improperly seized. State law treats a guilty plea as "a break in the chain of events [that] preceded it in the criminal process," Tollett v. Henderson, supra, at 411 U. S. 267. Therefore, the conclusion that a Fourth Amendment claim ordinarily may not be raised in a habeas proceeding following a plea of guilty does not rest on any notion of waiver, but rests on the simple fact that the claim is irrelevant to the constitutional validity of the conviction. As we explained in Menna v. New York, supra, at 423 U. S. 62-63, n. 2:"[W]aiver was not the basic ingredient of this line of cases. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established."(Emphasis in original; citation omitted.)It is therefore clear that Prosise did not waive his Fourth Amendment claims by pleading guilty in state court. The cases relied on by petitioners do not establish that a guilty plea is a waiver of Fourth Amendment claims. Moreover, the Page 462 U. S. 322 justifications for denying habeas review of Fourth Amendment claims following a guilty plea are inapplicable to an action under § 1983. While Prosise's Fourth Amendment claim is irrelevant to the constitutionality of his criminal conviction, and for that reason may not be the basis of a writ of habeas corpus, that claim is the crux of his § 1983 action which directly challenges the legality of police conduct. [Footnote 11]Adoption of petitioners' rule of preclusion would threaten important interests in preserving federal courts as an available forum for the vindication of constitutional rights. See England v. Medical Examiners, 375 U. S. 411, 375 U. S. 416-417 (1964); McClellan v. Carland, 217 U. S. 268, 217 U. S. 281 (1910); Willcox v. Consolidated Gas Co., 212 U. S. 19, 212 U. S. 40 (1909); Cohens v. Virginia, 6 Wheat. 264, 19 U. S. 404 (1821). Under petitioners' rule, whether or not a state judgment would be accorded preclusive effect by state courts, a federal court would be barred from entertaining a § 1983 claim. The rule would require "an otherwise unwilling party to try [Fourth Amendment] questions to the hilt" and prevail in state court "in order to [preserve] the mere possibility" of later bringing a § 1983 claim in federal court. Brown v. Felsen, 442 U.S. Page 462 U. S. 323 at 442 U. S. 135. Defendants who have pleaded guilty and who wish to bring a § 1983 claim would be forced to bring that claim in state court, if at all. Not only have petitioners failed to advance any compelling justification for a rule confining the litigation of constitutional claims to a state forum, but such a rule would be wholly contrary to one of the central concerns which motivated the enactment of § 1983, namely, the "grave congressional concern that the state courts had been deficient in protecting federal rights." Allen v. McCurry, 449 U.S. at 449 U. S. 98-99, citing Mitchum v. Foster, 407 U. S. 225, 407 U. S. 241-242 (1972), and Monroe v. Pape, 365 U. S. 167, 365 U. S. 180 (1961). See Patsy v. Florida Board of Regents, 457 U. S. 496 (1982).IVWe conclude that respondent's conviction in state court does not preclude him from now seeking to recover damages under 42 U.S.C. § 1983 for an alleged Fourth Amendment violation that was never considered in the state proceedings. Accordingly, the judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtHaring v. Prosise, 462 U.S. 306 (1983)Haring v. ProsiseNo. 81-2169Argued April 20, 1983Decided June 13, 1983462 U.S. 306SyllabusA Virginia trial court accepted respondent's plea of guilty to a charge of manufacturing a controlled substance. At the hearing at which respondent pleaded guilty, one of petitioner police officers gave a brief account of the search of respondent's apartment that led to the discovery of material typically used in manufacturing the controlled substance. Thereafter, respondent brought a damages action under 42 U.S.C.1983 in Federal District Court against petitioners, officers who participated in the search of his apartment, alleging that his Fourth Amendment rights had been violated. The District Court granted summary judgment for petitioners on the ground that respondent's guilty plea to the criminal charge barred his § 1983 claim. The Court of Appeals reversed in pertinent part and remanded.Held:1. The § 1983 action is not barred on the asserted ground that, under principles of collateral estoppel generally applied by the Virginia courts, respondent's conviction would bar his subsequent civil challenge to police conduct, and that a federal court must therefore give the state conviction the same effect under 28 U.S.C. § 1738, which generally requires federal courts to give preclusive effect to state court judgments if the courts of the State from which the judgments emerged would do so. Under collateral estoppel rules applied by Virginia courts, unless an issue was actually litigated and determined in the prior judicial proceeding, it will not be treated as final for purposes of the later action. Furthermore, under Virginia law, collateral estoppel precludes litigation of only those issues necessary to support the judgment entered in the first action. Thus, the collateral estoppel doctrine would not be invoked in this case by Virginia courts for at least three reasons. First, the legality of the search of respondent's apartment was not litigated in the criminal proceedings. Second, the criminal proceedings did not decide against respondent any issue on which he must prevail in order to establish his 1983 claim, the only question determined by the guilty plea being whether respondent unlawfully engaged in the manufacture of a controlled substance. This question is irrelevant to the legality of the search or to respondent's right to compensation from state officials under Page 462 U. S. 307 § 1983. Finally, none of the issues in the § 1983 action could have been "necessarily" determined in the criminal proceeding. A determination as to whether or not the search of respondent's apartment was legal would have been entirely irrelevant in the context of the guilty plea proceeding. Pp. 462 U. S. 312-317.2. Nor is litigation of respondent's § 1983 damages claim barred on the asserted ground that, because he had an opportunity to raise his Fourth Amendment claim in the criminal prosecution, by pleading guilty, he should be deemed to have either admitted the legality of the search or waived any Fourth Amendment claim. The guilty plea in no way constituted an admission that the search of his apartment was proper under the Fourth Amendment. It may not be assumed that a guilty plea is based on a defendant's determination that he would be unable to prevail on a motion to suppress evidence, since a decision to plead guilty may have any number of other motivations. Cf. Tollett v. Henderson, 411 U. S. 258, 411 U. S. 263, 411 U. S. 268. Similarly, although a guilty plea results in the defendant's loss of any meaningful opportunity he might otherwise have had in the criminal proceeding to challenge the admissibility of evidence obtained in violation of the Fourth Amendment, it does not follow that a guilty plea is a "waiver" of antecedent Fourth Amendment claims that may be given effect outside the confines of the criminal proceeding. And while a Fourth Amendment claim ordinarily may not be raised in a habeas corpus proceeding following a guilty plea, that conclusion does not rest on any notion of waiver, but rests on the fact that the claim is irrelevant to the constitutional validity of the conviction. Thus, the justifications for denying habeas review of Fourth Amendment claims following a guilty plea are inapplicable to an action under § 1983. Adoption of a rule of preclusion in this case would threaten important interests in preserving federal courts as an available forum for the vindication of constitutional rights. Pp. 462 U. S. 317-323.667 F.2d 1133, affirmed.MARSHALL, J., delivered the opinion for a unanimous Court. Page 462 U. S. 308

1955_21

Mr. Justice DOUGLAS delivered the opinion of the Court.This is a suit for condemnation of land instituted by the United States against respondent power company. A single question of valuation is presented. It is whether the just compensation which the United States must pay by force of the Fifth Amendment includes the value of the land as a site for hydroelectric power operations. The Fourth Circuit Court of Appeals held that it does. 215 F.2d 592. The Court of Appeals for the Fifth Circuit reached the same result in litigation involving other lands in the same hydroelectric project. United States v. Twin City Power Co., 221 F.2d 299. We granted the petition for certiorari in the former case because of the importance of the issue presented. 348 U.S. 910.The condemnation proceedings are part of the procedure for completion of the Clark Hill project on the Savannah River, a navigable stream in southeastern United States. The Clark Hill project is the first in a series of steps recommended by the Chief of Army Engineers for the improvement of the basin of that river. H.R.Doc. No. 657, 78th Cong., 2d Sess. That Report conceives of the Clark Hill project as serving multiple purposes -- hydroelectric, flood control, and navigation. It states that the Clark Hill project,"if suitably constructed and operated primarily for hydroelectric power development, would incidentally reduce downstream flood damages and improve low water flows for navigation."Id., Page 350 U. S. 224 p. 3. Congress approved this project as part of "the comprehensive development of the Savannah River Basin for flood control and other purposes." Section 10 of the Flood Control Act of 1944, 58 Stat. 887. And see United States ex rel. Chapman v. Federal Power Commission, 345 U. S. 153, 345 U. S. 170.The Court of Appeals concluded that the improvement of navigation was not the purpose of the taking, but that the Clark Hill project was designed to serve flood control and water power development. 215 F.2d at 597. It is not for courts, however, to substitute their judgments for congressional decisions on what is or is not necessary for the improvement or protection of navigation. See Arizona v. California, 283 U. S. 423, 283 U. S. 455-457. The role of the judiciary in reviewing the legislative judgment is a narrow one, in any case. See Berman v. Parker, 348 U. S. 26, 348 U. S. 32; United States ex rel. Tennessee Valley Authority v. Welch, 327 U. S. 546, 327 U. S. 552. The decision of Congress that this project will serve the interests of navigation involves engineering and policy considerations for Congress and Congress alone to evaluate. Courts should respect that decision until and unless it is shown "to involve an impossibility", as Mr. Justice Holmes expressed it in Old Dominion Land Co. v. United States, 269 U. S. 55, 269 U. S. 66. If the interests of navigation are served, it is constitutionally irrelevant that other purposes may also be advanced. United States v. Appalachian Electric Power Co., 311 U. S. 377, 311 U. S. 426; Oklahoma ex rel. Phillips v. Atkinson Co., 313 U. S. 508, 313 U. S. 525, 313 U. S. 533-534. As we said in the Appalachian Power Co. case,"Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control."311 U.S. at 311 U. S. 426.The interest of the United States in the flow of a navigable stream originates in the Commerce Clause. That Clause speaks in terms of power, not of property. But the power is a dominant one which can be asserted to the Page 350 U. S. 225 exclusion of any competing or conflicting one. The power is a privilege which we have called "a dominant servitude," see United States v. Commodore Park, Inc., 324 U. S. 386, 324 U. S. 391; Federal Power Commission v. Niagara Mohawk Power Corp., 347 U. S. 239, 347 U. S. 249, or "a superior navigation easement." United States v. Gerlach Live Stock Co., 339 U. S. 725, 339 U. S. 736. The legislative history and construction of particular enactments may lead to the conclusion that Congress exercised less than its constitutional power, fell short of appropriating the flow of the river to the public domain, and provided that private rights existing under state law should be compensable or otherwise recognized. Such were United States v. Gerlach Live Stock Co., supra, and Federal Power Commission v. Niagara Mohawk Power Corp., supra. We have a different situation here, one where the United States displaces all competing interests and appropriates the entire flow of the river for the declared public purpose.We can also put aside such cases as United States v. Kansas City Life Ins. Co., 339 U. S. 799, where assertion of the dominant servitude in the navigable river injured property beyond the bed of the stream. Here, we are dealing with the stream itself, for it is in the water power that respondents have been granted a compensable interest.It is argued, however, that the special water rights value should be awarded the owners of this land, since it lies not in the bed of the river nor below high water, but above and beyond the ordinary high water mark. An effort is made by this argument to establish that this private land is not burdened with the Government's servitude. The flaw in that reasoning is that the landowner here seeks a value in the flow of the stream, a value that inheres in the Government's servitude, and one that, under our decisions, the Government can grant or withhold as it chooses. It is no answer to say that payment is Page 350 U. S. 226 sought only for the location value of the fast lands. That special location value is due to the flow of the stream, and, if the United States were required to pay the judgments below, it would be compensating the landowner for the increment of value added to the fast lands if the flow of the stream were taken into account.That is illustrated by United States v. Chandler-Dunbar Co., 229 U. S. 53, the case that controls this one. In that case, a private company installed a power project in St. Mary's River under a permit from the Government, revocable at will. The permit was revoked, Congress appropriating the entire flow of the stream for navigation purposes. The Court unanimously held that the riparian owner had no compensable interest in the water power of which it had been deprived. Mr. Justice Lurton, speaking for the Court, said,"Ownership of a private stream wholly upon the lands of an individual is conceivable, but that the running water in a great navigable stream is capable of private ownership is inconceivable."Id. at 229 U. S. 69. The Court accordingly reversed a judgment that awarded the riparian owner what respondents have obtained in this case, viz.,"the present money value of the rapids and falls to the Chandler-Dunbar Company as riparian owners of the shore and appurtenant submerged land."Id. at 229 U. S. 74. The Court said,"The government had dominion over the water power of the rapids and falls, and cannot be required to pay any hypothetical additional value to a riparian owner who had no right to appropriate the current to his own commercial use. *"Id. at 229 U. S. 76. Some of the land owned by the private Page 350 U. S. 227 company was in the bed of the stream, some above ordinary high water. But the location of the land was not determinative. It was the dominion of the Government over the water power that controlled the decision. Both in Chandler-Dunbar and in this case, it is the water power that creates the special value, whether the lands are above or below ordinary high water. The holding in Chandler-Dunbar led us to say in United States v. Appalachian Power Co., supra, 311 U.S. at 311 U. S. 424, that the "exclusion of riparian owners" from the benefits of the power in a navigable stream "without compensation is entirely within the Government's discretion." And again,"If the Government were now to build the dam, it would have to pay the fair value, judicially determined, for the fast land; nothing for the water power."Id. at 311 U. S. 427.The power company in the present case is certainly in no stronger position than the owner of the hydroelectric site in the Chandler-Dunbar case. While the latter was deprived of a going private power project by the Government, the present private owners never had a power project on the Savannah, and, as a result of the Government's preemption, never can have one.It is no answer to say that these private owners had interests in the water that were recognized by state law. We deal here with the federal domain, an area which Congress can completely preempt, leaving no vested private claims that constitute "private property" within the meaning of the Fifth Amendment. Location of the lands might, under some circumstances, give them special value, Page 350 U. S. 228 as our cases have illustrated. But to attach a value of water power of the Savannah River due to location and to enforce that value against the United States would go contra to the teaching of Chandler-Dunbar -- "that the running water in a great navigable stream is capable of private ownership is inconceivable." 229 U.S. at 229 U. S. 69.The holding of the Chandler-Dunbar case that water power in a navigable stream is not, by force of the Fifth Amendment, a compensable interest when the United States asserts its easement of navigation is in harmony with another rule of law expressed in United States v. Miller, 317 U. S. 369, 317 U. S. 375."Since the owner is to receive no more than indemnity for his loss, his award cannot be enhanced by any gain to the taker. Thus, although the market value of the property is to be fixed with due consideration of all its available uses, its special value to the condemnor, as distinguished from others who may or may not possess the power to condemn, must be excluded as an element of market value."The Court in the Chandler-Dunbar case emphasized that it was only loss to the owner, not gain to the taker, that is compensable. 229 U.S. at 229 U. S. 76. If the owner of the fast lands can demand water power value as part of his compensation, he gets the value of a right that the Government, in the exercise of its dominant servitude, can grant or withhold as it chooses. The right has value or is an empty one dependent solely on the Government. What the Government can grant or withhold and exploit for its own benefit has a value that is peculiar to it, and that no other user enjoys. Cf. United States ex rel. TVA v. Powelson, 319 U. S. 266, 319 U. S. 273. To require the United States to pay for this water power value would be to create private claims in the public domain.Reversed

U.S. Supreme CourtUnited States v. Twin City Power Co., 350 U.S. 222 (1956)United States v. Twin City Power Co.,No. 21Argued October 18, 1955Decided January 23, 1956350 U.S. 222SyllabusIn a suit brought by the United States for the condemnation of private land adjoining a navigable river as part of a project for the improvement of the Savannah River basin, the just compensation which the Fifth Amendment requires to be paid does not include the value of the water power in the flow of the stream. Pp. 350 U. S. 223-228.(a) A federal court may not substitute its judgment for a congressional determination that the taking is for the improvement or protection of navigation. P. 350 U. S. 224.(b) If the interests of navigation are served, it is constitutionally irrelevant that other purposes also may be advanced. P. 350 U. S. 224.(c) The interest of the United States in the flow of a navigable stream derives from the Commerce Clause, and can be asserted to the exclusion of any competing or conflicting interest. Pp. 350 U. S. 224-225.(d) The fact that the land does not lie in the bed of the river nor below high water, but above and beyond the ordinary high water mark, does not entitle the owner to compensation based on a value in the flow of the stream. Pp. 350 U. S. 225-226.(e) United States v. Gerlach Live Stock Co., 339 U. S. 725, Federal Power Commission v. Niagara Mohawk Power Corp., 347 U. S. 239, and United States v. Kansas City Life Ins. Co., 339 U. S. 799, distinguished. United States v. Chandler-Dunbar Co., 229 U. S. 53, followed. Pp. 350 U. S. 225-228.( f ) The fact that the private owners had interests in the water that were recognized by state law does not entitle them to compensation for such value. Pp. 350 U. S. 227-228.(g) Under the Fifth Amendment, only loss to the owner, not gain to the taker, is compensable. P. 350 U. S. 228.(h) To require the United States to pay for this water power value would be to create private claims in the public domain. P. 350 U. S. 228.215 F.2d 592 reversed. Page 350 U. S. 223

1971_71-110

MR. JUSTICE BRENNAN delivered the opinion of the Court. These cases present challenges to the validity of adjudications of civil contempt, pursuant to 28 U.S.C. § 1826(a), [Footnote 1] of witnesses before federal grand juries Page 408 U. S. 43 who refused to comply with court orders to testify. The refusals were defended upon the ground that interrogation was to be based upon information obtained from the witnesses' communications, allegedly intercepted by federal agents by means of illegal wiretapping and electronic surveillance. A provision of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211, as amended, 18 U.S.C. §§ 2510-2520, directs that, "[w]henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any . . . proceeding in or before any . . . grand jury . . . if the disclosure of that information would be in violation of this chapter." 18 U.S.C. § 2515. [Footnote 2] The question presented is whether grand jury witnesses, in proceedings under 28 U.S.C. § 1826(a), are entitled to invoke this prohibition of § 2515 as a defense to contempt charges brought against them for refusing to testify. In No. 71-110, the Court of Appeals for the Ninth Circuit held that they are not entitled to do so. United States v. Gelbard, 443 F.2d 837 (1971). In No. 71-263, the Court of Appeals for the Third Circuit, en banc, reached the contrary conclusion. In re Grand Jury Proceedings, Harrisburg, Pennsylvania (Egan), 450 Page 408 U. S. 44 F.2d 199 (1971); In re Grand Jury Proceedings, Harrisburg, Pennsylvania (Walsh), 450 F.2d 231 (1971). We granted certiorari. 404 U.S. 990 (197). [Footnote 3] We disagree with the Court of Appeals for the Ninth Circuit and agree with the Court of Appeals for the Third Circuit. No. 71-110. A federal district Judge approved wiretaps by federal agents of the telephones of Perry Paul, an alleged bookmaker, and Jerome Zarowitz, a former executive of a Las Vegas casino. In the course of those taps, the agents overheard conversations between Paul and petitioner Gelbard and between Zarowitz and petitioner Parnas. Petitioners were subsequently called before a federal grand jury convened in Los Angeles to investigate possible violations of federal gambling laws. The Government asserted that petitioners would be questioned about third parties and that the questions would be based upon petitioners' intercepted telephone conversations. Petitioners appeared before the grand jury, but declined to answer any questions based upon their intercepted conversations until they were afforded an opportunity to challenge the legality of the interceptions. Following a hearing, the United States District Court for the Central District of California found petitioners in contempt and, pursuant to 28 Page 408 U. S. 45 U.S.C. § 1826(a), committed them to custody for the life of the grand jury or until they answered the questions. No. 71-263. Respondents Egan and Walsh were called before a federal grand jury convened in Harrisburg, Pennsylvania, to investigate, among other possible crimes, an alleged plot to kidnap a Government official. Pursuant to 18 U.S.C. § 2514, both respondents were granted transactional immunity in return for their testimony. Respondents appeared before the grand jury but refused to answer questions on the ground, among others, that the questions were based upon information overheard from respondents by means of the Government's illegal wiretapping and electronic surveillance. The Government did not reply to respondents' allegations. [Footnote 4] Following a hearing, the United States District Court for the Middle District of Pennsylvania found respondents in contempt, and they were also committed to custody pursuant to 28 U.S.C. § 1826(a). Section 1826(a) expressly limits the adjudication of civil contempt to the case of a grand jury witness who "refuses without just cause shown to comply with an order of the court to testify." Our inquiry, then, is whether a showing that interrogation would be based upon the illegal interception of the witness' communications constitutes a showing of "just cause" that precludes a finding of contempt. The answer turns on the construction of Title III of the Omnibus Crime Control Act. [Footnote 5] Page 408 U. S. 46 I In Title III, Congress enacted a comprehensive scheme for the regulation of wiretapping and electronic surveillance. See United States v. United States District Court, 407 U. S. 297, 407 U. S. 301-306. Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified serious crimes and receive prior judicial approval, an approval that may not be given except upon compliance with stringent conditions. 18 U.S.C. §§ 2516, 2518(1)-(8). If a wire or oral communication is intercepted in accordance with the provisions of Title III, the contents of the communication may be disclosed and used under certain circumstances. 18 U.S.C. § 2517. Except as expressly authorized in Title III, however, all interceptions of wire and oral communications are flatly prohibited. Unauthorized interceptions and the disclosure or use of information obtained through unauthorized interceptions are crimes, 18 U.S.C. § 2511(1), and the victim of such interception, disclosure, or use is entitled to recover civil damages, 18 U.S.C. § 2520. Title III also bars the use as evidence before official bodies of the contents and fruits of illegal interceptions, 18 U.S.C. § 2515, and provides procedures for moving to suppress such evidence in various proceedings, 18 U.S.C. § 2518(9)-(10). The witnesses in these cases were held in contempt for disobeying court orders by refusing to produce evidence their testimony -- before grand juries. Consequently, their primary contention is that § 2515, the evidentiary prohibition of Title III, afforded them a defense to the contempt charges. In addressing that contention, we must assume, in the present posture of Page 408 U. S. 47 these cases, that the Government has intercepted communications of the witnesses and that the testimony the Government seeks from them would be, within the meaning of § 2515, "evidence derived" from the intercepted communications. We must also assume that the communications were not intercepted in accordance with the specified procedures, and thus that the witnesses' potential testimony would be "disclosure" in violation of Title III. See 18 U.S.C. §§ 2511(1), 2517(3). In short, we proceed on the premise that § 2515 prohibits the presentation to grand juries of the compelled testimony of these witnesses. The narrow question, then, is whether, under these circumstances, the witnesses may invoke the prohibition of § 2515 as a defense to contempt charges brought on the basis of their refusal to obey court orders to testify. We think they may. The unequivocal language of § 2515 expresses the fundamental policy adopted by Congress on the subject of wiretapping and electronic surveillance. As the congressional findings for Title III make plain, that policy is strictly to limit the employment of those techniques of acquiring information: "To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction, and should remain under the control and supervision of the authorizing court. Interception of wire and oral communications should further be limited to certain major types of offenses and specific categories of crime with assurances that the interception is justified and that the information Page 408 U. S. 48 obtained thereby will not be misused." § 801(d), 82 Stat. 211. [Footnote 6] The Senate committee report that accompanied Title III underscores the congressional policy: "Title III has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. To assure the privacy of oral and wire communications, title III prohibits all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officers engaged in the investigation or prevention of specified types of serious crimes, and only after authorization of a court order obtained after a showing and finding of probable cause." S.Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968). Hence, although Title III authorizes invasions of individual privacy under certain circumstances, the protection of privacy was an overriding congressional concern. [Footnote 7] Indeed, the congressional findings articulate Page 408 U. S. 49 clearly the intent to utilize the evidentiary prohibition of § 2515 to enforce the limitations imposed by Title III upon wiretapping and electronic surveillance: "In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of interstate commerce, it is necessary for Congress to define on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized, to prohibit any unauthorized interception of such communications, and the use of the contents thereof in evidence in courts and administrative proceedings." § 801(b), 82 Stat. 211 (emphasis added). [Footnote 8] And the Senate report, like the congressional findings, specifically addressed itself to the enforcement, by means Page 408 U. S. 50 of § 2515, of the limitations upon invasions of individual privacy: "Virtually all concede that the use of wiretapping or electronic surveillance techniques by private unauthorized hands has little justification where communications are intercepted without the consent of one of the participants. No one quarrels with the proposition that the unauthorized use of these techniques by law enforcement agents should be prohibited. . . . Only by striking at all aspects of the problem can privacy be adequately protected. The prohibition, too, must be enforced with all appropriate sanctions. Criminal penalties have their part to play. But other remedies must be afforded the victim of an unlawful invasion of privacy. Provision must be made for civil recourse for damages. The perpetrator must be denied the fruits of his unlawful actions in civil and criminal proceedings. Each of these objectives is sought by the proposed legislation." S.Rep. No. 1097, supra, at 69 (emphasis added). Section 2515 is thus central to the legislative scheme. Its importance as a protection for "the victim of an unlawful invasion of privacy" could not be more clear. [Footnote 9] Page 408 U. S. 51 The purposes of § 2515 and Title III as a whole would be subverted were the plain command of § 2515 ignored when the victim of an illegal interception is called as a witness before a grand jury and asked questions based upon that interception. Moreover, § 2515 serves not only to protect the privacy of communications, [Footnote 10] but also to ensure that the courts do not become partners to illegal conduct: the evidentiary prohibition was enacted also "to protect the integrity of court and administrative proceedings." Consequently, to order a grand jury witness, on pain of imprisonment, to disclose evidence that 2515 bars in unequivocal terms is both to thwart the congressional objective of protecting individual privacy by excluding such evidence and to entangle the courts in the illegal acts of Government agents. In sum, Congress simply cannot be understood to have sanctioned orders to produce evidence excluded from grand jury proceedings by § 2515. Contrary to the Government's assertion that the invasion of privacy is over Page 408 U. S. 52 and done with, to compel the testimony of these witnesses compounds the statutorily proscribed invasion of their privacy by adding to the injury of the interception the insult of compelled disclosure. And, of course, Title III makes illegal not only unauthorized interceptions, but also the disclosure and use of information obtained through such interceptions. 18 U.S.C. § 2511(1); see 18 U.S.C. § 2520. Hence, if the prohibition of § 2515 is not available as a defense to the contempt charge, disclosure through compelled testimony makes the witness the victim, once again, of a federal crime. Finally, recognition of § 2515 as a defense "relieves judges of the anomalous duty of finding a person in civil contempt for failing to cooperate with the prosecutor in a course of conduct which, if pursued unchecked, could subject the prosecutor himself to heavy civil and criminal penalties." In re Grand Jury Proceedings, Harrisburg Pennsylvania (Egan), 450 F.2d at 220 (Rosenn, J., concurring). "And for a court, on petition of the executive department, to sentence a witness who is herself the victim of the illegal wiretapping to jail for refusal to participate in the exploitation of that crime in violation of the explicit command of Section 2515 is to stand our whole system of criminal justice on its head." In re Evans, 146 U.S.App.D.C. 310, 323, 452 F.2d 1239, 1252 (1971) (Wright, J., concurring). II Our conclusion that § 2515 is an available defense to the contempt charge finds additional support in 18 U.S.C. § 3504, enacted as part of the Organized Crime Control Act of 1970, 84 Stat. 935. Section 3504 is explicit confirmation that Congress intended that grand jury witnesses, in reliance upon the prohibition of § 2515, might refuse to answer questions based upon the illegal interception of their communications. Page 408 U. S. 53 Section 3504 provides: "(a) In any . . . proceeding in or before any . . . grand Jury. . . ." "(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act." Under § 3504(a)(2), disclosure of information relating to the claim of inadmissibility is not mandatory if the "unlawful act" took place before June 19, 1968, the effective date of Title III. Under § 3504(a)(3), there is a five-year limitation upon the consideration of a claim of inadmissibility based upon "the exploitation of an unlawful act" that took place before June 19, 1968. Section 3504(b), by reference to Title III, defines an "unlawful act" as one involving illegal wiretapping or electronic surveillance. [Footnote 11] Page 408 U. S. 54 Section 3504, then, establishes procedures to be followed "upon a claim by a party aggrieved that evidence is inadmissible because" of an illegal interception. And § 3504 tracks § 2515 in its application to grand jury proceedings. Indeed, "[t]he language used in defining the types of proceedings, types of forums, and jurisdictions in which section 3504 is applicable was taken from 18 U.S.C. § 2515." S.Rep. No. 91-617, p. 154 (1969). [Footnote 12] In the application of § 3504 to "any . . . proceeding in or before any . . . grand jury," "a party aggrieved" can only be a witness, for there is no other "party" to a grand jury proceeding. Moreover, a "claim . . . that evidence is inadmissible" can only be a claim that the witness' potential testimony is inadmissible. Hence, § 3504, by contemplating "a claim by a party aggrieved that evidence is inadmissible because" of an illegal interception, necessarily recognizes that grand jury witnesses may rely upon the prohibition of § 2515 in claiming that the evidence sought from them is inadmissible in the grand jury proceedings. Upon such a claim by a grand jury witness, the Government, as "the opponent of the claim," is required under § 3504(a)(1) to Page 408 U. S. 55 "affirm or deny the occurrence of the alleged" illegal interception. Section 3504 thus confirms that Congress meant that grand jury witnesses might defend contempt charges by invoking the prohibition of § 2515 against the compelled disclosure of evidence obtained in violation of Title III. The Government urges, however, that the procedures prescribed in § 3504 are limited in application to claims of inadmissibility based upon illegal interceptions that took place before June 19, 1968, and that § 3504 cannot, therefore, provide support for a construction of § 2515. We disagree. While subsections (a)(2) and (a)(3) apply only when the illegal interception took place before June 19, 1968, it is clear both from the face of § 3504 [Footnote 13] and from its legislative history that subsection (a)(1), imposing the duty upon "the opponent of the claim" to "affirm or deny the occurrence of the alleged" illegal interception, is not similarly limited. The omission of the June 19, 1968, date from subsection (a)(1) was not inadvertent. Subsection (a)(1) was not in the original Senate bill, although the bill did contain counterparts of present subsections (a)(2) and (a)(3) without the Jun 19, 1968, or any other date limitation. [Footnote 14] See Hearings before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary on S. 30 et al., 91st Cong., 1st Sess., 102-105 Page 408 U. S. 56 (1969). Subsection (a)(1) was added at the suggestion of the Department of Justice. At that time, the Department followed the practice of searching Government files for information about wiretaps and eavesdropping. The Department advised the Senate Judiciary Committee that, while it had been "conduct[ing] such examinations as a matter of policy even in cases where no motion ha[d] been filed . . . , defendants should be assured such an examination by a specific requirement of law, rather than hav[ing] to rely upon the continued viability of a current policy." Id. at 553. The Senate report on § 3504 explained that, "since [subsection (a)(1)] requires a pending claim as a predicate to disclosure, it sets aside the present wasteful practice of the Department of Justice in searching files without a motion from a defendant." S.Rep. No. 91-617, p. 154 (1969). The reason assigned in the Senate for enacting subsection (a)(1) was thus as applicable to post- as it was to pre-June 19, 1968, interceptions. The same was true of the House. There, subsection (a)(1) was supported on the ground that it would be beneficial to the victims of illegal interceptions. Senator McClellan, for example, who testified before the House Subcommittee, indicated that subsection (a)(1) "places upon the Government an affirmative duty to answer a claim that evidence is inadmissible because of unlawful investigative conduct." "The first requirement [of § 3504], that the Government admit or deny the occurrence of the alleged invasion of the defendant's rights, actually places or codifies a burden upon the Government, rather than the defendant." Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on S. 30 et al., 91st Cong., 2d Sess., 84, 104 (1970). Other witnesses thought the provision unnecessary. [Footnote 15] Indeed, one organization submitted Page 408 U. S. 57 a report that disapproved subsection (a)(1) on the ground that the Government should admit illegalities without a prior claim. Id. at 62 (Section of Criminal Law of the American Bar Association). It is also significant that congressional questioning of a representative of the Department of Justice at the hearings was directed to the Department's views on the insertion of a date limitation only in subsections (a)(2) and (a)(3). Id. at 659; see the Department's written response, id. at 675-676. The June 19, 1968, date was inserted in subsections (a)(2) and (a)(3) after the conclusion of the House hearings. It is apparent from the House report that only subsections (a)(2) and (a)(3) of the Senate version were to be limited by the June 19, 1968, date, and that subsection (a)(1) was to be operative without regard to when the alleged illegal interception may have taken place: "Paragraph (1) provides that, upon a claim by an aggrieved party that evidence is inadmissible because it is the primary product of an unlawful act, or because it was obtained by the exploitation of an unlawful act, the opponent of the claim must affirm or deny the occurrence of the alleged unlawful act. Under this provision, upon a charge by the defendant with standing to challenge the alleged unlawful conduct, the Government would be required to affirm or deny that an unlawful act Page 408 U. S. 58 involving electronic surveillance had in fact, occurred. If such an unlawful act had in fact, occurred, paragraph (2), below, will govern disclosure of the contents of the electronic surveillance records or transcripts to the defendant and his counsel, unless paragraph (3) applies." H.R.Rep. No. 91-1549, p. 51 (1970). This explanation demonstrates that "the opponent of the claim" [Footnote 16] has a duty to "affirm or deny" whenever "a party aggrieved" "claim[s] . . . that evidence is inadmissible because it is" derived from an illegal interception. The date June 19, 1968, becomes relevant only after it is determined that an illegal interception took place and an issue thus arises as to disclosure of information bearing on the claim. [Footnote 17] Page 408 U. S. 59 III The Government argues, finally, that, while § 2515 could be construed to allow a grand jury witness to invoke its prohibition as a defense to a contempt charge, "[i]f this section were the only relevant portion of [Title III]," Brief for the United States in No. 71-263, p. 19, proceedings before grand juries are omitted from another provision of Title III, § 2518(10)(a), that authorizes "[a]ny aggrieved person," [Footnote 18] in specified types of proceedings, to "move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom." [Footnote 19] But it does not follow from the asserted omission of grand jury proceedings from the suppression provision that grand jury witnesses cannot invoke § 2515 as a defense in a contempt proceeding under 28 U.S.C. § 1826(a). [Footnote 20] The congressional concern with the applicability Page 408 U. S. 60 of § 2518(10)(a) in grand jury proceedings, so far as it is discernible from the Senate report, was apparently that defendants and potential defendants might be able to utilize suppression motions to impede the issuance of indictments: "Normally, there is no limitation on the character of evidence that may be presented to a grand jury, which is enforceable by an individual. [United States v. Blue, 384 U. S. 251 (1966).] There is no intent to change this general rule." S.Rep. No. 1097, 90th Cong., 2d Sess., 106 (1968). The "general rule," as illustrated in Blue, is that a defendant is not entitled to have his indictment dismissed before trial simply because the Government "acquire[d] incriminating evidence in violation of the [law]," even if the "tainted evidence was presented to the grand jury." 384 U.S. at 384 U. S. 255 and n. 3; see Lawn v. United States, 355 U. S. 339 (1958); Costello v. United States, 350 U. S. 359 (1956). But that rule has nothing whatever to do with the situation of a grand jury witness who has refused to testify and attempts to defend a subsequent charge of contempt. Hence, we cannot agree that the Senate report expressed the view that a grand jury witness would be foreclosed from raising the § 2515 defense in a contempt proceeding under § 1826(a). Furthermore, grand jury witnesses do not normally discover whether they may refuse to answer questions by filing motions to suppress their potential testimony. The usual procedure is, upon the Government's motion, to have a court order a grand jury witness to testify upon penalty of contempt for noncompliance. Section 1826(a) embodies that traditional procedure. The asserted omission of grand jury proceedings from § 2518(10)(a) Page 408 U. S. 61 may well reflect congressional acceptance of that procedure as adequate in these cases. Consequently, we cannot suppose that Congress, by providing procedures for suppression motions, intended to deprive grand jury witnesses of the § 2515 defense that would otherwise be available to them. Although the Government points to statements in the Senate report to the effect that § 2518(10)(a) "limits" § 2515, we read those statements to mean that suppression motions, as a method of enforcing the prohibition of § 2515, must be made in accordance with the restrictions upon forums, procedures, and grounds specified in § 2518(10)(a). [Footnote 21] The judgment of the Court of Appeals for the Ninth Circuit in No. 71-110 is reversed, and the case is remanded for further proceedings consistent with this opinion. [Footnote 22] The judgment of the Court of Appeals for the Third Circuit in No. 71-263 is affirmed. [Footnote 23] It is so ordered

U.S. Supreme CourtGelbard v. United States, 408 U.S. 41 (1972)Gelbard v. United StatesNo. 71-110Argued March 27, 1972Decided June 26, 1972*408 U.S. 41SyllabusWhere a grand jury witness is adjudicated in civil contempt under 28 U.S.C. § 1826(a) for refusing "without just cause shown to comply with an order of the court to testify," the witness may invoke as a defense 18 U.S.C. § 2515, which directs that"[w]henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any . . . proceeding in or before any . . . grand jury . . . ,"since a showing that the interrogation would be based upon the illegal interception of the witness' communications would constitute the "just cause" that precludes a finding of contempt. Pp. 408 U. S. 46-61.No. 71-110, 443 F.2d 837, reversed and remanded; No. 71-263, 450 F.2d 199 and 450 F.2d 231, affirmed.BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. DOUGLAS, J., post, p. 408 U. S. 62, and WHITE, J., post, p. 408 U. S. 69, filed concurring opinions. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and BLACKMUN and POWELL, JJ., joined, post, p. 408 U. S. 71. Page 408 U. S. 42

1995_94-1453

General Kneedler, Thomas S. Williamson, Jr., Allen H. Feldman, Nathaniel 1. Spiller, and Edward D. Sieger. *JUSTICE THOMAS delivered the opinion of the Court.This case presents the issue whether federal courts possess ancillary jurisdiction over new actions in which a federal judgment creditor seeks to impose liability for a money judgment on a person not otherwise liable for the judgment. We hold that they do not.IRespondent Jack L. Thomas is a former employee of TruTech, Inc. In 1987, Thomas filed an ERISA class action in federal court against Tru-Tech and petitioner D. Grant Peacock, an officer and shareholder of Tru- Tech, for benefits due under the corporation's pension benefits plan. Thomas alleged primarily that Tru- Tech and Peacock breached their fiduciary duties to the class in administering the plan. The District Court found that Tru- Tech had breached its fiduciary duties, but ruled that Peacock was not a fiduciary. On November 28, 1988, the District Court entered judgment in the amount of $187,628.93 against Tru-Tech only. Thomas v. Tru-Tech, Inc., No. 87-2243-3 (D. S. C.). On April 3, 1990, the Court of Appeals for the Fourth Circuit affirmed. Judgt. order reported at 900 F.2d 256. Thomas did not exe-*Robert P. Davis and Kenneth S. Geller filed a brief for the National Association of Real Estate Investment Managers as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons et al. by Steven S. Zaleznick, Mary Ellen Signorille, Jeffrey Lewis, and Ronald Dean; for the American Federation of Labor and Congress of Industrial Organizations by Virginia A. Seitz, David M. Silberman, and Laurence Gold; for the Bricklayers & Trowel Trades International Pension Fund by Ira R. Mitzner and Woody N. Peterson; for the Central States, Southeast and Southwest Areas Health and Welfare and Pension Fund by Thomas C. Nyhan, Terrence C. Craig, and James P. Condon; and for the National Coordinating Committee for Multiemployer Plans by Diana L. S. Peters.352cute the judgment while the case was on appeal and, during that time, Peacock settled many of Tru- Tech's accounts with favored creditors, including himself.After the Court of Appeals affirmed the judgment, Thomas unsuccessfully attempted to collect the judgment from Tru-Tech. Thomas then sued Peacock in federal court, claiming that Peacock had entered into a civil conspiracy to siphon assets from Tru- Tech to prevent satisfaction of the ERISA judgment.1 Thomas also claimed that Peacock fraudulently conveyed Tru- Tech's assets in violation of South Carolina and Pennsylvania law. Thomas later amended his complaint to assert a claim for "Piercing the Corporate Veil Under ERISA and Applicable Federal Law." App. 49. The District Court ultimately agreed to pierce the corporate veil and entered judgment against Peacock in the amount of $187,628.93-the precise amount of the judgment against Tru-Tech-plus interest and fees, notwithstanding the fact that Peacock's alleged fraudulent transfers totaled no more than $80,000. The Court of Appeals affirmed, holding that the District Court properly exercised ancillary jurisdiction over Thomas' suit. 39 F.3d 493 (CA4 1994). We granted certiorari to determine whether the District Court had subject-matter jurisdiction and to resolve a conflict among the Courts of Appeals.2 514 U. S. 1126 (1995). We now reverse.IIThomas relies on the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 832, as amended, 291 Peacock's attorney was also named as a defendant in the suit, but the District Court rejected the claim against him.2 Compare 39 F.3d 493 (CA4 1994) (case below), Argento v. Melrose Park, 838 F.2d 1483 (CA7 1988), Skevofilax v. Quigley, 810 F.2d 378 (CA3) (en bane), cert. denied, 481 U. S. 1029 (1987), and Blackburn Truck Lines, Inc. v. Francis, 723 F.2d 730 (CA9 1984), with Sandlin v. Corporate Interiors Inc., 972 F.2d 1212 (CAW 1992), and Berry v. McLemore, 795 F. 2d 452 (CA5 1986).353u. S. C. § 1001 et seq., as the source of federal jurisdiction for this suit. The District Court did not expressly rule on subject-matter jurisdiction, but found that Thomas had properly stated a claim under ERISA for piercing the corporate veil. We disagree. We are not aware of, and Thomas does not point to, any provision of ERISA that provides for imposing liability for an extant ERISA judgment against a third party. See Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 833 (1988) ("ERISA does not provide an enforcement mechanism for collecting judgments ... ").We reject Thomas' suggestion, not made in the District Court, that this subsequent suit arose under § 502(a)(3) of ERISA, which authorizes civil actions for "appropriate equitable relief" to redress violations of ERISA or the terms of an ERISA plan. 29 U. S. C. § 1132(a)(3). Thomas' complaint in this lawsuit alleged no violation of ERISA or of the plan. The wrongdoing alleged in the complaint occurred in 1989 and 1990, some four to five years after Tru-Tech's ERISA plan was terminated, and Thomas did not-indeed, could not-allege that Peacock was a fiduciary to the terminated plan.3 Thomas further concedes that Peacock's alleged wrongdoing "did not occur with respect to the administration or operation of the plan." Brief for Respondent 11. Under the circumstances, we think Thomas failed to allege a claim under § 502(a)(3) for equitable relief. Section 502(a)(3) "does not, after all, authorize 'appropriate equitable relief' at large, but only 'appropriate equitable relief' for the purpose of 'redress[ing any] violations or ... enforc[ing] any provisions' of ERISA or an ERISA plan." Mertens v. Hewitt Associates, 508 U. S. 248, 253 (1993) (emphasis and modifications in original).Moreover, Thomas' veil-piercing claim does not state a cause of action under ERISA and cannot independently sup-3 The District Court in the original ERISA suit ruled that Peacock was not a fiduciary to Tru- Tech's plan.354port federal jurisdiction. Even if ERISA permits a plaintiff to pierce the corporate veil to reach a defendant not otherwise subject to suit under ERISA, Thomas could invoke the jurisdiction of the federal courts only by independently alleging a violation of an ERISA provision or term of the plan.4 Piercing the corporate veil is not itself an independent ERISA cause of action, "but rather is a means of imposing liability on an underlying cause of action." 1 C. Keating & G. O'Gradney, Fletcher Cyclopedia of Law of Private Corporations § 41, p. 603 (perm. ed. 1990). Because Thomas alleged no "underlying" violation of any provision of ERISA or an ERISA plan, neither ERISA's jurisdictional provision, 29 U. S. C. § 1132(e)(1), nor 28 U. S. C. § 1331 supplied the District Court with subject-matter jurisdiction over this suit.IIIThomas also contends that this lawsuit is ancillary to the original ERISA suit.5 We have recognized that a federal court may exercise ancillary jurisdiction "(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees." Kokkonen v. Guardian Life Ins. Co., 511 U. S. 375, 379-380 (1994) (citations omitted). Thomas has not carried his burden of demonstrating that this suit falls within either cate-4 This case is not at all like Anderson v. Abbott, 321 U. S. 349 (1944), cited by Thomas' amici, in which the receiver of a federal bank, having obtained a judgment against the bank, then sued the bank's shareholders to hold them liable for the judgment. In Anderson, federal jurisdiction was founded upon a federal law, 12 U. S. C. §§ 63, 64 (repealed), which specifically made shareholders of an undercapitalized federal bank liable up to the par value of their stock, regardless of the amount actually invested.5 Congress codified much of the common-law doctrine of ancillary jurisdiction as part of "supplemental jurisdiction" in 28 U. S. C. § 1367.355gory. See id., at 377 (burden rests on party asserting jurisdiction).A"[A]ncillary jurisdiction typically involves claims by a defending party haled into court against his will, or by another person whose rights might be irretrievably lost unless he could assert them in an ongoing action in a federal court." Owen Equipment & Erection Co. v. Kroger, 437 U. S. 365, 376 (1978). Ancillary jurisdiction may extend to claims having a factual and logical dependence on "the primary lawsuit," ibid., but that primary lawsuit must contain an independent basis for federal jurisdiction. The court must have jurisdiction over a case or controversy before it may assert jurisdiction over ancillary claims. See Mine Workers v. Gibbs, 383 U. S. 715, 725 (1966). In a subsequent lawsuit involving claims with no independent basis for jurisdiction, a federal court lacks the threshold jurisdictional power that exists when ancillary claims are asserted in the same proceeding as the claims conferring federal jurisdiction. See Kokkonen, supra, at 380-381; H. C. Cook Co. v. Beecher, 217 U. S. 497, 498-499 (1910). Consequently, claims alleged to be factually interdependent with and, hence, ancillary to claims brought in an earlier federal lawsuit will not support federal jurisdiction over a subsequent lawsuit. The basis of the doctrine of ancillary jurisdiction is the practical need "to protect legal rights or effectively to resolve an entire, logically entwined lawsuit." Kroger, 437 U. S., at 377. But once judgment was entered in the original ERISA suit, the ability to resolve simultaneously factually intertwined issues vanished. As in Kroger, "neither the convenience of litigants nor considerations of judicial economy" can justify the extension of ancillary jurisdiction over Thomas' claims in this subsequent proceeding. Ibid.In any event, there is insufficient factual dependence between the claims raised in Thomas' first and second suits to justify the extension of ancillary jurisdiction. Thomas'356factual allegations in this suit are independent from those asserted in the ERISA suit, which involved Peacock's and Tru-Tech's status as plan fiduciaries and their alleged wrongdoing in the administration of the plan. The facts relevant to this complaint are limited to allegations that Peacock shielded Tru-Tech's assets from the ERISA judgment long after Tru- Tech's plan had been terminated. The claims in these cases have little or no factual or logical interdependence, and, under these circumstances, no greater efficiencies would be created by the exercise of federal jurisdiction over them. See Kokkonen, supra, at 380.BThe focus of Thomas' argument is that his suit to extend liability for payment of the ERISA judgment from Tru-Tech to Peacock fell under the District Court's ancillary enforcement jurisdiction. We have reserved the use of ancillary jurisdiction in subsequent proceedings for the exercise of a federal court's inherent power to enforce its judgments. Without jurisdiction to enforce a judgment entered by a federal court, "the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution." Riggs v. Johnson County, 6 Wall. 166, 187 (1868). In defining that power, we have approved the exercise of ancillary jurisdiction over a broad range of supplementary proceedings involving third parties to assist in the protection and enforcement of federal judgmentsincluding attachment, mandamus, garnishment, and the prejudgment avoidance of fraudulent conveyances. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S., at 834, n. 10 (garnishment); Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U. S. 684, 690692 (1950) (prejudgment attachment of property); Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329, 332-333 (1887) (prejudgment voidance of fraudulent transfers); Labette County Comm'rs v. United States ex rel. Moulton, 112 U. S.357217, 221-225 (1884) (mandamus to compel public officials in their official capacity to levy tax to enforce judgment against township); Krippendorf v. Hyde, 110 U. S. 276, 282-285 (1884) (prejudgment dispute over attached property); Riggs, supra, at 187-188 (mandamus to compel public officials in their official capacity to levy tax to enforce judgment against county).6Our recognition of these supplementary proceedings has not, however, extended beyond attempts to execute, or to guarantee eventual executability of, a federal judgment. We have never authorized the exercise of ancillary jurisdiction in a subsequent lawsuit to impose an obligation to pay an existing federal judgment on a person not already liable for that judgment. Indeed, we rejected an attempt to do so in H. C. Cook Co. v. Beecher, 217 U. S. 497 (1910). In Beecher, the plaintiff obtained a judgment in federal court against a corporation that had infringed its patent. When the plaintiff could not collect on the judgment, it sued the individual directors of the defendant corporation, alleging that, during the pendency of the original suit, they had au-6 The United States, as amicus curiae for Thomas, suggests that the proceeding below was jurisdictionally indistinguishable from Swift & Co. Packers v. Compania Colombiana Del Caribe, S. A., 339 U. S. 684 (1950), Dewey v. West Fairmont Gas Coal Co., 123 U. S. 329 (1887), Labette County Comm'rs v. United States ex rel. Moulton, 112 U. S. 217 (1884), and Riggs v. Johnson County, 6 Wall. 166 (1868), because it was intended merely as a supplemental bill to preserve and force payment of the ERISA judgment by voiding fraudulent transfers of Tru- Tech's assets. Brief for United States as Amicus Curiae 9-18. We decline to address this argument, because, even if Thomas could have sought to force payment by mandamus or to void post judgment transfers, neither Thomas nor the courts below characterized this suit that way. Indeed, Thomas expressly rejects that characterization of his lawsuit. Brieffor Respondent 4 ("This action ... is not one to collect a judgment, but one to establish liability on the part of the Petitioner") (emphasis in original); see id., at 11. In any event, the United States agrees that the alleged fraudulent transfers totaled no more than $80,000, far less than the judgment actually imposed on Peacock. Brief for United States as Amicus Curiae 3.358thorized continuing sales of the infringing product and knowingly permitted the corporation to become insolvent. We agreed with the Circuit Court's characterization of the suit as "an attempt to make the defendants answerable for the judgment already obtained" and affirmed the court's decision that the suit was not "ancillary to the judgment in the former suit." Id., at 498-499. Beecher governs this case and persuades us that Thomas' attempt to make Peacock answerable for the ERISA judgment is not ancillary to that judgment.Labette County Comm'rs and Riggs are not to the contrary. In those cases, we permitted a judgment creditor to mandamus county officials to force them to levy a tax for payment of an existing judgment. Labette County Comm'rs, supra, at 221-225; Riggs, supra, at 187-188. The order in each case merely required compliance with the existing judgment by the persons with authority to comply. We did not authorize the shifting of liability for payment of the judgment from the judgment debtor to the county officials, as Thomas attempts to do here.In determining the reach of the federal courts' ancillary jurisdiction, we have cautioned against the exercise of jurisdiction over proceedings that are" 'entirely new and original,'" Krippendorf v. Hyde, supra, at 285 (quoting Minnesota Co. v. St. Paul Co., 2 Wall. 609, 633 (1865)), or where "the relief [sought is] of a different kind or on a different principle" than that of the prior decree. Dugas v. American Surety Co., 300 U. S. 414, 428 (1937). These principles suggest that ancillary jurisdiction could not properly be exercised in this case. This action is founded not only upon different facts than the ERISA suit, but also upon entirely new theories of liability. In this suit, Thomas alleged civil conspiracy and fraudulent transfer of Tru- Tech's assets, but, as we have noted, no substantive ERISA violation. The alleged wrongdoing in this case occurred after the ERISA judgment was entered, and Thomas' claims-civil conspiracy, fraudulent conveyance, and "veil piercing"-all involved new359theories of liability not asserted in the ERISA suit. Other than the existence of the ERISA judgment itself, this suit has little connection to the ERISA case. This is a new action based on theories of relief that did not exist, and could not have existed, at the time the court entered judgment in the ERISA case.Ancillary enforcement jurisdiction is, at its core, a creature of necessity. See Kokkonen, 511 U. S., at 380; Riggs, 6 Wall., at 187. When a party has obtained a valid federal judgment, only extraordinary circumstances, if any, can justify ancillary jurisdiction over a subsequent suit like this. To protect and aid the collection of a federal judgment, the Federal Rules of Civil Procedure provide fast and effective mechanisms for execution.7 In the event a stay is entered pending appeal, the Rules require the district court to ensure that the judgment creditor's position is secured, ordinarily by a supersedeas bond.8 The Rules cannot guarantee payment of every federal judgment. But as long as they protect a judgment creditor's ability to execute on a judgment, the district court's authority is adequately preserved, and ancillary jurisdiction is not justified over a new lawsuit to impose liability for a judgment on a third party. Contrary to Thomas' suggestion otherwise, we think these procedural safeguards are sufficient to prevent wholesale fraud upon the district courts of the United States.7 Rule 69(a), for instance, permits judgment creditors to use any execution method consistent with the practice and procedure of the State in which the district court sits. Rule 62(a) further protects judgment creditors by permitting execution on a judgment at any time more than 10 days after the judgment is entered.8 The district court may only stay execution of the judgment pending the disposition of certain post-trial motions or appeal if the court provides for the security of the judgment creditor. Rule 62(b) (stay pending posttrial motions "on such conditions for the security of the adverse party as are proper"); Rule 62(d) (stay pending appeal "by giving a supersedeas bond").360IVFor these reasons, we hold that the District Court lacked jurisdiction over Thomas' subsequent suit. Accordingly, the judgment of the Court of Appeals isReversed

OCTOBER TERM, 1995SyllabusPEACOCK v. THOMASCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 94-1453. Argued November 6, 1995-Decided February 21, 1996Respondent Thomas filed an Employee Retirement Income Security Act of 1974 (ERISA) class action against his former employer, Tru-Tech, Inc., and petitioner Peacock, a Tru-Tech officer and shareholder, alleging that they had breached their fiduciary duties to the class in administering Tru-Tech's pension benefits plan, and seeking benefits due under the plan. The District Court entered a money judgment against Tru-Tech upon finding that it had breached its fiduciary duties, but ruled that Peacock was not a fiduciary. Thomas did not execute the judgment while the case was on appeal and, during that time, Peacock settled many of Tru-Tech's accounts with favored creditors, including himself. After the Court of Appeals affirmed the judgment and attempts to collect it from Tru-Tech proved unsuccessful, Thomas sued Peacock in federal court, asserting, inter alia, a claim for "Piercing the Corporate Veil Under ERISA and Applicable Federal Law." The District Court ultimately agreed to pierce the corporate veil and entered judgment against Peacock in the amount of the judgment against Tru-Tech. The Court of Appeals affirmed, holding that the District Court properly exercised ancillary jurisdiction over Thomas' suit.Held: The District Court lacked jurisdiction over Thomas' subsequent suit. Pp. 352-360.(a) Neither ERISA's jurisdictional provision, 29 U. S. C. § 1132(e)(1), nor 28 U. S. C. § 1331 supplied the District Court with subject-matter jurisdiction over this suit. The Court rejects Thomas' suggestion that the suit arose under 29 U. S. C. § 1132(a)(3), which authorizes civil actions for "appropriate equitable relief ... to redress [any] violations ... of [ERISA] or the terms of [an ERISA] plan." Because Thomas' complaint in this lawsuit alleged no such violations, he failed to allege a claim for equitable relief. Even if ERISA permits a plaintiff to pierce the corporate veil, such piercing is not itself an independent ERISA cause of action and cannot independently support federal jurisdiction. The District Court erred in finding that he had properly stated such a claim, since ERISA does not provide for imposing liability for an extant ERISA judgment against a third party. Pp. 352-354.(b) Federal courts do not possess ancillary jurisdiction over new actions in which a federal judgment creditor seeks to impose liability for350Syllabusa money judgment on a person not otherwise liable for the judgment. Although ancillary jurisdiction may be exercised (1) to permit disposition by a single court of factually interdependent claims, and (2) to enable a court to function successfully by effectuating its decrees, Thomas has not carried his burden of demonstrating that this suit falls within either category. First, because a federal court sitting in a subsequent lawsuit involving claims with no independent basis for jurisdiction lacks the threshold jurisdictional power that exists when ancillary claims are asserted in the same proceeding as the claims conferring federal jurisdiction, claims alleged to be factually interdependent with and, hence, ancillary to claims brought in the earlier suit will not support federal jurisdiction over the subsequent suit. In any event, there is insufficient factual or logical interdependence between the claims raised in Thomas' first and second suits. Second, cases in which this Court has approved the exercise of ancillary enforcement jurisdiction over attachment, garnishment, and other supplementary proceedings involving third parties are inapposite. This case is governed by H. C. Cook Co. v. Beecher, 217 U. S. 497, in which the Court refused to authorize the exercise of ancillary jurisdiction in a subsequent lawsuit to impose an obligation to pay an existing federal judgment on a person not already liable for that judgment. As long as the Federal Rules of Civil Procedure sufficiently protect a judgment creditor's ability to execute on a judgment, ancillary jurisdiction should not be exercised over proceedings, such as the present, that are new actions based on different theories of relief than the prior decree. Pp. 354-359.39 F.3d 493, reversed.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. 360.David L. Freeman argued the cause for petitioner. With him on the briefs were J. Theodore Gentry, Carter G. Phillips, and Richard D. Bernstein.J. Kendall Few argued the cause for respondent. With him on the brief were John C. Few, Margaret A. Chamberlain, and James R. Gilreath.Richard P. Bress argued the cause for the United States as Amicus Curiae in support of respondent. With him on the brief were Solicitor General Days, Deputy Solicitor351Full Text of Opinion

1958_61

MR. JUSTICE DOUGLAS delivered the opinion of the Court.Petitioner, Crumady, was an employee of a stevedoring company engaged in transferring a cargo of lumber from the ship Joachim Hendrik Fisser, of German registry, to a pier at Newark, New Jersey. While so engaged, he was injured, and brought this admiralty suit by libel in rem against the vessel. The vessel impleaded the stevedoring contractor.When the accident happened, the stevedores were trying to lift two timbers through a hatch. The manner of the accident was described as follows by the District Court:". . . libellant and his fellow employees had placed a double-eyed wire rope sling, provided with a sliding hook movable between the eyes thereof, around the two timbers at a location two or three feet from their after ends. The two eyes of the sling were then placed upon the cargo hook of the up-and-down boom runner, and a signal given by the stevedore gangwayman to the winchman to 'take up the slack.' The winchman complied with the signal, and, during this operation, libellant stood clear upon other timbers forming a part of the cargo, within the open square of the hatch. There was some testimony that, when the slack was taken up by the winchman, the two timbers slid toward each other in the sling, the timber Page 358 U. S. 425 which had been under the lower edge of the hatch coaming moving or commencing to move toward the timber which lay within the open hatch square. After the slack had been taken up by the winchman, the same signaler called for the 'taking of a strain' upon the cargo runner. The winchman again responded, the two-part topping-lift broke, and the head of the up-and-down boom, with its attached cargo and topping-lift blocks, fell to the top of the cargo within the hatch square.""The topping-lift had been rigged in a double purchase, and had been supporting the head of the boom. The wire rope constituting the topping-lift extended from a shackle on the topping-lift block at the cross-tree of the mast, through a block at the boom head, back through the mast block, down the mast, through a block welded to the mast table, and thence around a drum of the winch. When the boom fell, libellant was knocked down, either by the boom itself or its appurtenant tackle, and thus sustained numerous serious and permanently disabling orthopedic and neurological injuries."142 F. Supp. 389, 391.The safe working load of the boom and cargo runner and topping-lift handling the load at the time of the accident was three tons each. This equipment, which was part of the unloading and loading gear of the vessel, was in good condition. The winch, which served the boom, had a "cut off" device, or circuit breaker. It was set to shut off the current on the application of a load of about six tons, which was twice the safe working load of the unloading gear. The circuit breaker operated perfectly, cutting off current at the point of stress for which it was set. It had been set to operate at a load slightly more than twice Page 358 U. S. 426 the safe working load of the unloading gear* by employees of the ship before the winch was turned over to petitioner's fellow employees for operation.The District Court accordingly found the vessel unseaworthy, and therefore liable to petitioner. It also found that the stevedores moved the head of the boom in an effort to clear the cargo from the sides of the hatch, and that this "created a load on the topping-lift greatly in excess of its safe working load." This act was found to be "the primary cause of the parting of the topping-lift and consequent fall of the boom." Since the stevedoring company was found to be negligent in bringing "into play the unseaworthy condition of the vessel," the District Court directed the stevedoring company to indemnify the vessel for the damages to petitioner. 142 F. Supp. 389, 401. The Court of Appeals reversed, holding that the vessel was not unseaworthy, and that the sole cause of the injury was the negligence of the stevedores. 249 F.2d 818. A petition for rehearing was denied en banc, Judge Biggs dissenting. 249 F.2d 821. The cases are here on petitions for certiorari. 357 U.S. 903.1. We held in Seas Shipping Co. v. Sieracki, 328 U. S. 85, 328 U.S. 95, that stevedores, though intermediately employed, are, when performing "the ship's service," entitled to the same protection against unseaworthiness which members Page 358 U. S. 427 of the crew doing the same work would receive. And see Pope & Talbot v. Hawn, 346 U. S. 406. The work of loading and unloading is historically "the work of the ship's service." Seas Shipping Co. v. Sieracki, supra, at 328 U. S. 96.This protection against unseaworthiness imposes a duty which the owner of the vessel cannot delegate. Seas Shipping Co. v. Sieracki, supra, at 328 U. S. 100. Unseaworthiness extends not only to the vessel, but to the crew (Boudoin v. Lykes Bros. Steamship Co., 348 U. S. 336) and to appliances that are appurtenant to the ship. Mahnich v. Southern S.S. Co., 321 U. S. 96. And, as to appliances, the duty of the shipowner does not end with supplying them -- he must keep them in order. Id. at 321 U. S. 104; The Osceola, 189 U. S. 158, 189 U. S. 175. The shipowner is not relieved of these responsibilities by turning control of the loading or unloading of the ship over to a stevedoring company. It was held in Grillea v. United States, 232 F.2d 919, that stevedores themselves could render a ship pro tanto unseaworthy and make the vessel owner liable for injuries to one of them. And see Rogers v. United States Lines, 347 U.S. 984; Alaska S.S. Co. v. Petterson, 347 U. S. 396. We need not go so far to sustain the District Court here. For there is ample evidence to support the finding that these stevedores did no more than bring into play the unseaworthy condition of the vessel. The winch -- an appurtenance of the vessel -- was not inherently defective, as was the rope in the Mahnich case. But it was adjusted by those acting for the vessel owner in a way that made it unsafe and dangerous for the work at hand. While the rigging would take only three tons of stress, the cutoff of the winch -- its safety device -- was set at twice that limit. This was rigging that went with the vessel, and was safe for use within known limits. Yet those limits were disregarded by the vessel owner when the winch was adjusted. The case is no different in principle from Page 358 U. S. 428 loading or unloading cargo with cable or rope lacking the test strength for the weight of the freight to be moved. In that case, the cable or rope, in this case, the winch, makes the vessel pro tanto unseaworthy. That was the theory of the District Court; it correctly applied the concept of unseaworthiness; and its findings of fact were not clearly erroneous. McAllister v. United States, 348 U. S. 19, 348 U. S. 20.II. A majority of the Court ruled in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U. S. 124, that where a shipowner and stevedoring company entered into a service agreement, the former was entitled to indemnification for all damages it sustained as a result of the stevedoring company's breach of its warranty of workmanlike service. And see Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U. S. 563. The facts here are different from those in the Ryan case, in that this vessel had been chartered by its owners to Ovido Compania Naviera S.A. Panama, which company entered into the service agreement with this stevedoring company. The contract, however, mentioned the name of the vessel on which the work was to be done, and contained an agreement on the part of the stevedoring company "to faithfully furnish such stevedoring services."We think this case is governed by the principle announced in the Ryan case. The warranty which a stevedore owes when he goes aboard a vessel to perform services is plainly for the benefit of the vessel, whether the vessel's owners are parties to the contract or not. That is enough to bring the vessel into the zone of modern law that recognizes rights in third-party beneficiaries. Restatement, Law of Contracts, § 133. Moreover, as we said in the Ryan case, "competency and safety of stowage are inescapable elements of the service undertaken." 350 U.S. at 350 U. S. 133. They are part of the stevedore's"warranty of workmanlike service that is comparable to a manufacturer's warranty of the soundness of its manufactured Page 358 U. S. 429 product."Id. at 350 U. S. 133-134. See MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050.We conclude that, since the negligence of the stevedores, which brought the unseaworthiness of the vessel into play, amounted to a breach of the warranty of workmanlike service, the vessel may recover over.The judgment of the Court of Appeals is reversed, and the judgment of the District Court is reinstated.It is so ordered

U.S. Supreme CourtCrumady v. The Joachim Hendrik Fisser, 358 U.S. 423 (1959)Crumady v. The Joachim Hendrik FisserNo. 61Argued January 12-13, 1959Decided February 24, 1959*358 U.S. 423SyllabusPetitioner was injured while working for a stevedoring company engaged in unloading a ship in an American port under contract with a third party to whom the ship had been chartered. Petitioner brought this admiralty suit by libel in rem against the ship, which impleaded the stevedoring company. The District Court found that the ship was unseaworthy, and therefore liable to petitioner, but it also found that the primary cause of the accident was negligence of the stevedoring company which brought into play the unseaworthy condition of the ship, and it directed the stevedoring company to indemnify the ship for the damages to petitioner.Held: the judgment of the District Court is sustained. Pp. 358 U. S. 424-429.1. The District Court correctly applied the concept of unseaworthiness, and its findings of fact were not clearly erroneous. Pp. 358 U. S. 426-428.2. Since the negligence of the stevedoring company which brought the unseaworthiness of the ship into play amounted to a breach of the warranty of workmanlike service, and that warranty was for the benefit of the ship, the ship is entitled to indemnity from the stevedoring company. Pp. 358 U. S. 428-429.249 F.2d 818 reversed, and judgment of the District Court reinstated. Page 358 U. S. 424

1967_66

MR. JUSTICE MARSHALL delivered the opinion of the Court.This is a treble damage action under § 4 of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, for alleged violations of both § 1 and § 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2. The District Court granted a directed verdict, at the close of plaintiff' case, for the defendant, Sunkist Growers, Inc. The Court of Appeals for the Ninth Circuit reversed as to that portion of the complaint predicated on § 2 of the Sherman Act, holding that sufficient evidence was presented that Sunkist monopolized or attempted to monopolize trade in the relevant market; [Footnote 1] it affirmed a to the dismissal of the Sherman Act § 1 charge, holding that Sunkist qualified as a cooperative organization under the Capper-Volstead Act, 42 Stat. 388, 7 U.S.C. § 291, [Footnote 2] and therefore could Page 389 U. S. 386 not be held for any intra-organizational conspiracy to restrain trade. In order to determine the scope of that exemption from the antitrust laws, we granted certiorari. 387 U.S. 903 (1967).The issue is whether Sunkist is an association of "[p]ersons engaged in the production of agricultural products as . . . fruit growers" within the meaning of the Capper-Volstead Act, notwithstanding that certain of its members are not actually growers. We hold that it is not.IThe organizational structure of the Sunkist system is as follows. At the base are some 12,000 growers of citrus fruit in Arizona and California. The growers are organized into "local associations," as they are designated in Sunkist's bylaws, numbering approximately 160, each of which operates a packing house for the preparation of the fruit for market. The vast majority of these local associations -- about 80% by number and 82% by volume of fruit marketed in the Sunkist system -- are, it is stipulated, cooperative associations in which all members are fruit growers. [Footnote 3] A few of the local associations Page 389 U. S. 387 -- no more than 5% by number and volume of fruit -- are corporate growers whose total volume is sufficient to justify installation of their own packing house facilities.The remainder of the local associations (also designated as "agency associations") -- about 15% by number handling about 13% of the fruit in the Sunkist system -- are private corporations and partnerships, owning and operating packing houses for profit. Their relationship to the growers whose fruit they handle is defined not by a cooperative agreement, but by a marketing contract, i.e., these packing houses contract with each grower to handle his fruit for cost plus a fixed fee. It is the membership of these agency associations in the Sunkist system that gives rise to the issue presented here.The local associations, including these private packing houses, are members of "district exchanges," nonprofit membership corporations. The principal functions of the approximately three-score district exchanges are in the marketing of the fresh fruit of their member associations; they negotiate sales, arrange for shipment, and serve as conduits of communication between the local associations and Sunkist. Representatives of the district exchanges select the board of directors of Sunkist.Sunkist itself, since 1958, [Footnote 4] has two classes of "members": the district exchanges, whose principal membership Page 389 U. S. 388 function is to select the board of directors, and the local associations, which vote on all other matters and which have the proprietary ownership of Sunkist's assets. The corporate entity Sunkist Growers, Inc., owns the trade name "Sunkist" under which the fruit of its members is marketed. It has an extensive sales organization; employs marketing and traffic specialists, and performs many other services for its members through, for example, its research facilities.More particularly, Sunkist owns processing facilities for what is known as "product" fruit, i.e., fruit that for various reasons is not sold in the fresh fruit market, but rather is used for processed fruit products such as canned or concentrated juices.Sunkist controls approximately 70% of the oranges grown in California and Arizona, and approximately 67% of the product oranges. This control is manifested through various contractual agreements. For example, each grower in the cooperative local associations agrees that he will market all of his fruit through his association. Each grower who contracts with an agency association packing house appoints it as the marketing agent for all of his fruit. That agreement is generally for five shipping seasons, although it may be canceled at any time "by mutual consent" or on written notice by the grower during August of any year in which it is in force. An escape clause permits the grower to sell such fruit as may be "mutually agreed upon" between him and the packing house to others, if he can obtain a price higher, in the judgment of the packing house, than that which the grower would obtain through his agreement with it. Should the grower be so released from his agree ment, he is to pay to the packing house $2.50 per ton of fruit released.Each of the local associations, including the private packing house agency associations, contracts with its Page 389 U. S. 389 district exchange and with Sunkist Growers, Inc., to market all of its fruit -- product and fresh -- in the Sunkist system. Each association, under the Sunkist-District Exchange-Association Agreement, reserves the right to decide to what market it will ship and what price it is willing to receive for its fruit; however, Sunkist may decide to pool product fruit and fruit for export, in which event that fruit is handled solely in Sunkist's discretion. Sunkist also determines "the maximum amount of fresh fruit to be marketed currently," and allocates the "opportunity to ship equitably among Local Associations." Each local association agrees not to release any of its growers from the marketing contract without notifying its district exchange and Sunkist, and must obtain the approval of both if releases total more than 5% of the volume of the particular variety of fruit handled by the association. Further, each district exchange and local association agrees that "[a]ll prices, quotations and allowances shall be issued and distributed solely by Sunkist."Petitioner Case-Swayne manufactures single-strength orange juice and other blended orange juices. In its complaint, insofar as relevant to the issues here, petitioner charged that the Sunkist system was a conspiracy in restraint of trade in violation of § 1 of the Sherman Act, the effect of which was to limit sharply the supply of product citrus fruit available to petitioner during the period covered by the complaint.IISection 1 of the Capper-Volstead Act (see n 2, supra) privileges collective activity in processing and marketing on the part of "[p]ersons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers. . . ." 42 Stat. 388, 7 U.S.C. § 291. Despite that specific language, Sunkist Page 389 U. S. 390 argues that Congress, in enacting the measure, intended to give sanction to any organizational form by which the benefits of collective marketing inured to the grower, and that, because the agency packing houses, by charging cost plus a fixed fee [Footnote 5] for their services, do not participate directly in the gain or loss involved in the collective marketing of fruit through the Sunkist system, they are, in the Sunkist system, a privileged form of organization for the growers who contract with them. [Footnote 6] We think that argument misconceives the requirements of the Act and runs counter to the relevant legislative history.Congress enacted § 6 of the Clayton Act in response to the urgings of those who felt the Sherman Act's prohibition against combinations in restraint of trade might be applied to imperil the development of cooperative endeavors, Page 389 U. S. 391 principally unions. [Footnote 7] That section provided that the antitrust laws were not to be"construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit,"i.e., such organizations were not to be deemed "illegal combinations or conspiracies in restraint of trade. . . ." 38 Stat. 731, 15 U.S.C. § 17. From the standpoint of agricultural cooperatives, the principal defect in that exemption was that it applied only to nonstock organizations. The Capper-Volstead Act was intended to clarify the exemption for agricultural organizations and to extend it to cooperatives having capital stock. [Footnote 8]The reports on both H.R. 13931, the predecessor bill that failed of passage, and H.R. 2373, which became the Capper-Volstead Act, state:"Section 1 defines and limits the kind of associations to which the legislation applies. These limitations are aimed to exclude from the benefits of this legislation all but actual farmers and all associations not operated for the mutual help of their members as such producers."(Emphasis added.) H.R.Rep. No. 24, 67th Cong., 1st Sess., 1 (1921); H.R.Rep. No. 939, 66th Cong., 2d Sess., 1 (1920). That it was intended that only actual producers of agricultural products be covered by the legislation is demonstrated in the debates on the two bills, e.g., the following Page 389 U. S. 392 exchange involving Senator Kellogg, a principal sponsor of the measure:"Mr. CUMMINS. . . . Are the words 'as farmers, planters, ranchmen, dairymen, nut or fruit growers' used to exclude all others who may be engaged in the production of agricultural products, or are those words merely descriptive of the general subject?""Mr. KELLOGG. I think they are descriptive of the general subject. I think 'farmers' would have covered them all.""Mr. CUMMINS. I think the Senator does not exactly catch my point. Take the flouring mills of Minneapolis: they are engaged, in a broad sense, in the production of an agricultural product. The packers are engaged, in a broad sense, in the production of an agricultural product. The Senator does not intend by this bill to confer upon them the privileges which the bill grants, I assume?""Mr. KELLOGG. Certainly not, and I do not think a proper construction of the bill grants them any such privileges. The bill covers farmers, people who produce farm products of all kinds, and, out of precaution, the descriptive words were added.""Mr. TOWNSEND. They must be persons who produce these things.""Mr. KELLOGG. Yes; that has always been the understanding. [Footnote 9] "Page 389 U. S. 393To be sure, a principal concern of Congress was to prohibit the participation in the collectivity of the predatory middleman, the speculator who bought crops in the field and returned but a small percentage of their eventual worth to the grower. Sunkist focuses on the expression of that concern, urging that the agency associations are not such predatory middlemen. That focus is wide of the mark. We deal here with "special exceptions to a general legislative plan," Allen Bradley Co. v. Local No. 3, 325 U. S. 797, 325 U. S. 809 (1945) (§ 6 of the Clayton Act), and therefore we are not justified in expanding the Act's coverage, which otherwise appears quite plain. The Act states those whose collective activity is privileged under it; that enumeration is limited in quite specific terms to producers of agricultural products. [Footnote 10]Nor does the proviso in § 1 -- "[t]hat such associations are operated for the mutual benefit of the members thereof" -- broaden the earlier language. That provision, in conjunction with the other prerequisites for qualification under the Act -- either that each member be limited to one vote without regard to the capital he furnished or Page 389 U. S. 394 that dividends on capital be limited to 8%, and that dealings in products of nonmembers be limited -- was designed to insure that qualifying associations be truly organized and controlled by, and for, producers. In short, Congress was aware that even organizations of producers could serve a purpose other than the mutual obtaining of a fair return to their members, as producers, or be controlled by persons other than producers, and the proviso adds a measure of insurance that such organizations do not gain the Act's benefits. [Footnote 11] Moreover, virtually the only mention in the legislative history of possible participation in a Capper-Volstead cooperative by nonproducers occurs with respect to cooperatives issuing capital stock. [Footnote 12] Whatever may be the effect and significance of that recognition of the financial stake of nonproducers in an otherwise solely producer organization, their participation and role being narrowly restricted by the voting and dividend prerequisites of the Act, they are unpersuasive here. Capital participation by nonproducers -- and that is the extent to which the debate can fairly be read as contemplating their participation Page 389 U. S. 395 at all [Footnote 13] -- does not directly enlarge the market share already possessed by the producers themselves. The participation in Sunkist of the agency associations has precisely that effect.Sunkist suggests that "membership" of the agency associations has no "economic significance," relying on that provision of the Capper-Volstead Act permitting an association to deal in the products of nonmembers. The argument is that, if the agency packing houses were not members of the Sunkist system, Sunkist would still be free to handle their products. But this Court has held that the antitrust implications of the relationship between a cooperative association and others is governed by entirely different standards."The right of . . . agricultural producers thus to unite [under the Act] . . . cannot be deemed to authorize any combination or conspiracy with other persons in restraint of trade that these producers may see fit to devise."United States v. Borden Co., 308 U. S. 188, 308 U. S. 204-205 (1939); accord, Maryland & Virginia Milk Producers Assn. v. United States, 362 U. S. 458, 362 U. S. 466 467 (1960). Moreover, the agency associations participate in the control and policy making of Sunkist, even though they may be private profit-making operations. [Footnote 14] We think Congress did not intend to allow Page 389 U. S. 396 an organization with such nonproducer interest to avail itself of the Capper-Volstead exemption. [Footnote 15]The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtCase-Swayne Co., Inc. v. Sunkist Growers, Inc., 389 U.S. 384 (1967)Case-Swayne Co., Inc. v. Sunkist Growers, Inc.No. 66Argued October 18-19, 1967Decided December 18, 1967389 U.S. 384SyllabusPetitioner brought a treble damage Clayton Act suit for alleged violations by respondent of §§ 1 and 2 of the Sherman Act. The District Court granted a directed verdict for respondent. The Court of Appeals reversed as to the § 2 complaint, but affirmed the dismissal of the § 1 charge, holding that Sunkist qualified as a cooperative organization under the Capper-Volstead Act, and thus could not be held for an intra-organizational conspiracy to restrain trade. Section 1 of that Act privileges collective activity in processing and marketing for "persons engaged in the production of agricultural products as farmers, planters, ranchmen, dairymen, nut or fruit growers. . . ." Sunkist, which controls approximately 70% of the oranges grown in California and Arizona, and approximately 67% of the "product" oranges (used for processing), is composed of about 12,000 citrus growers, who are organized into 160 local associations, of which 80% are cooperative associations in which all members are growers. However, about 15% of the local associations, called "agency associations," are private corporations or partnerships owning and operating packing houses for profit. They have marketing contracts with growers to handle fruit for cost plus a fixed fee. All the local associations participate in the control and policy making of Sunkist.Held: Respondent is not entitled to assert the Capper-Volstead Act as a defense to the suit based on § 1 of the Sherman Act, as it was not the intention of Congress to allow an organization with such nonproducer interests to avail itself of the exemption provided by that Act. Pp. 389 U. S. 390-396.369 F.2d 449, reversed and remanded. Page 389 U. S. 385

1962_80

MR. JUSTICE WHITE delivered the opinion of the Court.This is still another chapter in the protracted problem of the time certain items are to be recognized as income for the purposes of the federal income tax. The Commissioner of Internal Revenue increased the 1952, 1953, and 1954 ordinary income of the taxpayers [Footnote 1] by including in gross income for those years amounts received or receivable under contracts executed during those years despite the fact that the contracts obligated taxpayers to render performance in subsequent periods. These increases produced tax deficiencies which the taxpayers unsuccessfully challenged in the Tax Court on the ground that the amounts could be deferred under their accounting method. On appeal, the Court of Appeals for the Eighth Circuit agreed with the taxpayers and reversed the Tax Court, 283 F.2d 234, the decision having been rendered prior to ours in American Automobile Ass'n v. United States, 367 U. S. 687. Following the American Automobile Association case, certiorari in this case was granted, the judgment of the lower court vacated, 367 U. S. 911, and the cause remanded for further consideration in light of American Automobile Association. 368 U.S. 873. In a per curiam opinion, the Court of Appeals held that, in view of American Automobile Association, the taxpayers' accounting method "does not, for income tax purposes, clearly reflect income," and affirmed the judgment for the Page 372 U. S. 130 Commissioner, 296 F.2d 721. We brought the case back once again to consider whether the lower court misapprehended the scope of American Automobile Association, 370 U.S. 902.Taxpayers, husband and wife, formed a partnership to operate ballroom dancing studios (collectively referred to as "studio") pursuant to Arthur Murray, Inc., franchise agreements. Dancing lessons were offered under either of two basic contracts. The cash plan contract required the student to pay the entire downpayment in cash at the time the contract was executed with the balance due in installments thereafter. The deferred payment contract required only a portion of the downpayment to be paid in cash. The remainder of the downpayment was due in stated installments, and the balance of the contract price was to be paid as designated in a negotiable note signed at the time the contract was executed.Both types of contracts provided that (1) the student should pay tuition for lessons in a certain amount, (2) the student should not be relieved of his obligation to pay the tuition, (3) no refunds would be made, and (4) the contract was noncancelable. [Footnote 2] The contracts prescribed a specific number of lesson hours ranging from five to 1,200 hours, and some contracts provided lifetime courses entitling the student additionally to two hours of lessons per month plus two parties a year for life. Although the contracts designated the period during which the lessons had to be taken, there was no schedule of specific dates, which were arranged from time to time as lessons were given. Page 372 U. S. 131Cash payments received directly from students and amounts received when the negotiable notes were discounted at the bank or fully paid [Footnote 3] were deposited in the studio's general bank account without segregation from its other funds. The franchise agreements required the studio to pay to Arthur Murray, Inc., on a weekly basis, 10% of these cash receipts as royalty and 5% of the receipts in escrow, the latter to continue until a $20,000 indemnity fund was accumulated. Similarly, sales commissions for lessons sold were paid at the time the sales receipts were deposited in the studio's general bank account.The studio, since its inception in 1946, has kept its books and reported income for tax purposes [Footnote 4] on an accrual system of accounting. In addition to the books, individual student record cards were maintained showing the number of hours taught and the number still remaining under the contract. The system, in substance, operated as follows. When a contract was entered into, a "deferred income" account was credited for the total contract price. At the close of each fiscal period, the student record cards were analyzed and the total number of taught hours was multiplied by the designated rate per hour of each contract. The resulting sum was deducted from the deferred income account and reported as earned income Page 372 U. S. 132 on the financial statements and the income tax return. In addition, if there had been no activity in a contract for over a year, or if a course were reduced in amount, an entry would be made canceling the untaught portion of the contract, removing that amount from the deferred income account, and recognizing gain to the extent that the deferred income exceeded the balance due on the contract, i.e., the amounts received in advance. The amounts representing lessons taught and the gains from cancellations constituted the chief sources of the partnership's gross income. [Footnote 5] The balance of the deferred income account would be carried forward into the next fiscal year, to be increased or decreased in accordance with the number of new contracts, lessons taught and cancellations recognized.Deductions were also reported on the accrual basis, except that the royalty payments and the sales commissions were deducted when paid, irrespective of the period in which the related receipts were taken into income. Three certified public accountants testified that, in their opinion, the accounting system employed truly reflected net income in accordance with commercial accrual accounting standards.The Commissioner included in gross income for the years in question not only advance payments received in Page 372 U. S. 133 cash, but the full face amounts of notes and contracts executed during the respective years. The Tax Court and the Court of Appeals upheld the Commissioner, but the United States in this Court has retreated somewhat, and does not now claim the includability in gross income of future payments which were not evidenced by a note and which were neither due by the terms of the contract nor matured by performance of the related services. [Footnote 6] The question remaining for decision, then, is this: was it proper for the Commissioner, exercising his discretion under § 41, [Footnote 7] 1939 Code, and § 446(b), [Footnote 8] 1954 Code, Page 372 U. S. 134 to reject the studio's accounting system as not clearly reflecting income, and to include as income in a particular year advance payments by way of cash, negotiable notes, and contract installments falling due but remaining unpaid during that year? We hold that it was, since we believe the problem is squarely controlled by American Automobile Association, 367 U. S. 687.The court there had occasion to consider the entire legislative background of the treatment of prepaid income. The retroactive repeal of § 452 of the 1954 Code, "the only law incontestably permitting the practice upon which [the taxpayer] depends," was regarded as reinstating longstanding administrative and lower court rulings that accounting systems deferring prepaid income could be rejected by the Commissioner."[T]he fact is that § 452, for the first time, specifically declared petitioner's system of accounting to be acceptable for income tax purposes, and overruled the longstanding position of the Commissioner and courts to the contrary. And the repeal of the section the following year, upon insistence by the Treasury that the proposed endorsement of such tax accounting would have a disastrous impact on the Government's revenue, was just as clearly a mandate from the Congress that petitioner's system was not acceptable for tax purposes."367 U.S. at 367 U. S. 695. Page 372 U. S. 135 Confirming that view was the step-by-step approach of Congress in granting the deferral privilege to only limited groups of taxpayers while exploring more deeply the ramifications of the entire problem.Plainly, the considerations expressed in American Automobile Association are apposite here. We need only add here that, since the American Automobile Association decision, a specific provision extending the deferral practice to certain membership corporations was enacted, § 456, 1954 Code, added by § 1, Act of July 26, 1961, 75 Stat. 222, continuing at least so far the congressional policy of treating this problem by precise provisions of narrow applicability. Consequently, as in the American Automobile Association case, we invoke the "long established policy of the Court in deferring, where possible, to congressional procedures in the tax field," and, as in that case, we cannot say that the Commissioner's rejection of the studio's deferral system was unsound.The American Automobile Association case rested upon an additional ground which is also controlling here. Relying upon Automobile Club of Michigan v. Commissioner, 353 U. S. 180, the Court rejected the taxpayer's system as artificial, since the advance payments related to services which were to be performed only upon customers' demands, without relation to fixed dates in the future. The system employed here suffers from that very same vice, for the studio sought to defer its cash receipts on the basis of contracts which did not provide for lessons on fixed dates after the taxable year, but left such dates to be arranged from time to time by the instructor and his student. Under the contracts, the student could arrange for some or all of the additional lessons or could simply allow their rights under the contracts to lapse. But even though the student did not demand the remaining lessons, the contracts permitted the studio to insist upon payment in accordance with the obligations undertaken, and to retain Page 372 U. S. 136 whatever prepayments were made without restriction as to use and without obligation of refund. At the end of each period, while the number of lessons taught had been meticulously reflected, the studio was uncertain whether none, some, or all of the remaining lessons would be rendered. Clearly, services were rendered solely on demand in the fashion of the American Automobile Association and Automobile Club of Michigan cases. [Footnote 9]Moreover, percentage royalties and sales commissions for lessons sold, which were paid as cash was received from students or from its note transactions with the bank, were deducted in the year paid, even though the related items of income had been deferred, at least in part, to later periods. In view of all these circumstances, we hold the studio's accrual system vulnerable under § 41 and § 446(b) with respect to its deferral of prepaid income. Consequently, the Commissioner was fully justified in including payments in cash or by negotiable note [Footnote 10] in gross income for the year in which such payments were received. If these payments are includible in the year of receipt because their allocation to a later year does not clearly reflect income, the contract installments are likewise includible in gross income, as the United States now Page 372 U. S. 137 claims, in the year they become due and payable. For an accrual basis taxpayer "it is the right to receive, and not the actual receipt, that determines the inclusion of the amount in gross income," Spring City Foundry Co. v. Commissioner, 292 U. S. 182, 292 U. S. 184; Commissioner v. Hansen, 360 U. S. 446, and here the right to receive these installments had become fixed at least at the time they were due and payable.We affirm the Court of Appeals insofar as that court held includible the amounts representing cash receipts, notes received and contract installments due and payable. Because of the Commissioner's concession, we reverse that part of the judgment which included amounts for which services had not yet been performed and which were not due and payable during the respective periods, and we remand the case with directions to return the case to the Tax Court for a redetermination of the proper income tax deficiencies now due in light of this opinion.It is so ordered

U.S. Supreme CourtSchlude v. Commissioner, 372 U.S. 128 (1963)Schlude v. Commissioner of Internal RevenueNo. 80Argued December 10, 1962Decided February 18, 1963372 U.S. 128SyllabusPetitioners, who operated dance studios, kept their books and made their income tax returns on a fiscal year accrual basis. They obtained from students contracts for dancing lessons over periods of years, to be paid for partly in cash and partly in installments, sometimes represented by negotiable notes which were discounted at banks. For the years 1952, 1953 and 1954, they reported as gross income only that portion of the advance payments received in cash and the amounts of notes and contracts executed during the respective years which corresponded with the number of hours taught. The balance was reserved for accrual in future years when additional lessons were taught, waived or forfeited.Held: it was proper for the Commissioner, in the exercise of his discretion under § 41 of the Internal Revenue Code of 1939 and § 446(b) of the Internal Revenue Code of 1954, to reject petitioners' accounting system as not clearly reflecting income, and to include as income in a particular year advance payments by way of cash, negotiable notes and contract installments falling due but remaining unpaid during that year. America Automobile Association v. United States, 367 U. S. 687. Pp. 372 U. S. 129-137.296 F.2d 721 affirmed in part, reversed in part, and remanded. Page 372 U. S. 129

1994_93-7927

photograph of the scene showed Kyles's car in the background. It would also have lent support to an argument that the police were irresponsible in relying on inconsistent statements made by Beanie. Pp.450-451.(d) Although not every item of the State's case would have been directly undercut if the foregoing Brady evidence had been disclosed, it is significant that the physical evidence remaining unscathed would, by the State's own admission, hardly have amounted to overwhelming proof that Kyles was the murderer. While the inconclusiveness of that evidence does not prove Kyles's innocence, and the jury might have found the unimpeached eyewitness testimony sufficient to convict, confidence that the verdict would have been the same cannot survive a recap of the suppressed evidence and its significance for the prosecution. Pp.451-454.5 F.3d 806, reversed and remanded.SOUTER, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a concurring opinion, in which GINSBURG and BREYER, JJ., joined, post, p. 454. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and KENNEDY and THOMAS, JJ., joined, post, p. 456.James S. Liebman argued the cause for petitioner. On the briefs were George W Healy III, Nicholas J. Trenticosta, Denise Leboeuf, and Gerard A. Rault, Jr.Jack Peebles argued the cause for respondent. With him on the brief was Harry F. Connick.JUSTICE SOUTER delivered the opinion of the Court. After his first trial in 1984 ended in a hung jury, petitioner Curtis Lee Kyles was tried again, convicted of first-degree murder, and sentenced to death. On habeas review, we follow the established rule that the state's obligation under Brady v. Maryland, 373 U. S. 83 (1963), to disclose evidence favorable to the defense, turns on the cumulative effect of all such evidence suppressed by the government, and we hold that the prosecutor remains responsible for gauging that effect regardless of any failure by the police to bring favorable evidence to the prosecutor's attention. Because the net effect of the evidence withheld by the State in this case raises422a reasonable probability that its disclosure would have produced a different result, Kyles is entitled to a new trial.IFollowing the mistrial when the jury was unable to reach a verdict, Kyles's subsequent conviction and sentence of death were affirmed on direct appeal. State v. Kyles, 513 So. 2d 265 (La. 1987), cert. denied, 486 U. S. 1027 (1988). On state collateral review, the trial court denied relief, but the Supreme Court of Louisiana remanded for an evidentiary hearing on Kyles's claims of newly discovered evidence. During this state-court proceeding, the defense was first able to present certain evidence, favorable to Kyles, that the State had failed to disclose before or during trial. The state trial court nevertheless denied relief, and the State Supreme Court denied Kyles's application for discretionary review. State ex rel. Kyles v. Butler, 566 So. 2d 386 (La. 1990).Kyles then filed a petition for habeas corpus in the United States District Court for the Eastern District of Louisiana, which denied the petition. The Court of Appeals for the Fifth Circuit affirmed by a divided vote. 5 F.3d 806 (1993). As we explain, infra, at 440-441, there is reason to question whether the Court of Appeals evaluated the significance of undisclosed evidence under the correct standard. Because "[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case," Burger v. Kemp, 483 U. S. 776, 785 (1987),1 we granted certiorari, 511 U. S. 1051 (1994), and now reverse.1 The dissent suggests that Burger is not authority for error correction in capital cases, at least when two previous reviewing courts have found no error. Post, at 457. We explain, infra, at 440-441, that this is not a case of simple error correction. As for the significance of prior review, Burger cautions that this Court should not "substitute speculation" for the "considered opinions" of two lower courts. 483 U. S., at 785. No one could disagree that "speculative" claims do not carry much weight against careful evidentiary review by two prior courts. There is nothing speculative, however, about Kyles's Brady claim.423II AThe record indicates that, at about 2:20 p.m. on Thursday, September 20, 1984, 60-year-old Dolores Dye left the Schwegmann Brothers' store (Schwegmann's) on Old Gentilly Road in New Orleans after doing some food shopping. As she put her grocery bags into the trunk of her red Ford LTD, a man accosted her and after a short struggle drew a revolver, fired into her left temple, and killed her. The gunman took Dye's keys and drove away in the LTD.New Orleans police took statements from six eyewitnesses,2 who offered various descriptions of the gunman. They agreed that he was a black man, and four of them said that he had braided hair. The witnesses differed significantly, however, in their descriptions of height, age, weight, build, and hair length. Two reported seeing a man of 17 or 18, while another described the gunman as looking as old as 28. One witness described him as 5'4" or 5'5", medium build, 140-150 pounds; another described the man as slim and close to six feet. One witness said he had a mustache; none of the others spoke of any facial hair at all. One witness said the murderer had shoulder-length hair; another described the hair as "short."Since the police believed the killer might have driven his own car to Schwegmann's and left it there when he drove off in Dye's LTD, they recorded the license numbers of the cars remaining in the parking lots around the store at 9:15 p.m. on the evening of the murder. Matching these numbers with registration records produced the names and addresses of the owners of the cars, with a notation of any owner's police2 The record reveals that statements were taken from Edward Williams and Lionel Plick, both waiting for a bus nearby; Isaac Smallwood, Willie Jones, and Henry Williams, all working in the Schwegmann's parking lot at the time of the murder; and Robert Territo, driving a truck waiting at a nearby traffic light at the moment of the shooting, who gave a statement to police on Friday, the day after the murder.424record. Despite this list and the eyewitness descriptions, the police had no lead to the gunman until the Saturday evening after the shooting.At 5:30 p.m., on September 22, a man identifying himself as James Joseph called the police and reported that on the day of the murder he had bought a red Thunderbird from a friend named Curtis, whom he later identified as petitioner, Curtis Kyles. He said that he had subsequently read about Dye's murder in the newspapers and feared that the car he purchased was the victim's. He agreed to meet with the police.A few hours later, the informant met New Orleans Detective John Miller, who was wired with a hidden body microphone, through which the ensuing conversation was recorded. See App. 221-257 (transcript). The informant now said his name was Joseph Banks and that he was called Beanie. His actual name was Joseph Wallace.3His story, as well as his name, had changed since his earlier call. In place of his original account of buying a Thunderbird from Kyles on Thursday, Beanie told Miller that he had not seen Kyles at all on Thursday, id., at 249250, and had bought a red LTD the previous day, Friday, id., at 221-222, 225. Beanie led Miller to the parking lot of a nearby bar, where he had left the red LTD, later identified as Dye's.Beanie told Miller that he lived with Kyles's brother-in-law (later identified as Johnny Burns),4 whom Beanie repeatedly called his "partner." Id., at 221. Beanie described Kyles as slim, about 6-feet tall, 24 or 25 years old, with a "bush" hairstyle. Id., at 226, 252. When asked if Kyles ever wore3 Because the informant had so many aliases, we will follow the convention of the court below and refer to him throughout this opinion as Beanie.4 Johnny Burns is the brother of a woman known as Pinky Burns. A number of trial witnesses referred to the relationship between Kyles and Pinky Burns as a common-law marriage (Louisiana's civil law notwithstanding). Kyles is the father of several of Pinky Burns's children.425his hair in plaits, Beanie said that he did but that he "had a bush" when Beanie bought the car. Id., at 249.During the conversation, Beanie repeatedly expressed concern that he might himself be a suspect in the murder. He explained that he had been seen driving Dye's car on Friday evening in the French Quarter, admitted that he had changed its license plates, and worried that he "could have been charged" with the murder on the basis of his possession of the LTD. Id., at 231, 246, 250. He asked if he would be put in jail. Id., at 235, 246. Miller acknowledged that Beanie's possession of the car would have looked suspicious, id., at 247, but reassured him that he "didn't do anything wrong," id., at 235.Beanie seemed eager to cast suspicion on Kyles, who allegedly made his living by "robbing people," and had tried to kill Beanie at some prior time. Id., at 228,245,251. Beanie said that Kyles regularly carried two pistols, a .38 and a .32, and that if the police could "set him up good," they could "get that same gun" used to kill Dye. Id., at 228-229. Beanie rode with Miller and Miller's supervisor, Sgt. James Eaton, in an unmarked squad car to Desire Street, where he pointed out the building containing Kyles's apartment. Id., at 244-246.Beanie told the officers that after he bought the car, he and his "partner" (Burns) drove Kyles to Schwegmann's about 9 p.m. on Friday evening to pick up Kyles's car, described as an orange four-door Ford.5 Id., at 221, 223, 231-232, 242. When asked where Kyles's car had been parked, Beanie replied that it had been "[o]n the same side [of the lot] where the woman was killed at." Id., at 231. The officers later drove Beanie to Schwegmann's, where he indicated the space where he claimed Kyles's car had been parked. Beanie went on to say that when he and Burns had brought Kyles to pick5 According to photographs later introduced at trial, Kyles's car was actually a Mercury and, according to trial testimony, a two-door model. Tr. 210 (Dec. 7, 1984).426up the car, Kyles had gone to some nearby bushes to retrieve a brown purse, id., at 253-255, which Kyles subsequently hid in a wardrobe at his apartment. Beanie said that Kyles had "a lot of groceries" in Schwegmann's bags and a new baby's potty "in the car." Id., at 254-255. Beanie told Eaton that Kyles's garbage would go out the next day and that if Kyles was "smart" he would "put [the purse] in [the] garbage." Id., at 257. Beanie made it clear that he expected some reward for his help, saying at one point that he was not "doing all of this for nothing." Id., at 246. The police repeatedly assured Beanie that he would not lose the $400 he paid for the car. Id., at 243,246.After the visit to Schwegmann's, Eaton and Miller took Beanie to a police station where Miller interviewed him again on the record, which was transcribed and signed by Beanie, using his alias "Joseph Banks." See id., at 214-220. This statement, Beanie's third (the telephone call being the first, then the recorded conversation), repeats some of the essentials of the second one: that Beanie had purchased a red Ford LTD from Kyles for $400 on Friday evening; that Kyles had his hair "combed out" at the time of the sale; and that Kyles carried a .32 and a .38 with him "all the time."Portions of the third statement, however, embellished or contradicted Beanie's preceding story and were even internally inconsistent. Beanie reported that after the sale, he and Kyles unloaded Schwegmann's grocery bags from the trunk and back seat of the LTD and placed them in Kyles's own car. Beanie said that Kyles took a brown purse from the front seat of the LTD and that they then drove in separate cars to Kyles's apartment, where they unloaded the groceries. Id., at 216-217. Beanie also claimed that, a few hours later, he and his "partner" Burns went with Kyles to Schwegmann's, where they recovered Kyles's car and a "big brown pocket book" from "next to a building." Id., at 218. Beanie did not explain how Kyles could have picked up his car and recovered the purse at Schwegmann's, after Beanie427had seen Kyles with both just a few hours earlier. The police neither noted the inconsistencies nor questioned Beanie about them.Although the police did not thereafter put Kyles under surveillance, Tr. 94 (Dec. 6, 1984), they learned about events at his apartment from Beanie, who went there twice on Sunday. According to a fourth statement by Beanie, this one given to the chief prosecutor in November (between the first and second trials), he first went to the apartment about 2 p.m., after a telephone conversation with a police officer who asked whether Kyles had the gun that was used to kill Dye. Beanie stayed in Kyles's apartment until about 5 p.m., when he left to call Detective John Miller. Then he returned about 7 p.m. and stayed until about 9:30 p.m., when he left to meet Miller, who also asked about the gun. According to this fourth statement, Beanie "rode around" with Miller until 3 a.m. on Monday, September 24. Sometime during those same early morning hours, detectives were sent at Sgt. Eaton's behest to pick up the rubbish outside Kyles's building. As Sgt. Eaton wrote in an interoffice memorandum, he had "reason to believe the victims [sic] personal papers and the Schwegmann's bags will be in the trash." Record, Defendant's Exh. 17.At 10:40 a.m., Kyles was arrested as he left the apartment, which was then searched under a warrant. Behind the kitchen stove, the police found a .32-caliber revolver containing five live rounds and one spent cartridge. Ballistics tests later showed that this pistol was used to murder Dye. In a wardrobe in a hallway leading to the kitchen, the officers found a homemade shoulder holster that fit the murder weapon. In a bedroom dresser drawer, they discovered two boxes of ammunition, one containing several .32-caliber rounds of the same brand as those found in the pistol. Back in the kitchen, various cans of cat and dog food, some of them of the brands Dye typically purchased, were found in Schwegmann's sacks. No other groceries were identified as428possibly being Dye's, and no potty was found. Later that afternoon at the police station, police opened the rubbish bags and found the victim's purse, identification, and other personal belongings wrapped in a Schwegmann's sack.The gun, the LTD, the purse, and the cans of pet food were dusted for fingerprints. The gun had been wiped clean. Several prints were found on the purse and on the LTD, but none was identified as Kyles's. Dye's prints were not found on any of the cans of pet food. Kyles's prints were found, however, on a small piece of paper taken from the front passenger-side floorboard of the LTD. The crime laboratory recorded the paper as a Schwegmann's sales slip, but without noting what had been printed on it, which was obliterated in the chemical process of lifting the fingerprints. A second Schwegmann's receipt was found in the trunk of the LTD, but Kyles's prints were not found on it. Beanie's fingerprints were not compared to any of the fingerprints found. Tr. 97 (Dec. 6, 1984).The lead detective on the case, John Dillman, put together a photo lineup that included a photograph of Kyles (but not of Beanie) and showed the array to five of the six eyewitnesses who had given statements. Three of them picked the photograph of Kyles; the other two could not confidently identify Kyles as Dye's assailant.BKyles was indicted for first-degree murder. Before trial, his counsel filed a lengthy motion for disclosure by the State of any exculpatory or impeachment evidence. The prosecution responded that there was "no exculpatory evidence of any nature," despite the government's knowledge of the following evidentiary items: (1) the six contemporaneous eyewitness statements taken by police following the murder; (2) records of Beanie's initial call to the police; (3) the tape recording of the Saturday conversation between Beanie and officers Eaton and Miller; (4) the typed and signed statement429given by Beanie on Sunday morning; (5) the computer printout of license numbers of cars parked at Schwegmann's on the night of the murder, which did not list the number of Kyles's car; (6) the internal police memorandum calling for the seizure of the rubbish after Beanie had suggested that the purse might be found there; and (7) evidence linking Beanie to other crimes at Schwegmann's and to the unrelated murder of one Patricia Leidenheimer, committed in January before the Dye murder.At the first trial, in November, the heart of the State's case was eyewitness testimony from four people who were at the scene of the crime (three of whom had previously picked Kyles from the photo lineup). Kyles maintained his innocence, offered supporting witnesses, and supplied an alibi that he had been picking up his children from school at the time of the murder. The theory of the defense was that Kyles had been framed by Beanie, who had planted evidence in Kyles's apartment and his rubbish for the purposes of shifting suspicion away from himself, removing an impediment to romance with Pinky Burns, and obtaining reward money. Beanie did not testify as a witness for either the defense or the prosecution.Because the State withheld evidence, its case was much stronger, and the defense case much weaker, than the full facts would have suggested. Even so, after four hours of deliberation, the jury became deadlocked on the issue of guilt, and a mistrial was declared.After the mistrial, the chief trial prosecutor, Cliff Strider, interviewed Beanie. See App. 258-262 (notes of interview). Strider's notes show that Beanie again changed important elements of his story. He said that he went with Kyles to retrieve Kyles's car from the Schwegmann's lot on Thursday, the day of the murder, at some time between 5 and 7:30 p.m., not on Friday, at 9 p.m., as he had said in his second and third statements. (Indeed, in his second statement, Beanie said that he had not seen Kyles at all on Thursday. Id., at430249-250.) He also said, for the first time, that when they had picked up the car they were accompanied not only by Johnny Burns but also by Kevin Black, who had testified for the defense at the first trial. Beanie now claimed that after getting Kyles's car they went to Black's house, retrieved a number of bags of groceries, a child's potty, and a brown purse, all of which they took to Kyles's apartment. Beanie also stated that on the Sunday after the murder he had been at Kyles's apartment two separate times. Notwithstanding the many inconsistencies and variations among Beanie's statements, neither Strider's notes nor any of the other notes and transcripts were given to the defense.In December 1984, Kyles was tried a second time. Again, the heart of the State's case was the testimony of four eyewitnesses who positively identified Kyles in front of the jury. The prosecution also offered a blown-up photograph taken at the crime scene soon after the murder, on the basis of which the prosecutors argued that a seemingly two-toned car in the background of the photograph was Kyles's. They repeatedly suggested during cross-examination of defense witnesses that Kyles had left his own car at Schwegmann's on the day of the murder and had retrieved it later, a theory for which they offered no evidence beyond the blown-up photograph. Once again, Beanie did not testify.As in the first trial, the defense contended that the eyewitnesses were mistaken. Kyles's counsel called several individuals, including Kevin Black, who testified to seeing Beanie, with his hair in plaits, driving a red car similar to the victim's about an hour after the killing. Tr. 209 (Dec. 7, 1984). Another witness testified that Beanie, with his hair in braids, had tried to sell him the car on Thursday evening, shortly after the murder. Id., at 234-235. Another witness testified that Beanie, with his hair in a "Jheri curl," had attempted to sell him the car on Friday. Id., at 249-251. One witness, Beanie's "partner," Burns, testified that he had seen Beanie on Sunday at Kyles's apartment, stooping down near431the stove where the gun was eventually found, and the defense presented testimony that Beanie was romantically interested in Pinky Burns. To explain the pet food found in Kyles's apartment, there was testimony that Kyles's family kept a dog and cat and often fed stray animals in the neighborhood.Finally, Kyles again took the stand. Denying any involvement in the shooting, he explained his fingerprints on the cash register receipt found in Dye's car by saying that Beanie had picked him up in a red car on Friday, September 21, and had taken him to Schwegmann's, where he purchased transmission fluid and a pack of cigarettes. He suggested that the receipt may have fallen from the bag when he removed the cigarettes.On rebuttal, the prosecutor had Beanie brought into the courtroom. All of the testifying eyewitnesses, after viewing Beanie standing next to Kyles, reaffirmed their previous identifications of Kyles as the murderer. Kyles was convicted of first-degree murder and sentenced to death. Beanie received a total of $1,600 in reward money. See Tr. of Hearing on Post-Conviction Relief 19-20 (Feb. 24, 1989); id., at 114 (Feb. 20, 1989).Following direct appeal, it was revealed in the course of state collateral review that the State had failed to disclose evidence favorable to the defense. After exhausting state remedies, Kyles sought relief on federal habeas, claiming, among other things, that the evidence withheld was material to his defense and that his conviction was thus obtained in violation of Brady. Although the United States District Court denied relief and the Fifth Circuit affirmed,6 Judge6 Pending appeal, Kyles filed a motion under Federal Rules of Civil Procedure 60(b)(2) and (6) to reopen the District Court judgment. In that motion, he charged that one of the eyewitnesses who testified against him at trial committed perjury. In the witness's accompanying affidavit, Darlene Kersh (formerly Cahill), the only such witness who had not given a contemporaneous statement, swears that she told the prosecutors and432King dissented, writing that "[f]or the first time in my fourteen years on this court ... I have serious reservations about whether the State has sentenced to death the right man." 5 F. 3d, at 820.IIIThe prosecution's affirmative duty to disclose evidence favorable to a defendant can trace its origins to early 20thcentury strictures against misrepresentation and is of course most prominently associated with this Court's decision in Brady v. Maryland, 373 U. S. 83 (1963). See id., at 86 (relying on Mooney v. Holohan, 294 U. S. 103, 112 (1935), and Pyle v. Kansas, 317 U. S. 213, 215-216 (1942)). Brady held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U. S., at 87; see Moore v. Illinois, 408 U. S. 786, 794-795detectives she did not have an opportunity to view the assailant's face and could not identify him. Nevertheless, Kersh identified Kyles untruthfully, she says, after being "told by some people ... [who] I think ... were district attorneys and police, that the murderer would be the guy seated at the table with the attorney and that that was the one I should identify as the murderer. One of the people there was at the D. A.'s table at the trial. To the best of my knowledge there was only one black man sitting at the counsel table and I pointed him out as the one I had seen shoot the lady." Kersh claims to have agreed to the State's wishes only after the police and district attorneys assured her that "all the other evidence pointed to [Kyles] as the killer." Mfidavit of Darlene Kersh 5, 7.The District Court denied the motion as an abuse of the writ, although its order was vacated by the Court of Appeals for the Fifth Circuit with instructions to deny the motion on the ground that a petitioner may not use a Rule 60(b) motion to raise constitutional claims not included in the original habeas petition. That ruling is not before us. After denial of his Rule 60(b) motion, Kyles again sought state collateral review on the basis of Kersh's affidavit. The Supreme Court of Louisiana granted discretionary review and ordered the trial court to conduct an evidentiary hearing; all state proceedings are currently stayed pending our review of Kyles's federal habeas petition.433(1972). In United States v. Agurs, 427 U. S. 97 (1976), however, it became clear that a defendant's failure to request favorable evidence did not leave the Government free of all obligation. There, the Court distinguished three situations in which a Brady claim might arise: first, where previously undisclosed evidence revealed that the prosecution introduced trial testimony that it knew or should have known was perjured, 427 U. S., at 103-104;7 second, where the Government failed to accede to a defense request for disclosure of some specific kind of exculpatory evidence, id., at 104-107; and third, where the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way. The Court found a duty on the part of the Government even in this last situation, though only when suppression of the evidence would be "of sufficient significance to result in the denial of the defendant's right to a fair trial." Id., at 108.In the third prominent case on the way to current Brady law, United States v. Bagley, 473 U. S. 667 (1985), the Court disavowed any difference between exculpatory and impeachment evidence for Brady purposes, and it abandoned the distinction between the second and third Agurs circumstances, i. e., the "specific-request" and "general- or no-request" situations. Bagley held that regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been differ-7 The Court noted that "a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Agurs, 427 U. S., at 103 (footnote omitted). As the ruling pertaining to Kersh's affidavit is not before us, we do not consider the question whether Kyles's conviction was obtained by the knowing use of perjured testimony and our decision today does not address any claim under the first Agurs category. See n. 6, supra.434ent." 473 U. S., at 682 (opinion of Blackmun, J.); id., at 685 (White, J., concurring in part and concurring in judgment).Four aspects of materiality under Bagley bear emphasis.Although the constitutional duty is triggered by the potential impact of favorable but undisclosed evidence, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal (whether based on the presence of reasonable doubt or acceptance of an explanation for the crime that does not inculpate the defendant). Id., at 682 (opinion of Blackmun, J.) (adopting formulation announced in Strickland v. Washington, 466 U. S. 668, 694 (1984)); Bagley, supra, at 685 (White, J., concurring in part and concurring in judgment) (same); see 473 U. S., at 680 (opinion of Blackmun, J.) (Agurs "rejected a standard that would require the defendant to demonstrate that the evidence if disclosed probably would have resulted in acquittal"); cf. Strickland, supra, at 693 ("[W]e believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case"); Nix v. Whiteside, 475 U. S. 157, 175 (1986) ("[A] defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"). Bagley's touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the government's evidentiary suppression "undermines confidence in the outcome of the trial." Bagley, 473 U. S., at 678.The second aspect of Bagley materiality bearing emphasis here is that it is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the incul-435patory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.8Third, we note that, contrary to the assumption made by the Court of Appeals, 5 F. 3d, at 818, once a reviewing court applying Bagley has found constitutional error there is no need for further harmless-error review. Assuming, arguendo, that a harmless-error enquiry were to apply, a Bagley error could not be treated as harmless, since "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different," 473 U. S., at 682 (opinion of Blackmun, J.); id., at 685 (White, J., concurring in part and concurring in judgment), necessarily entails the conclusion that the suppression must have had "'substantial and injurious effect or influence in determining the jury's verdict,'" Brecht v. Abrahamson, 507 U. S. 619, 623 (1993), quoting Kotteakos v. United States, 328 U. S. 750, 776 (1946). This is amply confirmed by the development of the respective governing standards. Although8 This rule is clear, and none of the Brady cases has ever suggested that sufficiency of evidence (or insufficiency) is the touchstone. And yet the dissent appears to assume that Kyles must lose because there would still have been adequate evidence to convict even if the favorable evidence had been disclosed. See post, at 463 (possibility that Beanie planted evidence "is perfectly consistent" with Kyles's guilt), ibid. ("[T]he jury could well have believed [portions of the defense theory] and yet have condemned petitioner because it could not believe that all four of the eyewitnesses were similarly mistaken"), post, at 468 (the Brady evidence would have left two prosecution witnesses "totally untouched"), 469 (Brady evidence "can be logically separated from the incriminating evidence that would have remained unaffected").436Chapman v. California, 386 U. S. 18, 24 (1967), held that a conviction tainted by constitutional error must be set aside unless the error complained of "was harmless beyond a reasonable doubt," we held in Brecht that the standard of harmlessness generally to be applied in habeas cases is the Kotteak os formulation (previously applicable only in reviewing nonconstitutional errors on direct appeal), Brecht, supra, at 622-623. Under Kotteakos a conviction may be set aside only if the error "had substantial and injurious effect or influence in determining the jury's verdict." Kotteakos, supra, at 776. Agurs, however, had previously rejected Kotteakos as the standard governing constitutional disclosure claims, reasoning that "the constitutional standard of materiality must impose a higher burden on the defendant." Agurs, 427 U. S., at 112. Agurs thus opted for its formulation of materiality, later adopted as the test for prejudice in Strickland, only after expressly noting that this standard would recognize reversible constitutional error only when the harm to the defendant was greater than the harm sufficient for reversal under Kotteakos. In sum, once there has been Bagley error as claimed in this case, it cannot subsequently be found harmless under Brecht. 9The fourth and final aspect of Bagley materiality to be stressed here is its definition in terms of suppressed evidence considered collectively, not item by item.lO As Justice Blackmun emphasized in the portion of his opinion written for the Court, the Constitution is not violated every time the9 See also Hill v. Lockhart, 28 F.3d 832, 839 (CA8 1994) ("[I]t is unnecessary to add a separate layer of harmless-error analysis to an evaluation of whether a petitioner in a habeas case has presented a constitutionally significant claim for ineffective assistance of counsel").10 The dissent accuses us of overlooking this point and of assuming that the favorable significance of a given item of undisclosed evidence is enough to demonstrate a Brady violation. We evaluate the tendency and force of the undisclosed evidence item by item; there is no other way. We evaluate its cumulative effect for purposes of materiality separately and at the end of the discussion, at Part IV -D, infra.437government fails or chooses not to disclose evidence that might prove helpful to the defense. 473 U. S., at 675, and n. 7. We have never held that the Constitution demands an open file policy (however such a policy might work out in practice), and the rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate. See ABA Standards for Criminal Justice, Prosecution Function and Defense Function 3-3.11(a) (3d ed. 1993) ("A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused"); ABA Model Rule of Professional Conduct 3.8(d) (1984) ("The prosecutor in a criminal case shall ... make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense").While the definition of Bagley materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding burden. On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of "reasonable probability" is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith438or bad faith, see Brady, 373 U. S., at 87), the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.The State of Louisiana would prefer an even more lenient rule. It pleads that some of the favorable evidence in issue here was not disclosed even to the prosecutor until after trial, Brief for Respondent 25, 27, 30, 31, and it suggested below that it should not be held accountable under Bagley and Brady for evidence known only to police investigators and not to the prosecutor.ll To accommodate the State in this manner would, however, amount to a serious change of course from the Brady line of cases. In the State's favor it may be said that no one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that "procedures and regulations can be established to carry [the prosecutor's] burden and to insure communication of all relevant information on each case to every lawyer who deals with it." Giglio v. United States, 405 U. S. 150, 154 (1972). Since, then, the prosecutor has the means to discharge the government's Brady responsibility if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure fair trials.Short of doing that, we were asked at oral argument to raise the threshold of materiality because the Bagley standard "makes it difficult ... to know" from the "perspective [of the prosecutor at] trial ... exactly what might become important later on." Tr. of Oral Arg. 33. The State asks for "a certain amount of leeway in making a judgment call" as to the disclosure of any given piece of evidence. Ibid.11 The State's counsel retreated from this suggestion at oral argument, conceding that the State is "held to a disclosure standard based on what all State officers at the time knew." Tr. of Oral Arg. 40.439Uncertainty about the degree of further "leeway" that might satisfy the State's request for a "certain amount" of it is the least of the reasons to deny the request. At bottom, what the State fails to recognize is that, with or without more leeway, the prosecution cannot be subject to any disclosure obligation without at some point having the responsibility to determine when it must act. Indeed, even if due process were thought to be violated by every failure to disclose an item of exculpatory or impeachment evidence (leaving harmless error as the government's only fallback), the prosecutor would still be forced to make judgment calls about what would count as favorable evidence, owing to the very fact that the character of a piece of evidence as favorable will often turn on the context of the existing or potential evidentiary record. Since the prosecutor would have to exercise some judgment even if the State were subject to this most stringent disclosure obligation, it is hard to find merit in the State's complaint over the responsibility for judgment under the existing system, which does not tax the prosecutor with error for any failure to disclose, absent a further showing of materiality. Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial's outcome as to destroy confidence in its result.This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. See Agurs, 427 U. S., at 108 ("[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure"). This is as it should be. Such disclosure will serve to justify trust in the prosecutor as "the representative ... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U. S. 78, 88 (1935).440And it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations. See Rose v. Clark, 478 U. S. 570, 577-578 (1986); Estes v. Texas, 381 U. S. 532, 540 (1965); United States v. Leon, 468 U. S. 897, 900-901 (1984) (recognizing general goal of establishing "procedures under which criminal defendants are 'acquitted or convicted on the basis of all the evidence which exposes the truth'" (quoting Alderman v. United States, 394 U. S. 165, 175 (1969)). The prudence of the careful prosecutor should not therefore be discouraged.There is room to debate whether the two judges in the majority in the Court of Appeals made an assessment of the cumulative effect of the evidence. Although the majority's Brady discussion concludes with the statement that the court was not persuaded of the reasonable probability that Kyles would have obtained a favorable verdict if the jury had been "exposed to any or all of the undisclosed materials," 5 F. 3d, at 817, the opinion also contains repeated references dismissing particular items of evidence as immaterial and so suggesting that cumulative materiality was not the touchstone. See, e. g., id., at 812 ("We do not agree that this statement made the transcript material and so mandated disclosure .... Beanie's statement ... is itself not decisive"), 814 ("The nondisclosure of this much of the transcript was insignificant"), 815 ("Kyles has not shown on this basis that the three statements were material"), 815 ("In light of the entire record ... we cannot conclude that [police reports relating to discovery of the purse in the trash] would, in reasonable probability, have moved the jury to embrace the theory it otherwise discounted"), 816 ("We are not persuaded that these notes [relating to discovery of the gun] were material"), 816 ("[WJe are not persuaded that [the printout of the license plate numbers] would, in reasonable probability, have induced reasonable doubt where the jury did not find it .... the rebuttal of the photograph would have made no differ-441ence"). The result reached by the Fifth Circuit majority is compatible with a series of independent materiality evaluations, rather than the cumulative evaluation required by Bagley, as the ensuing discussion will show.IVIn this case, disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable.AAs the District Court put it, "the essence of the State's case" was the testimony of eyewitnesses, who identified Kyles as Dye's killer. 5 F. 3d, at 853 (Appendix A). Disclosure of their statements would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense. To begin with, the value of two of those witnesses would have been substantially reduced or destroyed.The State rated Henry Williams as its best witness, who testified that he had seen the struggle and the actual shooting by Kyles. The jury would have found it helpful to probe this conclusion in the light of Williams's contemporaneous statement, in which he told the police that the assailant was "a black male, about 19 or 20 years old, about 5'4" or 5'5", 140 to 150 pounds, medium build" and that "his hair looked like it was platted." App. 197. If cross-examined on this description, Williams would have had trouble explaining how he could have described Kyles, 6-feet tall and thin, as a man more than half a foot shorter with a medium build.12 Indeed, since Beanie was 22 years old, 5'5" tall, and 159 pounds,12 The record makes numerous references to Kyles being approximately six feet tall and slender; photographs in the record tend to confirm these descriptions. The description of Beanie in the text comes from his police file. Record photographs of Beanie also depict a man possessing a medium build.442the defense would have had a compelling argument that Williams's description pointed to Beanie but not to Kyles.13The trial testimony of a second eyewitness, Isaac Smallwood, was equally damning to Kyles. He testified that Kyles was the assailant, and that he saw him struggle with Dye. He said he saw Kyles take a ".32, a small black gun" out of his right pocket, shoot Dye in the head, and drive off in her LTD. When the prosecutor asked him whether he actually saw Kyles shoot Dye, Smallwood answered "Yeah." Tr. 41-48 (Dec. 6, 1984).Smallwood's statement taken at the parking lot, however, was vastly different. Immediately after the crime, Small-13 The defense could have further underscored the possibility that Beanie was Dye's killer through cross-examination of the police on their failure to direct any investigation against Beanie. If the police had disclosed Beanie's statements, they would have been forced to admit that their informant Beanie described Kyles as generally wearing his hair in a "bush" style (and so wearing it when he sold the car to Beanie), whereas Beanie wore his in plaits. There was a considerable amount of such Brady evidence on which the defense could have attacked the investigation as shoddy. The police failed to disclose that Beanie had charges pending against him for a theft at the same Schwegmann's store and was a primary suspect in the January 1984 murder of Patricia Leidenheimer, who, like Dye, was an older woman shot once in the head during an armed robbery. (Even though Beanie was a primary suspect in the Leidenheimer murder as early as September, he was not interviewed by the police about it until after Kyles's second trial in December. Beanie confessed his involvement in the murder, but was never charged in connection with it.) These were additional reasons for Beanie to ingratiate himself with the police and for the police to treat him with a suspicion they did not show. Indeed, notwithstanding JUSTICE SCALIA'S suggestion that Beanie would have been "stupid" to inject himself into the investigation, post, at 461, the Brady evidence would have revealed at least two motives for Beanie to come forward: he was interested in reward money and he was worried that he was already a suspect in Dye's murder (indeed, he had been seen driving the victim's car, which had been the subject of newspaper and television reports). See supra, at 425-426. For a discussion of further Brady evidence to attack the investigation, see especially Part IV-B, infra.443wood claimed that he had not seen the actual murder and had not seen the assailant outside the vehicle. "I heard a lound [sic] pop," he said. "When I looked around I saw a lady laying on the ground, and there was a red car coming toward me." App. 189. Smallwood said that he got a look at the culprit, a black teenage male with a mustache and shoulder-length braided hair, as the victim's red Thunderbird passed where he was standing. When a police investigator specifically asked him whether he had seen the assailant outside the car, Smallwood answered that he had not; the gunman "was already in the car and coming toward me." Id., at 188-190.A jury would reasonably have been troubled by the adjustments to Smallwood's original story by the time of the second trial. The struggle and shooting, which earlier he had not seen, he was able to describe with such detailed clarity as to identify the murder weapon as a small black .32-caliber pistol, which, of course, was the type of weapon used. His description of the victim's car had gone from a "Thunderbird" to an "LTD"; and he saw fit to say nothing about the assailant's shoulder-length hair and moustache, details noted by no other eyewitness. These developments would have fueled a withering cross-examination, destroying confidence in Smallwood's story and raising a substantial implication that the prosecutor had coached him to give it.1414 The implication of coaching would have been complemented by the fact that Smallwood's testimony at the second trial was much more precise and incriminating than his testimony at the first, which produced a hung jury. At the first trial, Smallwood testified that he looked around only after he heard something go off, that Dye was already on the ground, and that he "watched the guy get in the car." Tr. 50-51 (Nov. 26, 1984). When asked to describe the killer, Smallwood stated that he "just got a glance of him from the side" and "couldn't even get a look in the face." Id., at 52, 54.The State contends that this change actually cuts in its favor under Brady, since it provided Kyles's defense with grounds for impeachment444Since the evolution over time of a given eyewitness's description can be fatal to its reliability, cf. Manson v. Brathwaite, 432 U. S. 98, 114 (1977) (reliability depends in part on the accuracy of prior description); Neil v. Biggers, 409 U. S. 188, 199 (1972) (reliability of identification following impermissibly suggestive lineup depends in part on accuracy of witness's prior description), the Smallwood and Williams identifications would have been severely undermined by use of their suppressed statements. The likely damage is best understood by taking the word of the prosecutor, who contended during closing arguments that Smallwood and Williams were the State's two best witnesses. See Tr. of Closing Arg. 49 (Dec. 7, 1984) (After discussing Territo's and Kersh's testimony: "Isaac Smallwood, have you ever seen a better witness[?] ... What's better than that is Henry Williams .... Henry Williams was the closest of them allwithout any need to disclose Smallwood's statement. Brief for Respondent 17-18. This is true, but not true enough; inconsistencies between the two bodies of trial testimony provided opportunities for chipping away on cross-examination but not for the assault that was warranted. While Smallwood's testimony at the first trial was similar to his contemporaneous account in some respects (for example, he said he looked around only after he heard the gunshot and that Dye was already on the ground), it differed in one of the most important: Smallwood's version at the first trial already included his observation of the gunman outside the car. Defense counsel was not, therefore, clearly put on notice that Smallwood's capacity to identify the killer's body type was open to serious attack; even less was he informed that Smallwood had answered "no" when asked if he had seen the killer outside the car. If Smallwood had in fact seen the gunman only after the assailant had entered Dye's car, as he said in his original statement, it would have been difficult if not impossible for him to notice two key characteristics distinguishing Kyles from Beanie, their heights and builds. Moreover, in the first trial, Smallwood specifically stated that the killer's hair was "kind of like short ... knotted up on his head." Tr. 60 (Nov. 26, 1984). This description was not inconsistent with his testimony at the second trial but directly contradicted his statement at the scene of the murder that the killer had shoulder-length hair. The dissent says that Smallwood's testimony would have been "barely affected" by the expected impeachment, post, at 468; that would have been a brave jury argument.445right here"). Nor, of course, would the harm to the State's case on identity have been confined to their testimony alone. The fact that neither Williams nor Smallwood could have provided a consistent eyewitness description pointing to Kyles would have undercut the prosecution all the more because the remaining eyewitnesses called to testify (Territo and Kersh) had their best views of the gunman only as he fled the scene with his body partly concealed in Dye's car. And even aside from such important details, the effective impeachment of one eyewitness can call for a new trial even though the attack does not extend directly to others, as we have said before. See Agurs, 427 U. S., at 112-113, n. 21.BDamage to the prosecution's case would not have been confined to evidence of the eyewitnesses, for Beanie's various statements would have raised opportunities to attack not only the probative value of crucial physical evidence and the circumstances in which it was found, but the thoroughness and even the good faith of the investigation, as well. By the State's own admission, Beanie was essential to its investigation and, indeed, "made the case" against Kyles. Tr. of Closing Arg. 13 (Dec. 7, 1984). Contrary to what one might hope for from such a source, however, Beanie's statements to the police were replete with inconsistencies and would have allowed the jury to infer that Beanie was anxious to see Kyles arrested for Dye's murder. Their disclosure would have revealed a remarkably uncritical attitude on the part of the police.If the defense had called Beanie as an adverse witness, he could not have said anything of any significance without being trapped by his inconsistencies. A short recapitulation of some of them will make the point. In Beanie's initial meeting with the police, and in his signed statement, he said he bought Dye's LTD and helped Kyles retrieve his car from the Schwegmann's lot on Friday. In his first call to the po-446lice, he said he bought the LTD on Thursday, and in his conversation with the prosecutor between trials it was again on Thursday that he said he helped Kyles retrieve Kyles's car. Although none of the first three versions of this story mentioned Kevin Black as taking part in the retrieval of the car and transfer of groceries, after Black implicated Beanie by his testimony for the defense at the first trial, Beanie changed his story to include Black as a participant. In Beanie's several accounts, Dye's purse first shows up variously next to a building, in some bushes, in Kyles's car, and at Black's house.Even if Kyles's lawyer had followed the more conservative course of leaving Beanie off the stand, though, the defense could have examined the police to good effect on their knowledge of Beanie's statements and so have attacked the reliability of the investigation in failing even to consider Beanie's possible guilt and in tolerating (if not countenancing) serious possibilities that incriminating evidence had been planted. See, e. g., Bowen v. Maynard, 799 F.2d 593, 613 (CAlO 1986) ("A common trial tactic of defense lawyers is to discredit the caliber of the investigation or the decision to charge the defendant, and we may consider such use in assessing a possible Brady violation"); Lindsey v. King, 769 F.2d 1034, 1042 (CA5 1985) (awarding new trial of prisoner convicted in Louisiana state court because withheld Brady evidence "carried within it the potential ... for the ... discrediting ... of the police methods employed in assembling the case").1515 The dissent, post, at 464, suggests that for jurors to count the sloppiness of the investigation against the probative force of the State's evidence would have been irrational, but of course it would have been no such thing. When, for example, the probative force of evidence depends on the circumstances in which it was obtained and those circumstances raise a possibility of fraud, indications of conscientious police work will enhance probative force and slovenly work will diminish it. See discussion of purse and gun, infra, at 447-449.447By demonstrating the detectives' knowledge of Beanie's affirmatively self-incriminating statements, the defense could have laid the foundation for a vigorous argument that the police had been guilty of negligence. In his initial meeting with police, Beanie admitted twice that he changed the license plates on the LTD. This admission enhanced the suspiciousness of his possession of the car; the defense could have argued persuasively that he was no bona fide purchaser. And when combined with his police record, evidence of prior criminal activity near Schwegmann's, and his status as a suspect in another murder, his devious behavior gave reason to believe that he had done more than buy a stolen car. There was further self-incrimination in Beanie's statement that Kyles's car was parked in the same part of the Schwegmann's lot where Dye was killed. Beanie's apparent awareness of the specific location of the murder could have been based, as the State contends, on television or newspaper reports, but perhaps it was not. Cf. App. 215 (Beanie saying that he knew about the murder because his brother-in-law had seen it "on T. V. and in the paper" and had told Beanie). Since the police admittedly never treated Beanie as a suspect, the defense could thus have used his statements to throw the reliability of the investigation into doubt and to sully the credibility of Detective Dillman, who testified that Beanie was never a suspect, Tr. 103-105, 107 (Dec. 6, 1984), and that he had "no knowledge" that Beanie had changed the license plate, id., at 95.The admitted failure of the police to pursue these pointers toward Beanie's possible guilt could only have magnified the effect on the jury of explaining how the purse and the gun happened to be recovered. In Beanie's original recorded statement, he told the police that "[Kyles's] garbage goes out tomorrow," and that "if he's smart he'll put [the purse] in [the] garbage." App. 257. These statements, along with the internal memorandum stating that the police had "reason to believe" Dye's personal effects and Schwegmann's bags448would be in the garbage, would have supported the defense's theory that Beanie was no mere observer, but was determining the investigation's direction and success. The potential for damage from using Beanie's statement to undermine the ostensible integrity of the investigation is only confirmed by the prosecutor's admission at one of Kyles's postconviction hearings, that he did not recall a single instance before this case when police had searched and seized garbage on the street in front of a residence, Tr. of Hearing on PostConviction Relief 113 (Feb. 20, 1989), and by Detective John Miller's admission at the same hearing that he thought at the time that it "was a possibility" that Beanie had planted the incriminating evidence in the garbage, Tr. of Hearing on Post-Conviction Relief 51 (Feb. 24, 1989). If a police officer thought so, a juror would have, toO.16To the same effect would have been an enquiry based on Beanie's apparently revealing remark to police that "if you can set [Kyles] up good, you can get that same gun." 17 App. 228-229. While the jury might have understood that Beanie meant simply that if the police investigated Kyles, they would probably find the murder weapon, the jury could also have taken Beanie to have been making the more sinister16 The dissent, rightly, does not contend that Beanie would have had a hard time planting the purse in Kyles's garbage. See post, at 471 (arguing that it would have been difficult for Beanie to plant the gun and homemade holster). All that would have been needed was for Beanie to put the purse into a trash bag out on the curb. See Tr. 97, 101 (Dec. 6, 1984) (testimony of Detective Dillman; garbage bags were seized from "a common garbage area" on the street in "the early morning hours when there wouldn't be anyone on the street").17The dissent, post, at 461-462, argues that it would have been stupid for Beanie to have tantalized the police with the prospect of finding the gun one day before he may have planted it. It is odd that the dissent thinks the Brady reassessment requires the assumption that Beanie was shrewd and sophisticated: the suppressed evidence indicates that within a period of a few hours after he first called police Beanie gave three different accounts of Kyles's recovery of the purse (and gave yet another about a month later).449suggestion that the police "set up" Kyles, and the defense could have argued that the police accepted the invitation. The prosecutor's notes of his interview with Beanie would have shown that police officers were asking Beanie the whereabouts of the gun all day Sunday, the very day when he was twice at Kyles's apartment and was allegedly seen by Johnny Burns lurking near the stove, where the gun was later found.18 Beanie's same statement, indeed, could have been used to cap an attack on the integrity of the investigation and on the reliability of Detective Dillman, who testified on cross-examination that he did not know if Beanie had been at Kyles's apartment on Sunday. Tr. 93, 101 (Dec. 6, 1984).1918 The dissent would rule out any suspicion because Beanie was said to have worn a "tank-top" shirt during his visits to the apartment, post, at 471; we suppose that a small handgun could have been carried in a man's trousers, just as a witness for the State claimed the killer had carried it, Tr. 52 (Dec. 6, 1984) (Williams). Similarly, the record photograph of the homemade holster indicates that the jury could have found it to be constructed of insubstantial leather or cloth, duct tape, and string, concealable in a pocket.19 In evaluating the weight of all these evidentiary items, it bears mention that they would not have functioned as mere isolated bits of good luck for Kyles. Their combined force in attacking the process by which the police gathered evidence and assembled the case would have complemented, and have been complemented by, the testimony actually offered by Kyles's friends and family to show that Beanie had framed Kyles. Exposure to Beanie's own words, even through cross-examination of the police officers, would have made the defense's case more plausible and reduced its vulnerability to credibility attack. Johnny Burns, for example, was subjected to sharp cross-examination after testifying that he had seen Beanie change the license plate on the LTD, that he walked in on Beanie stooping near the stove in Kyles's kitchen, that he had seen Beanie with handguns of various calibers, including a .32, and that he was testifying for the defense even though Beanie was his "best friend." Tr. 260, 262263, 279, 280 (Dec. 7, 1984). On each of these points, Burns's testimony would have been consistent with the withheld evidence: that Beanie had spoken of Burns to the police as his "partner," had admitted to changing the LTD's license plate, had attended Sunday dinner at Kyles's apartment, and had a history of violent crime, rendering his use of guns more likely. With this information, the defense could have challenged the prosecution's450cNext to be considered is the prosecution's list of the cars in the Schwegmann's parking lot at mid-evening after the murder. While its suppression does not rank with the failure to disclose the other evidence discussed here, it would have had some value as exculpation and impeachment, and it counts accordingly in determining whether Bagley's standard of materiality is satisfied. On the police's assumption, argued to the jury, that the killer drove to the lot and left his car there during the heat of the investigation, the list without Kyles's registration would obviously have helped Kyles and would have had some value in countering an argument by the prosecution that a grainy enlargement of a photograph of the crime scene showed Kyles's car in the background. The list would also have shown that the police either knew that it was inconsistent with their informant's second and third statements (in which Beanie described retrieving Kyles's car after the time the list was compiled) or never even bothered to check the informant's story against known fact. Either way, the defense would have had further support for arguing that the police were irresponsible in relying on Beanie to tip them off to the location of evidence damaging to Kyles.The State argues that the list was neither impeachment nor exculpatory evidence because Kyles could have moved his car before the list was created and because the list doesgood faith on at least some of the points of cross-examination mentioned and could have elicited police testimony to blunt the effect of the attack on Burns.JUSTICE SCALIA suggests that we should "gauge" Burns's credibility by observing that the state judge presiding over Kyles's postconviction proceeding did not find Burns's testimony in that proceeding to be convincing, and by noting that Burns has since been convicted for killing Beanie. Post, at 471-472. Of course neither observation could possibly have affected the jury's appraisal of Burns's credibility at the time of Kyles's trials.451not purport to be a comprehensive listing of all the cars in the Schwegmann's lot. Such argument, however, confuses the weight of the evidence with its favorable tendency, and even if accepted would work against the State, not for it. If the police had testified that the list was incomplete, they would simply have underscored the unreliability of the investigation and complemented the defense's attack on the failure to treat Beanie as a suspect and his statements with a presumption of fallibility. But however the evidence would have been used, it would have had some weight and its tendency would have been favorable to Kyles.DIn assessing the significance of the evidence withheld, one must of course bear in mind that not every item of the State's case would have been directly undercut if the Brady evidence had been disclosed. It is significant, however, that the physical evidence remaining unscathed would, by the State's own admission, hardly have amounted to overwhelming proof that Kyles was the murderer. See Tr. of Oral Arg. 56 ("The heart of the State's case was eye-witness identification"); see also Tr. of Hearing on Post-Conviction Relief 117 (Feb. 20, 1989) (testimony of chief prosecutor Strider) ("The crux of the case was the four eye-witnesses"). Ammunition and a holster were found in Kyles's apartment, but if the jury had suspected the gun had been planted the significance of these items might have been left in doubt. The fact that pet food was found in Kyles's apartment was consistent with the testimony of several defense witnesses that Kyles owned a dog and that his children fed stray cats. The brands of pet food found were only two of the brands that Dye typically bought, and these two were common, whereas the one specialty brand that was found in Dye's apartment after her murder, Tr. 180 (Dec. 7, 1984), was not found in Kyles's apartment, id., at 188. Although Kyles was wrong in describing the cat food as being on sale the day he said he bought it, he452was right in describing the way it was priced at Schwegmann's market, where he commonly shopped.20Similarly undispositive is the small Schwegmann's receipt on the front passenger floorboard of the LTD, the only physical evidence that bore a fingerprint identified as Kyles's. Kyles explained that Beanie had driven him to Schwegmann's on Friday to buy cigarettes and transmission fluid, and he theorized that the slip must have fallen out of the bag when he removed the cigarettes. This explanation is consistent with the location of the slip when found and with its small size. The State cannot very well argue that the fingerprint ties Kyles to the killing without also explaining how the 2-inch-Iong register slip could have been the receipt for a week's worth of groceries, which Dye had gone to Schwegmann's to purchase. Id., at 181-182.2120 Kyles testified that he believed the pet food to have been on sale because "they had a little sign there that said three for such and such, two for such and such at a cheaper price. It wasn't even over a dollar." Tr. 341 (Dec. 7, 1984). When asked about the sign, Kyles said it "wasn't big ... [i]t was a little bitty piece of slip ... on the shelf." Id., at 342. Subsequently, the prices were revealed as in fact being "[t]hree for 89 [cents]" and "two for 77 [cents]," id., at 343, which comported exactly with Kyles's earlier description. The director of advertising at Schwegmann's testified that the items purchased by Kyles had not been on sale, but also explained that the multiple pricing was thought to make the products "more attractive" to the customer. Id., at 396. The advertising director stated that store policy was to not have signs on the shelves, but he also admitted that salespeople sometimes disregarded the policy and put signs up anyway, and that he could not say for sure whether there were signs up on the day Kyles said he bought the pet food. Id., at 398-399. The dissent suggests, post, at 473, that Kyles must have been so "very poor" as to be unable to purchase the pet food. The total cost of the 15 cans of pet food found in Kyles's apartment would have been $5.67. See Tr. 188, 395 (Dec. 7, 1984). Rather than being "damning," post, at 472, the pet food evidence was thus equivocal and, in any event, was not the crux of the prosecution's case, as the State has conceded. See supra, at 451 and this page.21 The State's counsel admitted at oral argument that its case depended on the facially implausible notion that Dye had not made her typical weekly grocery purchases on the day of the murder (if she had, the receipt453The inconclusiveness of the physical evidence does not, to be sure, prove Kyles's innocence, and the jury might have found the eyewitness testimony of Territo and Kersh sufficient to convict, even though less damning to Kyles than that of Smallwood and Williams.22 But the question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury's verdict would have been the same. Confidence that it would have been cannot survive a recap of the suppressed evidence and its significance for the prosecution. The jury would have been entitled to find(a) that the investigation was limited by the police's uncritical readiness to accept the story and suggestions of an informant whose accounts were inconsistent to the point, for example, of including four different versions of the discovery of the victim's purse, and whose own behavior was enough to raise suspicions of guilt;(b) that the lead police detective who testified was either less than wholly candid or less than fully informed;(c) that the informant's behavior raised suspicions that he had planted both the murder weapon and the victim's purse in the places they were found;(d) that one of the four eyewitnesses crucial to the State's case had given a description that did not match the defendant and better described the informant;(e) that another eyewitness had been coached, since he had first stated that he had not seen the killer outside the getaway car, or the killing itself, whereas at trial hewould have been longer), but that she had indeed made her typical weekly purchases of pet food (hence the presence of the pet food in Kyles's apartment, which the State claimed were Dye's). Tr. of Oral Arg. 53-54.22 See supra, at 445. On remand, of course, the State's case will be weaker still, since the prosecution is unlikely to rely on Kersh, who now swears that she committed perjury at the two trials when she identified Kyles as the murderer. See n. 6, supra.454claimed to have seen the shooting, described the murder weapon exactly, and omitted portions of his initial description that would have been troublesome for the case; (f) that there was no consistency to eyewitness descriptions of the killer's height, build, age, facial hair, or hair length.Since all of these possible findings were precluded by the prosecution's failure to disclose the evidence that would have supported them, "fairness" cannot be stretched to the point of calling this a fair trial. Perhaps, confidence that the verdict would have been the same could survive the evidence impeaching even two eyewitnesses if the discoveries of gun and purse were above suspicion. Perhaps those suspicious circumstances would not defeat confidence in the verdict if the eyewitnesses had generally agreed on a description and were free of impeachment. But confidence that the verdict would have been unaffected cannot survive when suppressed evidence would have entitled a jury to find that the eyewitnesses were not consistent in describing the killer, that two out of the four eyewitnesses testifying were unreliable, that the most damning physical evidence was subject to suspicion, that the investigation that produced it was insufficiently probing, and that the principal police witness was insufficiently informed or candid. This is not the "massive" case envisioned by the dissent, post, at 475; it is a significantly weaker case than the one heard by the first jury, which could not even reach a verdict.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, 1994SyllabusKYLES v. WHITLEY, WARDENCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUITNo. 93-7927. Argued November 7, 1994-Decided April 19, 1995Petitioner Kyles was convicted of first-degree murder by a Louisiana jury and sentenced to death. Following the affirmance of his conviction and sentence on direct appeal, it was revealed on state collateral review that the State had never disclosed certain evidence favorable to him. That evidence included, inter alia, (1) contemporaneous eyewitness statements taken by the police following the murder; (2) various statements made to the police by an informant known as "Beanie," who was never called to testify; and (3) a computer printout of license numbers of cars parked at the crime scene on the night of the murder, which did not list the number of Kyles's car. The state trial court nevertheless denied relief, and the State Supreme Court denied Kyles's application for discretionary review. He then sought relief on federal habeas, claiming, among other things, that his conviction was obtained in violation of Brady v. Maryland, 373 U. S. 83,87, which held that the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment. The Federal District Court denied relief, and the Fifth Circuit affirmed.Held:1. Under United States v. Bagley, 473 U. S. 667, four aspects of materiality for Brady purposes bear emphasis. First, favorable evidence is material, and constitutional error results from its suppression by the government, if there is a "reasonable probability" that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Thus, a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal. 473 U. S., at 682, 685. United States v. Agurs, 427 U. S. 97, 112-113, distinguished. Second, Bagley materiality is not a sufficiency of evidence test. One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. Third, contrary to the Fifth Circuit's assumption, once a reviewing court applying Bagley has found constitutional error, there is no need for further harmless-error review, since the constitutional standard for materi-420Syllabusality under Bagley imposes a higher burden than the harmless-error standard of Brecht v. Abrahamson, 507 U. S. 619, 623. Fourth, the state's disclosure obligation turns on the cumulative effect of all suppressed evidence favorable to the defense, not on the evidence considered item by item. 473 U. S., at 675, and n. 7. Thus, the prosecutor, who alone can know what is undisclosed, must be assigned the responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of "reasonable probability" is reached. Moreover, that responsibility remains regardless of any failure by the police to bring favorable evidence to the prosecutor's attention. To hold otherwise would amount to a serious change of course from the Brady line of cases. As the more likely reading of the Fifth Circuit's opinion shows a series of independent materiality evaluations, rather than the cumulative evaluation required by Bagley, it is questionable whether that court evaluated the significance of the undisclosed evidence in this case under the correct standard. Pp. 432-441.2. Because the net effect of the state-suppressed evidence favoring Kyles raises a reasonable probability that its disclosure would have produced a different result at trial, the conviction cannot stand, and Kyles is entitled to a new trial. Pp.441-454.(a) A review of the suppressed statements of eyewitnesses-whose testimony identifying Kyles as the killer was the essence of the State's case-reveals that their disclosure not only would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense, but also would have substantially reduced or destroyed the value of the State's two best witnesses. Pp.441-445.(b) Similarly, a recapitulation of the suppressed statements made to the police by Beanie-who, by the State's own admission, was essential to its investigation and, indeed, "made the case" against Kylesreveals that they were replete with significant inconsistencies and affirmatively self-incriminating assertions, that Beanie was anxious to see Kyles arrested for the murder, and that the police had a remarkably uncritical attitude toward Beanie. Disclosure would therefore have raised opportunities for the defense to attack the thoroughness and even the good faith of the investigation, and would also have allowed the defense to question the probative value of certain crucial physical evidence. Pp.445-449.(c) While the suppression of the prosecution's list of the cars at the crime scene after the murder does not rank with the failure to disclose the other evidence herein discussed, the list would have had some value as exculpation of Kyles, whose license plate was not included thereon, and as impeachment of the prosecution's arguments to the jury that the killer left his car at the scene during the investigation and that a grainy421Full Text of Opinion

1990_89-1217

JUSTICE BLACKMUN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, IV-B (except for the final paragraph), IV-D, IV-E, and IV-F, and an opinion with respect to Parts III-A and IV-A, the final paragraph of Part IV-B, and Parts IV-C and V, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE STEVENS join.This case presents issues concerning the constitutional limitations, if any, upon the payment, required as a condition of employment, of dues by a nonmember to a union in the public sector.IMichigan's Public Employment Relations Act (Act), Mich.Comp.Laws §§ 423.201 et seq. (1978), provides that a duly selected union shall serve as the exclusive collective bargaining representative of public employees in a particular bargaining unit. [Footnote 1] The Act, which applies to faculty members of a public educational institution in Michigan, permits a union and a government employer to enter into an "agency shop" arrangement under which employees within the bargaining unit who decline to become members of the union are compelled to pay a "service fee" to the union. [Footnote 2] Page 500 U. S. 512Respondent Ferris Faculty Association (FFA), an affiliate of the Michigan Education Association (MEA) and the National Education Association (NEA), serves, pursuant to this provision, as the exclusive bargaining representative of the faculty of Ferris State College in Big Rapids, Mich. Ferris is a public institution established under the Michigan Constitution, and is funded by the State. See Mich.Const. Art. VIII, § 4. Since 1975, the FFA and Ferris have entered into successive collective bargaining agreements containing agency shop provisions. Those agreements were the fruit of negotiations between the FFA and respondent Board of Control, the governing body of Ferris. See Mich. Comp.Law § 390.802 (1988).Subsequent to this Court's decision in Abood v. Detroit Board of Education, 431 U. S. 209 (1977), in which the Court upheld the constitutionality of the Michigan agency shop provision and outlined permissible uses of the compelled fee by public employee unions, Ferris proposed, and the FFA agreed to, the agency shop arrangement at issue here. That agreement required all employees in the bargaining unit who did not belong to the FFA to pay a service fee equivalent to the amount of dues required of a union member. [Footnote 3] Of the Page 500 U. S. 513 $284.00 service fee for 1981-1982, the period at issue, $24.80 went to the FFA, $211.20 to the MEA, and $48.00 to the NEA.Petitioners were members of the Ferris faculty during the period in question, and objected to certain uses by the unions of their service fees. Petitioners instituted this action, pursuant to 42 U.S.C. §§ 1983, 1985, 1986, in the United States District Court for the Western District of Michigan, claiming that the use of their fees for purposes other than negotiating and administering a collective bargaining agreement with the Board of Control violated rights secured to them by the First and Fourteenth Amendments of the United States Constitution. Petitioners also claimed that the procedures implemented by the unions to determine and collect service fees were inadequate.After a 12-day bench trial, the District Court issued its opinion holding that certain union expenditures were chargeable to petitioners, that certain other expenditures were not chargeable as a matter of law, and that still other expenditures were not chargeable because the unions had failed to sustain their burden of proving that the expenditures were made for chargeable activities. 643 F. Supp. 1306 (1986).Following a partial settlement, petitioners took an appeal limited to the claim that the District Court erred in holding Page 500 U. S. 514 that the costs of certain disputed union activities were constitutionally chargeable to the plaintiff faculty members. Specifically, petitioners objected to the District Court's conclusion that the union constitutionally could charge them for the costs of (1) lobbying and electoral politics; (2) bargaining, litigation, and other activities on behalf of persons not in petitioners' bargaining unit; (3) public relations efforts; (4) miscellaneous professional activities; (5) meetings and conventions of the parent unions; and (6) preparation for a strike which, had it materialized, would have violated Michigan law.The Court of Appeals, with one judge dissenting in large part, affirmed. 881 F.2d 1388 (CA6 1989). After reviewing this Court's cases in the area, the court concluded that each of the challenged activities was sufficiently related to the unions' duties as the exclusive bargaining representative of petitioners' unit to justify compelling petitioners to assist in subsidizing it. The dissenting judge concurred with respect to convention expenses, but disagreed with the majority's resolution of the other items challenged. Id. at 1394. Because of the importance of the issues, we granted certiorari. 496 U.S. 924 (1990).IIThis is not our first opportunity to consider the constitutional dimensions of union security provisions such as the agency shop agreement at issue here. The Court first addressed the question in Railway Employee v. Hanson, 351 U. S. 225 (1956), where it recognized the validity of a "union shop" agreement authorized by § 2, Eleventh, of the Railway Labor Act (RLA), as amended, 64 Stat. 1238, 45 U.S.C. § 152, Eleventh, as applied to private employees. As with the Michigan statute we consider today, the RLA provision at issue in Hanson was permissive in nature. It was more expansive than the Michigan Act, however, because the challenged RLA provision authorized an agreement that compelled Page 500 U. S. 515 union membership, rather than simply the payment of a service fee by a nonmember employee.Finding that the concomitants of compulsory union membership authorized by the RLA extended only to financial support of the union in its collective bargaining activities, the Court determined that the challenged arrangement did not offend First or Fifth Amendment values. It cautioned, however: "If assessments' are in fact imposed for purposes not germane to collective bargaining, a different problem would be presented." 351 U.S. at 351 U. S. 235 (footnote omitted). It further emphasized that the Court's approval of the statutorily sanctioned agreement did not extend to cases in which compelled membership is used "as a cover for forcing ideological conformity or other action in contravention of the First Amendment." Id. at 351 U. S. 238.Hanson did not directly concern the extent to which union dues collected under a governmentally authorized union-shop agreement may be utilized in support of ideological causes or political campaigns to which reluctant union members are opposed. The Court addressed that issue under the RLA in Machinists v. Street, 367 U. S. 740 (1961). Unlike Hanson, the record in Street was replete with detailed information and specific factual findings that the union dues of dissenting employees had been used for political purposes. Recognizing that, in enacting § 2, Eleventh, of the RLA, Congress sought to protect the expressive freedom of dissenting employees while promoting collective representation, the Street Court construed the RLA to deny unions the authority to expend dissenters' funds in support of political causes to which those employees objected.Two years later, in Railway Clerks v. Allen, 373 U. S. 113 (1963), another RLA case, the Court reaffirmed that holding. It emphasized the important distinction between a union's political expenditures and "those germane to collective bargaining," with only the latter being properly chargeable to dissenting employees under the statute. Page 500 U. S. 516Although they are cases of statutory construction, Street and Allen are instructive in delineating the bounds of the First Amendment in this area as well. Because the Court expressly has interpreted the RLA "to avoid serious doubt of [the statute's] constitutionality," Street, 367 U.S. at 367 U. S. 749; see Ellis v. Railway Clerks, 466 U. S. 435, 466 U. S. 444 (1984), the RLA cases necessarily provide some guidance regarding what the First Amendment will countenance in the realm of union support of political activities through mandatory assessments. Specifically, those cases make clear that expenses that are relevant or "germane" to the collective bargaining functions of the union generally will be constitutionally chargeable to dissenting employees. They further establish that, at least in the private sector, those functions do not include political or ideological activities.It was not until the decision in Abood that this Court addressed the constitutionality of union security provisions in the public employment context. There, the Court upheld the same Michigan statute which is before us today against a facial First Amendment challenge. At the same time, it determined that the claim that a union has utilized an individual agency shop agreement to force dissenting employees to subsidize ideological activities could establish, upon a proper showing, a First Amendment violation. In so doing, the Court set out several important propositions:First, it recognized that "[t]o compel employees financially to support their collective bargaining representative has an impact upon their First Amendment interests." 431 U.S. at 431 U. S. 222. Unions traditionally have aligned themselves with a wide range of social, political, and ideological viewpoints, any number of which might bring vigorous disapproval from individual employees. To force employees to contribute, albeit indirectly, to the promotion of such positions implicates core First Amendment concerns. See, e.g., Wooley v. Maynard, 430 U. S. 705, 430 U. S. 714 (1977) ("[T]he right of freedom of thought protected by the First Amendment against state action Page 500 U. S. 517 includes both the right to speak freely and the right to refrain from speaking at all").Second, the Court in Abood determined that, as in the private sector, compulsory affiliation with, or monetary support of, a public employment union does not, without more, violate the First Amendment rights of public employees. Similarly, an employee's free speech rights are not unconstitutionally burdened because the employee opposes positions taken by a union in its capacity as collective bargaining representative."[T]he judgment clearly made in Hanson and Street is that such interference as exists is constitutionally justified by the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress."431 U.S. at 431 U. S. 222.In this connection, the Court indicated that the considerations that justify the union shop in the private context -- the desirability of labor peace and eliminating "free riders" -- are equally important in the public sector workplace. Consequently, the use of dissenters' assessments "for the purposes of collective bargaining, contract administration, and grievance adjustment," id. at 431 U. S. 225-226, approved under the RLA, is equally permissible when authorized by a State vis-a-vis its own workers.Third, the Court established that the constitutional principles that prevent a State from conditioning public employment upon association with a political party, see Elrod v. Burns, 427 U. S. 347 (1976) (plurality opinion), or upon professed religious allegiance, see Torcaso v. Watkins, 367 U. S. 488 (1961), similarly prohibit a public employer "from requiring [an employee] to contribute to the support of an ideological cause he may oppose as a condition of holding a job" as a public educator. 431 U.S. at 431 U. S. 235.The Court in Abood did not attempt to draw a precise line between permissible assessments for public sector collective bargaining activities and prohibited assessments for ideological activities. It did note, however, that, while a similar line Page 500 U. S. 518 must be drawn in the private sector under the RLA, the distinction in the public sector may be "somewhat hazier." Id. at 431 U. S. 236. This is so because the"process of establishing a written collective bargaining agreement prescribing the terms and conditions of public employment may require not merely concord at the bargaining table, but subsequent approval by other public authorities; related budgetary and appropriations decisions might be seen as an integral part of the bargaining process."Ibid.Finally, in Ellis, the Court considered, among other issues, a First Amendment challenge to the use of dissenters' funds for various union expenses including union conventions, publications, and social events. Recognizing that, by allowing union security arrangements at all, it has necessarily countenanced a significant burdening of First Amendment rights, it limited its inquiry to whether the expenses at issue"involve[d] additional interference with the First Amendment interests of objecting employees, and, if so, whether they are nonetheless adequately supported by a governmental interest."466 U.S. at 466 U. S. 456 (emphasis added).Applying that standard to the challenged expenses, the Court found all three to be properly supportable through mandatory assessments. The dissenting employees in Ellis objected to charges relating to union social functions, not because those activities were inherently expressive or ideological in nature, but purely because they were sponsored by the union. Because employees may constitutionally be compelled to affiliate with a union, the Court found that forced contribution to union social events that were open to all imposed no additional burden on their First Amendment rights. Although the challenged expenses for union publications and conventions were clearly communicative in nature, the Court found them to entail little additional encroachment upon freedom of speech, "and none that is not justified by the governmental interests behind the union shop itself." Ibid. See Page 500 U. S. 519 also Keller v. State Bar of California, 496 U. S. 1 (1990), and Communications Workers v. Beck, 487 U. S. 735 (1988).Thus, although the Court's decisions in this area prescribe a case-by-case analysis in determining which activities a union constitutionally may charge to dissenting employees, they also set forth several guidelines to be followed in making such determinations. Hanson and Street and their progeny teach that chargeable activities must (1) be "germane" to collective bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding "free riders"; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop.IIIIn arguing that these principles exclude the charges upheld by the Court of Appeals, petitioners propose two limitations on the use by public sector unions of dissenters' contributions. First, they urge that they may not be charged over their objection for lobbying activities that do not concern legislative ratification of, or fiscal appropriations for, their collective bargaining agreement. Second, as to nonpolitical expenses, petitioners assert that the local union may not utilize dissenters' fees for activities that, though closely related to collective bargaining generally, are not undertaken directly on behalf of the bargaining unit to which the objecting employees belong. We accept the former proposition, but find the latter to be foreclosed by our prior decisions.AThe Court of Appeals determined that unions constitutionally may subsidize lobbying and other political activities with dissenters' fees so long as those activities are "pertinent to the duties of the union as a bargaining representative.'" 881 F.2d at 1392, quoting Robinson v. New Jersey, 741 F.2d 598, 609 (CA3 1984), cert. denied, 469 U.S. 1228 (1985). In reaching this conclusion, the court relied upon the inherently Page 500 U. S. 520 political nature of salary and other workplace decisions in public employment. "To represent their members effectively," the court concluded,"public sector unions must necessarily concern themselves not only with negotiations at the bargaining table, but also with advancing their members' interests in legislative and other 'political' arenas."881 F.2d at 1392.This observation is clearly correct. Public sector unions often expend considerable resources in securing ratification of negotiated agreements by the proper state or local legislative body. See Note, Union Security in the Public Sector: Defining Political Expenditures Related to Collective Bargaining, 1980 Wis.L.Rev. 134, 150-152. Similarly, union efforts to acquire appropriations for approved collective bargaining agreements often serve as an indispensable prerequisite to their implementation. See Developments in the Law: Public Employment, 97 Harv.L.Rev. 1611, 1732-1733 (1984). It was in reference to these characteristics of public employment that the Court in Abood discussed the "somewhat hazier" line between bargaining-related and purely ideological activities in the public sector. 431 U.S. at 431 U. S. 236. The dual roles of government as employer and policymaker in such cases make the analogy between lobbying and collective bargaining in the public sector a close one.This, however, is not such a case. Where, as here, the challenged lobbying activities relate not to the ratification or implementation of a dissenter's collective bargaining agreement, but to financial support of the employee's profession or of public employees generally, the connection to the union's function as bargaining representative is too attenuated to justify compelled support by objecting employees.We arrive at this result by looking to the governmental interests underlying our acceptance of union security arrangements. We have found such arrangements to be justified by the government's interest in promoting labor peace and avoiding the "free-rider" problem that would otherwise accompany Page 500 U. S. 521 union recognition. Chicago Teachers v. Hudson, 475 U. S. 292, 475 U. S. 302-303 (1986); Abood, 431 U.S. at 431 U. S. 224. Neither goal is served by charging objecting employees for lobbying, electoral, and other political activities that do not relate to their collective bargaining agreement.Labor peace is not especially served by allowing such charges because, unlike collective bargaining negotiations between union and management, our national and state legislatures, the media, and the platform of public discourse are public fora open to all. Individual employees are free to petition their neighbors and government in opposition to the union which represents them in the workplace. Because worker and union cannot be said to speak with one voice, it would not further the cause of harmonious industrial relations to compel objecting employees to finance union political activities as well as their own.Similarly, while we have endorsed the notion that nonunion workers ought not be allowed to benefit from the terms of employment secured by union efforts without paying for those services, the so-called "free-rider" concern is inapplicable where lobbying extends beyond the effectuation of a collective bargaining agreement. The balancing of monetary and other policy choices performed by legislatures is not limited to the workplace, but typically has ramifications that extend into diverse aspects of an employee's life.Perhaps most important, allowing the use of dissenters' assessments for political activities outside the scope of the collective bargaining context would present "additional interference with the First Amendment interests of objecting employees." Ellis, 466 U.S. at 466 U. S. 456. There is no question as to the expressive and ideological content of these activities. Further, unlike discussion by negotiators regarding the terms and conditions of employment, lobbying and electoral speech is likely to concern topics about which individuals hold strong personal views. Although First Amendment protection is in no way limited to controversial topics or emotionally Page 500 U. S. 522 charged issues, see Winters v. New York, 333 U. S. 507, 333 U. S. 510 (1948); Buckley v. Valeo, 424 U. S. 1, 424 U. S. 14 (1976); Abood, 431 U.S. at 431 U. S. 231, and n. 28, the extent of one's disagreement with the subject of compulsory speech is relevant to the degree of impingement upon free expression that compulsion will effect.The burden upon freedom of expression is particularly great where, as here, the compelled speech is in a public context. By utilizing petitioners' funds for political lobbying and to garner the support of the public in its endeavors, the union would use each dissenter as "an instrument for fostering public adherence to an ideological point of view he finds unacceptable." Maynard, 430 U.S. at 430 U. S. 715. The First Amendment protects the individual's right of participation in these spheres from precisely this type of invasion. Where the subject of compelled speech is the discussion of governmental affairs, which is at the core of our First Amendment freedoms, Roth v. United States, 354 U. S. 476, 354 U. S. 484 (1957); Mills v. Alabama, 384 U. S. 214, 384 U. S. 218 (1966); Buckley v. Valeo, 424 U.S. at 424 U. S. 14, the burden upon dissenters' rights extends far beyond the acceptance of the agency shop and is constitutionally impermissible.Accordingly, we hold that the State constitutionally may not compel its employees to subsidize legislative lobbying or other political union activities outside the limited context of contract ratification or implementation.BPetitioners' contention that they may be charged only for those collective bargaining activities undertaken directly on behalf of their unit presents a closer question. While we consistently have looked to whether nonideological expenses are "germane to collective bargaining," Hanson, 351 U.S. at 351 U. S. 235, we have never interpreted that test to require a direct relationship between the expense at issue and some tangible benefit to the dissenters' bargaining unit. Page 500 U. S. 523We think that to require so close a connection would be to ignore the unified membership structure under which many unions, including those here, operate. Under such arrangements, membership in the local union constitutes membership in the state and national parent organizations. See 643 F. Supp. at 1308. See also Cumero v. Public Employment Relations Board, 49 Cal. 3d 575, 603-604, 262 Cal. Rptr. 46, 64, 778 P.2d 174, 192 (1989) (noting the inherent "close organizational relationship").The essence of the affiliation relationship is the notion that the parent will bring to bear its often considerable economic, political, and informational resources when the local is in need of them. Consequently, that part of a local's affiliation fee which contributes to the pool of resources potentially available to the local is assessed for the bargaining unit's protection, even if it is not actually expended on that unit in any particular membership year.The Court recognized as much in Ellis. There it construed the RLA to allow the use of dissenters' funds to help defray the costs of the respondent union's national conventions. It reasoned that,"if a union is to perform its statutory functions, it must maintain its corporate or associational existence, must elect officers to manage and carry on its affairs, and may consult its members about overall bargaining goals and policy."466 U.S. at 466 U. S. 448. We see no reason why analogous public sector union activities should be treated differently. [Footnote 4] Page 500 U. S. 524We therefore conclude that a local bargaining representative may charge objecting employees for their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates, even if those activities were not performed for the direct benefit of the objecting employees' bargaining unit. This conclusion, however, does not serve to grant a local union carte blanche to expend dissenters' dollars for bargaining activities wholly unrelated to the employees in their unit. The union surely may not, for example, charge objecting employees for a direct donation or interest-free loan to an unrelated bargaining unit for the purpose of promoting employee rights or unionism generally. Further, a contribution by a local union to its parent that is not part of the local's responsibilities as an affiliate, but is in the nature of a charitable donation, would not be chargeable to dissenters. There must be some indication that the payment is for services that may ultimately enure to the benefit of the members of the local union by virtue of their membership in the parent organization. And, as always, the union bears the burden of proving the proportion of chargeable expenses to total expenses. Chicago Teachers v. Hudson, 475 U.S. at 475 U. S. 306; Abood, 431 U.S. at 431 U. S. 239-240, n. 40; Railway Clerks v. Allen, 373 U.S. at 373 U. S. 122. We conclude merely that the union need not demonstrate a direct and tangible impact upon the dissenting employee's unit.CJUSTICE SCALIA would find "implicit in our cases since Street" the rule that, "to be constitutional, a charge must at least be incurred in performance of the union's statutory duties." Post at 500 U. S. 558. As the preceding discussion indicates, we reject this reading of our cases. This Court never has held that the First Amendment compels such a requirement, and our prior decisions cannot reasonably be construed to Page 500 U. S. 525 support his stated proposition. See, e.g., Ellis, 466 U.S. at 466 U. S. 456 ("Petitioners may feel that their money is not being well-spent, but that does not mean they have a First Amendment complaint"); see also Keller, supra, (distinguishing between statutory and constitutional duties in the context of integrated state bar membership).Even if viewed merely as a prophylactic rule for enforcing the First Amendment in the union security context, JUSTICE SCALIA's approach ultimately must be rejected. As the relevant provisions of the Michigan Act illustrate, [Footnote 5] state labor laws are rarely precise in defining the duties of public sector unions to their members. Indeed, it is reasonable to assume that the Michigan provisions relating to collective bargaining duties were purposefully drafted in broad terms so as to provide unions the flexibility and discretion necessary to accommodate the needs of their constituents. Here, as in the RLA context, "[t]he furtherance of the common cause leaves some leeway for the leadership of the group." Street, 367 U.S. at 367 U. S. 778 (Douglas, J., concurring), quoted in Abood, 431 U.S. at 431 U. S. 222-223. Page 500 U. S. 526Consequently, the terms of the Act provide a poor criterion for determining which charges violate the First Amendment rights of dissenting employees. The broad language of the Act does not begin to explain which of the specific activities at issue here fall within the union's collective bargaining function as contemplated by our cases. Far from providing a bright-line standard, JUSTICE SCALIA's "statutory duties" test fails to afford courts and litigants the guidance necessary to make these particularized distinctions.More important, JUSTICE SCALIA's rigid approach fails to acknowledge the practicalities of the complex interrelationship between public employers, employees, unions, and the public. The role of an effective representative in this context often encompasses responsibilities that extend beyond those specifically delineated in skeletal state labor law statutes. See Abood, 431 U.S. at 431 U. S. 236. That an exclusive bargaining representative has gone beyond the bare requirements of the law in representing its constituents through employee contributions does not automatically mean that the Constitution has been violated, at least where the funded activities have not transgressed state provisions."The very nature of the free-rider problem and the governmental interest in overcoming it require that the union have a certain flexibility in its use of compelled funds."Ellis, 466 U.S. at 466 U. S. 456.We therefore disagree with JUSTICE SCALIA that any charge that does not relate to an activity expressly authorized by statute is constitutionally invalid, irrespective of its impact, or lack thereof, on free expression. In our view, his analysis turns our constitutional doctrine on its head. Instead of interpreting statutes in light of First Amendment principles, he would interpret the First Amendment in light of state statutory law. It seems to us that this proposal bears little relation to the values that the First Amendment was designed to protect. A rule making violations of freedom of speech dependent upon the terms of state employment Page 500 U. S. 527 statutes would sacrifice sound constitutional analysis for the appearance of administrability.We turn to the union activities at issue in this case.IVAThe Court of Appeals found that the union could constitutionally charge petitioners for the costs of a Preserve Public Education (PPE) program designed to secure funds for public education in Michigan, and that portion of the MEA publication, the Teacher's Voice, which reported these activities. Petitioners argue that, contrary to the findings of the courts below, the PPE program went beyond lobbying activity and sought to affect the outcome of ballot issues and "millages" or local taxes for the support of public schools. Given our conclusion as to lobbying and electoral politics generally, this factual dispute is of little consequence. None of these activities was shown to be oriented toward the ratification or implementation of petitioner's collective bargaining agreement. We hold that none may be supported through the funds of objecting employees.BPetitioners next challenge the Court of Appeals' allowance of several activities that the union did not undertake directly on behalf of persons within petitioners' bargaining unit. This objection principally concerns NEA "program expenditures" destined for States other than Michigan, and the expenses of the Teacher's Voice listed as "Collective Bargaining" and "Litigation." Our conclusion that unions may bill dissenting employees for their share of general collective bargaining costs of the state or national parent union is dispositive as to the bulk of the NEA expenditures. The District Court found these costs to be germane to collective bargaining and similar support services, and we decline to disturb that finding. No greater relationship is necessary in the collective bargaining context. Page 500 U. S. 528This rationale does not extend, however, to the expenses of litigation that does not concern the dissenting employees' bargaining unit or, by extension, to union literature reporting on such activities. While respondents are clearly correct that precedent established through litigation on behalf of one unit may ultimately be of some use to another unit, we find extra-unit litigation to be more akin to lobbying in both kind and effect. We long have recognized the important political and expressive nature of litigation. See, e.g., NAACP v. Button, 371 U. S. 415, 371 U. S. 431 (1963) (recognizing that for certain groups, "association for litigation may be the most effective form of political association"). Moreover, union litigation may cover a diverse range of areas from bankruptcy proceedings to employment discrimination. See Ellis, 466 U.S. at 466 U. S. 453. When unrelated to an objecting employee's unit, such activities are not germane to the union's duties as exclusive bargaining representative. Just as the Court in Ellis determined that the RLA, as informed by the First Amendment, prohibits the use of dissenters' fees for extra-unit litigation, ibid., we hold that the Amendment proscribes such assessments in the public sector.CThe Court of Appeals determined that the union constitutionally could charge petitioners for certain public relations expenditures. In this connection, the court said:"Public relations expenditures designed to enhance the reputation of the teaching profession . . . are, in our opinion, sufficiently related to the unions' duty to represent bargaining unit employees effectively so as to be chargeable to dissenters."881 F.2d at 1394. We disagree. Like the challenged lobbying conduct, the public relations activities at issue here entailed speech of a political nature in a public forum. More important, public speech in support of the teaching profession generally is not sufficiently related to the union's collective bargaining functions to justify compelling dissenting employees to support it. Expression of this kind extends beyond Page 500 U. S. 529 the negotiation and grievance-resolution contexts, and imposes a substantially greater burden upon First Amendment rights than do the latter activities.Nor do we accept the Court of Appeals' comparison of these public relations expenses to the costs of union social activities held in Ellis to be chargeable to dissenters. In Ellis, the Court found the communicative content of union social activities, if any, to derive solely from the union's involvement in them. 466 U.S. at 466 U. S. 456. "Therefore," we reasoned,"the fact that the employee is forced to contribute does not increase the infringement of his First Amendment rights already resulting from the compelled contribution to the union."Ibid. The same cannot be said of the public relations charges upheld by the Court of Appeals which covered "informational picketing, media exposure, signs, posters and buttons." 643 F. Supp. at 1313.DThe District Court and the Court of Appeals allowed charges for those portions of the Teachers' Voice that concern teaching and education generally, professional development, unemployment, job opportunities, award programs of the MEA, and other miscellaneous matters. Informational support services such as these are neither political nor public in nature. Although they do not directly concern the members of petitioners' bargaining unit, these expenditures are for the benefit of all, and we discern no additional infringement of First Amendment rights that they might occasion. In short, we agree with the Court of Appeals that these expenses are comparable to the de minimis social activity charges approved in Ellis. See 466 U.S. at 466 U. S. 456.EThe Court of Appeals ruled that the union could use the fees of objecting employees to send FFA delegates to the MEA and the NEA conventions and to participate in the 13E Coordinating Council, another union structure. Petitioners Page 500 U. S. 530 challenge that determination, and argue that, unlike the national convention expenses found to be chargeable to dissenters in Ellis, the meetings at issue here were those of affiliated parent unions, rather than the local, and therefore do not relate exclusively to petitioners' unit.We need not determine whether petitioners could be commanded to support all the expenses of these conventions. The question before the Court is simply whether the unions may constitutionally require petitioners to subsidize the participation in these events of delegates from the local. We hold that they may. That the conventions were not solely devoted to the activities of the FFA does not prevent the unions from requiring petitioners' support. We conclude above that the First Amendment does not require so close a connection. Moreover, participation by members of the local in the formal activities of the parent is likely to be an important benefit of affiliation. This conclusion is supported by the District Court's description of the 13E Coordinating Council meeting as an event at which"bargaining strategies and representational policies are developed for the UniServ unit composed of the Ferris State College and Central Michigan University bargaining units."643 F. Supp. at 1326. As was held in Ellis,"[c]onventions such as those at issue here are normal events . . . , and seem to us to be essential to the union's discharge of its duties as bargaining agent."466 U.S. at 466 U. S. 448-449.FThe chargeability of expenses incident to preparation for a strike which all concede would have been illegal under Michigan law, Mich.Comp.Laws § 423.202 (1979), is a provocative question. At the beginning of the 1981-1982 fiscal year, the FFA and Ferris were engaged in negotiating a new collective bargaining agreement. The union perceived these efforts to be ineffective, and began to prepare a "job action" or, in more familiar terms, to go out on strike. These preparations Page 500 U. S. 531 entailed the creation by the FFA and the MEA of a "crisis center" or "strike headquarters." The District Court found that,"whatever label is attached to this facility, prior to a strike, it serves as a meeting place for the local's membership, a base from which tactical activities such as informational picketing can be conducted, and serves to apply additional pressure on the employer by suggesting, whether true or not, that the local is prepared to strike if necessary."643 F. Supp. at 1313.Had the FFA actually engaged in an illegal strike, the union clearly could not have charged the expenses incident to that strike to petitioners. We can imagine no legitimate governmental interest that would be served by compelling objecting employees to subsidize activity that the State has chosen to disallow. See Male v. Grand Rapids Education Association, 98 Mich. App. 742, 295 N.W.2d 918 (1980), appeal denied, 412 Mich. 851 (1981) (holding that, under Michigan law, compulsory service fees cannot include money allocated to the support of public sector strikes). Similarly, one might expect the State to prohibit unions from using dissenters' funds to threaten or prepare for such conduct. The Michigan Legislature, however, has chosen not to impose such a restriction, and we do not find the First Amendment to require that limitation.Petitioners can identify no determination by the State of Michigan that mere preparation for an illegal strike is itself illegal or against public policy, and we are aware of none. Further, we accept the rationale provided by the Court of Appeals in upholding these charges that such expenditures fall "within the range of reasonable bargaining tools available to a public sector union during contract negotiations." 881 F.2d at 1394. The District Court expressly credited trial testimony by an MEA representative that outward preparations for a potential strike serve as an effective bargaining tool, and that only one out of every seven or eight "job action Page 500 U. S. 532 investigations" actually culminates in a strike. 643 F. Supp. at 1312. The Court of Appeals properly reviewed this finding for clear error. See Anderson v. Bessemer City, 470 U. S. 564, 470 U. S. 575 (1985).In sum, these expenses are substantively indistinguishable from those appurtenant to collective bargaining negotiations. The District Court and the Court of Appeals concluded, and we agree, that they aid in those negotiations and enure to the direct benefit of members of the dissenters' unit. Further, they impose no additional burden upon First Amendment rights. [Footnote 6] The union may properly charge petitioners for those costs.VThe judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtLehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991)Lehnert v. Ferris Faculty AssociationNo. 89-1217Argued Nov. 5, 1990Decided May 30, 1991500 U.S. 507SyllabusSubsequent to Abood v. Detroit Board of Education, 431 U. S. 209, in which the Court upheld the constitutionality of the Michigan Public Employment Relations Act's agency shop provision and outlined permissible union uses of the "service fee" authorized by the provision, respondent Ferris Faculty Association (FFA), which is an affiliate of the Michigan Education Association (MEA) and the National Education Association (NEA), and which serves as the exclusive bargaining representative of the faculty of Michigan's Ferris State College, a public institution, entered into an agency shop arrangement with the college, whereby bargaining unit employees who do not belong to the FFA are required to pay it, the MEA, and the NEA a service fee equivalent to a union member's dues. Petitioners, members of the Ferris faculty who objected to particular uses by the unions of their service fees, filed suit under 42 U.S.C. §§ 1983, 1985, and 1986, claiming, inter alia, that such uses for purposes other than negotiating and administering the collective bargaining agreement violated their rights under the First and Fourteenth Amendments. As here relevant, the District Court held that certain of the union expenditures were constitutionally chargeable to petitioners. The Court of Appeals affirmed, concluding that each of the activities in question was sufficiently related to the unions' duties as petitioners' exclusive collective bargaining representative to justify compelling petitioners to assist in subsidizing it.Held: The judgment is affirmed in part and reversed in part, and the case is remanded.881 F.2d 1388 (CA6 1989), affirmed in part, reversed in part, and remanded.JUSTICE BLACKMUN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, IV-B (except for the final paragraph), IV-D, IV-E, and IV-F, concluding that:1. Abood and other of the Court's decisions in this area set forth guidelines for determining which activities a union constitutionally may charge to dissenting employees. Specifically, chargeable activities must (1) be "germane" to collective bargaining activity; (2) be justified by the government's vital policy interest in labor peace and avoiding "free riders" Page 500 U. S. 508 who benefit from union efforts without paying for union services; and (3) not significantly add to the burdening of free speech that is inherent in the allowance of an agency or union shop. Pp. 500 U. S. 514-519.2. A local bargaining representative may charge objecting employees for their pro rata share of the costs associated with otherwise chargeable activities of its state and national affiliates, even if those activities were not performed for the direct benefit of the objecting employees' bargaining unit. Because the essence of the affiliation relationship is the notion that the parent union will bring to bear its often considerable economic, political, and informational resources when the local is in need of them, that part of a local's affiliation fee which contributes to the pool of resources potentially available to it is assessed for the bargaining unit's protection, even if it is not actually expended on that unit in any particular membership year. Cf. Ellis v. Railway Clerks, 466 U. S. 435, 466 U. S. 448. This does not give the local union carte blanche, since there must be some indication that the payment is for services that may ultimately enure to the benefit of the local's members by virtue of their membership in the parent organization, and since the union bears the burden of proving the proportion of chargeable expenses to total expenses. Pp. 500 U. S. 522-524.3. JUSTICE SCALIA's "statutory duties" test is not supported by this Court's cases, and must be rejected, since state labor laws are rarely precise in defining public sector unions' duties to their members, and therefore afford courts and litigants little guidance for determining which charges violate dissenting employees' First Amendment rights; since the test fails to acknowledge that effective representation often encompasses responsibilities extending beyond those specifically delineated by statute; and since the test turns constitutional doctrine on its head, making violations of freedom of speech dependent upon the terms of state statutes. Pp. 500 U. S. 524-527.4. In light of the foregoing general principles, certain of the union activities at issue may constitutionally be supported through objecting employees' funds. Pp. 500 U. S. 527, 500 U. S. 529-532.(a) NEA "program expenditures" destined for States other than Michigan and the expenses of an MEA publication, the Teacher's Voice, listed as "Collective Bargaining" are germane to collective bargaining and similar support services even though the activities in question do not directly benefit persons in petitioners' bargaining unit. Pp. 500 U. S. 527.(b) Information services such as portions of the Teacher's Voice that concern teaching and education generally, professional development, unemployment, job opportunities, MEA award programs, and other miscellaneous matters are neither political nor public in nature, are for the benefit of all, even though they do not directly concern the members of Page 500 U. S. 509 petitioners' bargaining unit, and entail no additional infringement of First Amendment rights. Cf. Ellis, 466 U.S. at 466 U. S. 456. P. 500 U. S. 529.(c) Participation by FFA delegates in the MEA and NEA conventions and in the 13E Coordinating Council meeting, an event at which bargaining strategies and representational policies are developed for bargaining units including petitioners', are likely to engender important affiliation benefits, since such conventions are essential to the union's discharge of its bargaining agent duties even though they are not solely devoted to FFA activities. Cf. Ellis, 466 U.S. at 466 U. S. 448-449. P. 500 U. S. 529-530.(d) Expenses incident to preparation for a strike all concede would have been illegal under Michigan law are substantively indistinguishable from those appurtenant to collective bargaining negotiations, aid in those negotiations and enure to the direct benefit of members of the dissenters' unit, and impose no additional burden upon First Amendment rights. Pp. 500 U. S. 530-532.JUSTICE BLACKMUN, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE STEVENS, concluded in Parts III-A and IV-A, in the final paragraph of Part IV-B, and in Part IV-C, that certain other of the union activities at issue may not constitutionally be supported through objecting employees' funds. Pp. 500 U. S. 519-522, 500 U. S. 527, 500 U. S. 528-529.(a) Charging dissenters for lobbying, electoral, or other union political activities outside the limited context of contract ratification or implementation is not justified by the government's interest in promoting labor peace and avoiding "free riders," and, most important, would compel dissenters to engage in core political speech with which they disagree, thus placing a burden upon their First Amendment rights that extends far beyond acceptance of the agency shop. Pp. 500 U. S. 519-522.(b) A union program designed to secure funds for public education in Michigan and that portion of the Teacher's Voice which reported those efforts were not shown to be oriented toward the ratification or implementation of petitioners' collective bargaining agreement. P. 500 U. S. 527.(c) Litigation that does not concern petitioners' bargaining unit and, by extension, union literature reporting on such litigation are not germane to the union's duties as exclusive bargaining representative. Cf. Ellis, 466 U.S. at 466 U. S. 453. Extra-unit litigation is akin to lobbying in its political and expressive nature, and may cover a diverse range of activities, from bankruptcy proceedings to employment discrimination. P. 500 U. S. 528.(d) Public relations efforts designed to enhance the reputation of the teaching profession and covering information picketing, media exposure, signs, posters, and buttons entail speech of a political nature in a public forum, are not sufficiently related to the union's collective bargaining functions, and extend beyond the negotiation and grievance-resolution Page 500 U. S. 510 contexts to impose a substantially greater burden upon First Amendment rights. Ellis, 466 U.S. at 466 U. S. 456, distinguished. Pp. 500 U. S. 528-529.JUSTICE SCALIA, joined by JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER, although agreeing with JUSTICE BLACKMUN's disposition of many of the challenged expenditures, concluded that the Court's three-part test is neither required nor suggested by its earlier cases, and provides little, if any, guidance to parties or lower courts, and that a much more administrable test is implicit in the earlier decisions: a union may constitutionally compel contributions from dissenting nonmembers in an agency shop only for the costs of performing the union's statutory duties as exclusive bargaining agent. See, e.g., Machinists v. Street, 367 U. S. 740, 367 U. S. 749, 367 U. S. 760-764, 367 U. S. 768; id. at 367 U. S. 787 (Black, J., dissenting). Applying the latter test, JUSTICE SCALIA also concluded, inter alia, that a number of the challenged expenses, including those for public relations activities and lobbying, cannot be charged to nonmembers. Pp. 500 U. S. 550-560.BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, IV-B (except for the final paragraph), IV-D, IV-E, and IV-F, in which REHNQUIST, C.J., and WHITE, MARSHALL, and STEVENS, JJ., joined, and an opinion with respect to Parts III-A and IV-A, the final paragraph of Part IV-B, and Parts IV-C and V, in which REHNQUIST, C.J., and WHITE and STEVENS, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, post, p. 500 U. S. 533. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which O'CONNOR and SOUTER, JJ., joined, and in all but Part III-C of which KENNEDY, J., joined, post, 500 U. S. 550. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, post, 500 U. S. 562. Page 500 U. S. 511

1992_91-719

Ian G. Sonego, Assistant Attorney General of Kentucky, argued the cause for petitioner. With him on the briefs were Chris Gorman, Attorney General, and David A. Sexton, Assistant Attorney General.John F. Manning argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Sean Connelly.J. Gregory Clare, by appointment of the Court, 503 U. S. 957, argued the cause for respondent. With him on the brief was Mark R. Brown.*JUSTICE O'CONNOR delivered the opinion of the Court. Kentucky's "Persistent felony offender sentencing" statute, Ky. Rev. Stat. Ann. § 532.080 (Michie 1990), provides mandatory minimum sentences for repeat felons. Under Kentucky law, a defendant charged as a persistent felony offender may challenge prior convictions that form the basis of the charge on the ground that they are invalid. Respondent, who was indicted under the statute, claimed that two convictions offered against him were invalid under Boykin v. Alabama, 395 U. S. 238 (1969). The trial court, after a hearing, rejected this claim, and respondent was convicted and sentenced as a persistent felony offender. After exhausting his state remedies, respondent petitioned for a writ of habeas corpus in the United States District Court for the Western District of Kentucky. The District Court denied relief, but the Court of Appeals for the Sixth Circuit ordered that the writ conditionally issue, concluding that the trial court proceedings were constitutionally infirm. As it comes to this Court, the question presented is whether Kentucky's procedure for determining a prior conviction's validity under Boykin violates the Due Process Clause of the Fourteenth* Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.23Amendment because it does not require the government to carry the entire burden of proof by clear and convincing evidence when a transcript of the prior plea proceeding is unavailable.IIn May 1986, the Commonwealth charged respondent Ricky Harold Raley with robbery and with being a persistent felony offender in the first degree. * The latter charge was based on two burglaries to which respondent had pleaded guilty in November 1979 and October 1981. Respondent never appealed his convictions for those crimes. He nevertheless moved to suppress them in the persistent felony offender proceeding, arguing that they were invalid under Boykin because the records did not contain transcripts of the plea proceedings and hence did not affirmatively show that respondent's guilty pleas were knowing and voluntary.The trial court held a hearing according to procedures set forth in Commonwealth v. Gadd, 665 S. W. 2d 915 (Ky. 1984), and Dunn v. Commonwealth, 703 S. W. 2d 874 (Ky. 1985), cert. denied, 479 U. S. 832 (1986). In Gadd, the Supreme Court of Kentucky observed that the persistent felony offender statute requires that the prosecution prove only the fact of a previous conviction beyond a reasonable doubt; the Commonwealth need not also show that the conviction was validly obtained. 665 S. W. 2d, at 917. But, citing Burgett v. Texas, 389 U. S. 109 (1967), the court also held that defend-*"A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies." Ky. Rev. Stat. Ann. § 532.080(3) (Michie 1990). The applicable penalty depends upon the nature of the offense for which the defendant presently stands convicted. A defendant convicted both of second-degree robbery (the crime to which respondent ultimately pleaded guilty) and of being a first-degree persistent felony offender faces a mandatory sentence of 10 to 20 years. §§ 515.030, 532.080(6)(b). A first-degree persistent felony offender is also ineligible for probation or parole until he has served at least 10 years. § 532.080(7).24ants must be able to attack a prior conviction's invalidity. 665 S. W. 2d, at 917. Dunn v. Commonwealth clarified the procedures to be followed. When a defendant challenges a previous conviction through a suppression motion, the Commonwealth must prove the existence of the judgment on which it intends to rely. Once this is done, a presumption of regularity attaches, and the burden shifts to the defendant to produce evidence that his rights were infringed or some procedural irregularity occurred in the earlier proceeding. If the defendant refutes the presumption of regularity, the burden shifts back to the government affirmatively to show that the underlying judgment was entered in a manner that did, in fact, protect the defendant's rights. 703 S. W. 2d, at 876.After the prosecution filed certified copies of the prior judgments of conviction for burglary, both sides presented evidence about the earlier plea proceedings. Respondent testified that he had an 11th grade education, that he read adequately, that he was not intoxicated or otherwise mentally impaired when he entered the challenged pleas, and that he was represented by counsel on both occasions. He remembered the trial judge in each case asking him whether his plea was voluntary, but he said he could not remember whether he was specifically told about the rights he waived by pleading guilty. The government's evidence showed that in the 1979 proceeding, respondent signed (though he later claimed not to have read) a "Plea of Guilty" form, which stated that he understood the charges against him, the maximum punishment he faced, his constitutional rights, and that a guilty plea waived those rights. The attorney who represented respondent in the first case verified his own signature on another part of the form indicating that he had fully explained respondent's rights to him. As to the 1981 plea, respondent acknowledged signing a form that specified the charges to which he agreed to plead guilty. He also ad-25mitted that the judge had at least advised him of his right to a jury trial.Based on this evidence, the trial court denied respondent's suppression motion. Respondent then entered a conditional guilty plea on the robbery and the persistent felony offender counts, reserving the right to appeal the suppression determination. The trial court sentenced him to 5 years for robbery, enhanced to 10 because of the persistent felony offender conviction.The Kentucky Court of Appeals affirmed. It found the totality of circumstances surrounding the 1979 plea sufficient to support a finding that the plea was knowing and voluntary. It also upheld use of the 1981 conviction. The court explained that respondent's knowledge of his rights in November 1979 permitted an inference that he remained aware of them 23 months later. Respondent's testimony, moreover, indicated that his sophistication regarding his legal rights had increased substantially after his first conviction. The Supreme Court of Kentucky denied discretionary review.Respondent then filed a federal habeas petition, arguing that the Kentucky courts had erred in requiring him to adduce evidence, rather than requiring the Commonwealth affirmatively to prove the prior convictions' validity. The District Court denied the petition for essentially the same reasons given by the Kentucky Court of Appeals. Raley v. Parke, Civ. Action No. C89-0756-L(A) (WD Ky., Mar. 15, 1990). The Court of Appeals for the Sixth Circuit, however, agreed with respondent, relying on its recent decision in Dunn v. Simmons, 877 F.2d 1275 (1989), cert. denied, 494 U. S. 1061 (1990). 945 F.2d 137 (1991). Simmons held that when no transcript of the prior guilty plea proceeding exists, the prosecution has the entire burden of establishing the plea's validity, and no presumption of regularity attaches to the final judgment. 877 F. 2d, at 1277. It also held that when the prosecution seeks to demonstrate the regularity of the prior proceeding with extrarecord evidence, that evi-26dence must be "clear and convincing." Ibid. Although Simmons was decided after respondent's persistent felony offender conviction became final, the Commonwealth did not argue that Teague v. Lane, 489 U. S. 288 (1989), barred its application to this case. Cf. Collins v. Youngblood, 497 U. S. 37, 40-41 (1990) (Teague not jurisdictional).The Court of Appeals affirmed the District Court's determination with respect to the 1979 plea but reversed with respect to the 1981 plea. It declined to infer that respondent remembered his rights from 1979, reasoning that such an inference would give rise to line-drawing problems and would discriminate improperly between accused recidivists and first offenders on the basis of prior court experience. The Court of Appeals observed that because the trial court hearing took place before Simmons was decided, the Commonwealth had not yet had an opportunity to try to meet the higher standard of proof that decision imposed. Thus, rather than issue the writ of habeas corpus outright, the Court of Appeals directed the District Court to grant the writ if Kentucky did not hold a new hearing on the validity of the 1981 conviction in compliance with Simmons within 90 days. We granted certiorari. 503 U. S. 905 (1992).II AStatutes that punish recidivists more severely than first offenders have a long tradition in this country that dates back to colonial times. See, e. g., I The Acts and Resolves, Public and Private, of the Province of Massachusetts Bay 52 (Boston 1869) (1692 statute providing progressive punishments for robbery and burglary); 3 Laws of Virginia 276-278 (w. Henning ed. 1823) (1705 recidivism statute dealing with hog stealing); see also Graham v. West Virginia, 224 U. S. 616, 623 (1912). Such laws currently are in effect in all 50 States, see Department of Justice, Statutes Requiring the Use of Criminal History Record Information 17-41 (June271991) (NJC-129846), and several have been enacted by the Federal Government, as well, see, e. g., 18 U. S. C. § 924(e) (Armed Career Criminal Act); 21 U. S. C. §§ 842(c)(2)(b), 843(c), 844(a) (provisions of the Controlled Substances Act); see also United States Sentencing Commission, Guidelines Manual § 4A1.1 (Nov. 1992) (prior criminal conduct enhances criminal history for purpose of determining sentencing range).States have a valid interest in deterring and segregating habitual criminals. See Rummel v. Estelle, 445 U. S. 263, 284 (1980). We have said before that a charge under a recidivism statute does not state a separate offense, but goes to punishment only. See Oyler v. Boles, 368 U. S. 448, 452 (1962); Graham, supra, at 623-624; McDonald v. Massachusetts, 180 U. S. 311, 313 (1901). And we have repeatedly upheld recidivism statutes "against contentions that they violate constitutional strictures dealing with double jeopardy, ex post facto laws, cruel and unusual punishment, due process, equal protection, and privileges and immunities." Spencer v. Texas, 385 U. S. 554, 560 (1967) (citing Oyler, supra; Gryger v. Burke, 334 U. S. 728 (1948); Graham, supra; McDonald, supra; Moore v. Missouri, 159 U. S. 673 (1895)). But see Solem v. Helm, 463 U. S. 277 (1983) (life sentence without parole imposed under recidivism statute violated Eighth Amendment when current conviction was for passing a bad check and prior offenses were similarly minor).The States' freedom to define the types of convictions that may be used for sentence enhancement is not unlimited. In Burgett v. Texas, 389 U. S. 109 (1967), we held that uncounseled convictions cannot be used "against a person either to support guilt or enhance punishment for another offense." Id., at 115. This Court has nevertheless also expressed a willingness to uphold, under the Due Process Clause, a variety of state procedures for implementing otherwise valid recidivism statutes. See Spencer, supra (due process allows government to introduce proof of past convictions before28jury has rendered guilt determination for current offense); Oyler, supra (due process does not require advance notice that trial for substantive offense will be followed by habitualcriminal accusation). As Justice Harlan observed 25 years ago in Spencer, the Court is not "a rule-making organ for the promulgation of state rules of criminal procedure." 385 U. S., at 564. "Tolerance for a spectrum of state procedures dealing with [recidivism] is especially appropriate" given the high rate of recidivism and the diversity of approaches that States have developed for addressing it. Id., at 566. We think this reasoning remains persuasive today; studies suggest that as many as two-thirds of those arrested have prior criminal records, often from other jurisdictions. See Department of Justice, supra, at 1; see also Spencer, supra, at 566, n. 9. The narrow question we face is whether due process permits Kentucky to employ its particular burden-ofproof scheme when allowing recidivism defendants to attack previous convictions as invalid under Boykin. In our view, Kentucky's burden-shifting rule easily passes constitutional muster.BAs an initial matter, we decline to reach the broad argument advanced by petitioner and the Solicitor General that Kentucky's procedure is a fortiori constitutional because, with narrow exceptions not applicable here, due process does not require state courts to permit challenges to guilty pleas used for enhancement purposes at all. Petitioner did not make this argument below or in his petition for certiorari. We ordinarily do not reach issues not raised in the petition for certiorari, see Yee v. Escondido, 503 U. S. 519, 535 (1992), and it is unnecessary for us to determine whether States must allow recidivism defendants to challenge prior guilty pleas because Kentucky does allow such challenges. We turn, then, to the question before us.It is beyond dispute that a guilty plea must be both knowing and voluntary. See, e. g., Boykin, 395 U. S., at 242; Mc-29Carthy v. United States, 394 U. S. 459, 466 (1969). "The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U. S. 25, 31 (1970). That is so because a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination. Boykin, 395 U. S., at 243.In Boykin the Court found reversible error when a trial judge accepted a defendant's guilty plea without creating a record affirmatively showing that the plea was knowing and voluntary. Id., at 242. The Sixth Circuit thought rejection of Kentucky's burden-shifting scheme compelled by Boykin's statement that the waiver of rights resulting from a guilty plea cannot be "presume[d] ... from a silent record." Id., at 243. Kentucky favors the prosecution with only an initial presumption upon proof of the existence of a prior judgment; but because a defendant may be unable to offer rebuttal evidence, the Sixth Circuit reasoned that Kentucky's procedure improperly permits the Commonwealth to carry its burden of persuasion upon a "bare record of a conviction." Simmons, 877 F. 2d, at 1278.We see no tension between the Kentucky scheme and Boykin. Boykin involved direct review of a conviction allegedly based upon an uninformed guilty plea. Respondent, however, never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin's presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the "presumption of regularity" that attaches to final judgments, even when the question is waiver of constitutional rights. Johnson v. Zerbst, 304 U. S. 458, 464, 468 (1938). Although we are perhaps most familiar with this principle in habeas corpus actions, see, e. g., Barefoot v. Estelle, 463 U. S. 880,30887 (1983); Johnson, supra, it has long been applied equally to other forms of collateral attack, see, e. g., Voorhees v. Jackson, 10 Pet. 449, 472 (1836) (observing, in a collateral challenge to a court-ordered sale of property in an ejectment action, that "[t]here is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears"). Respondent, by definition, collaterally attacked his previous convictions; he sought to deprive them of their normal force and effect in a proceeding that had an independent purpose other than to overturn the prior judgments. See Black's Law Dictionary 261 (6th ed. 1990); see also Lewis v. United States, 445 U. S. 55, 58, 65 (1980) (challenge to uncounseled prior conviction used as predicate for subsequent conviction characterized as "collateral").There is no good reason to suspend the presumption of regularity here. This is not a case in which an extant transcript is suspiciously "silent" on the question whether the defendant waived constitutional rights. Evidently, no transcripts or other records of the earlier plea colloquies exist at all. Transcripts of guilty plea proceedings are normally made in Kentucky only if a direct appeal is taken or upon the trial judge's specific direction, Tr. of Oral Arg. 13-14, and the stenographer's notes and any tapes made of the proceedings normally are not preserved more than five years, id., at 16-17. The circumstance of a missing or nonexistent record is, we suspect, not atypical, particularly when the prior conviction is several years old. But Boykin colloquies have been required for nearly a quarter century. On collateral review, we think it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights. In this situation, Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained.31Burgett v. Texas, 389 U. S. 109 (1967), does not necessitate a different result. There the Court held that a prior conviction could not be used for sentence enhancement because the record of the earlier proceeding did not show that the defendant had waived his right to counsel. Id., at 114-115. Respondent suggests that because Burgett involved a state recidivism proceeding, it stands for the proposition that every previous conviction used to enhance punishment is "presumptively void" if waiver of a claimed constitutional right does not appear from the face of the record. Brief for Respondent 14-15. We do not read the decision so broadly. At the time the prior conviction at issue in Burgett was entered, state criminal defendants' federal constitutional right to counsel had not yet been recognized, and so it was reasonable to presume that the defendant had not waived a right he did not possess. As we have already explained, the same cannot be said about a record that, by virtue of its unavailability on collateral review, fails to show compliance with the well-established Boykin requirements.Respondent argues that imposing even a burden of production on him is fundamentally unfair because "a constitutionally protected right is in question." Brief for Respondent 15. By this he apparently refers to the Fifth and Sixth Amendment rights that a defendant waives by pleading guilty. Our precedents make clear, however, that even when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant. See, e. g., Johnson, supra, at 468-469.Respondent also contends that Kentucky's rule is unfair because it may be difficult to prove the invalidity of a conviction entered many years ago, perhaps in another jurisdiction, when records are unavailable and witnesses inaccessible. We have little doubt that serious practical difficulties will confront any party assigned an evidentiary burden in such32circumstances. See Loper v. Beto, 405 U. S. 473, 500-501 (1972) (REHNQUIST, J., dissenting). "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." Medina v. California, 505 U. S. 437, 451 (1992). When a defendant challenges the validity of a previous guilty plea, the government will not invariably, or perhaps even usually, have superior access to evidence. Indeed, when the plea was entered in another jurisdiction, the defendant may be the only witness who was actually present at the earlier proceeding. If raising a Boykin claim and pointing to a missing record suffices to place the entire burden of proof on the government, the prosecution will not infrequently be forced to expend considerable effort and expense attempting to reconstruct records from farfiung States where procedures are unfamiliar and memories unreliable. To the extent that the government fails to carry its burden due to the staleness or unavailability of evidence, of course, its legitimate interest in differentially punishing repeat offenders is compromised. In light of the relative positions of the defendant and the prosecution in recidivism proceedings, we cannot say that it is fundamentally unfair to place at least a burden of production on the defendant.Respondent cites no historical tradition or contemporary practice indicating that Kentucky's scheme violates due process. See Medina, supra, at 446, 447. For much of our history, it appears that state courts altogether prohibited defendants in recidivism proceedings from challenging prior convictions as erroneous, as opposed to void for lack of jurisdiction. See, e. g., Kelly v. People, 115 Ill. 583, 588, 4 N. E. 644, 645-646 (1886); accord, State v. Webb, 36 N. D. 235, 243, 162 N. W. 358, 361 (1917). In recent years state courts have permitted various challenges to prior convictions and have allocated proof burdens differently. Some, like the Sixth Circuit, evidently place the full burden on the prosecution.33See, e. g., State v. Elling, 11 Ohio Misc. 2d 13, 15,463 N. E. 2d 668, 670 (Com. PI. 1983) (challenge to allegedly uncounseled conviction); State v. Hennings, 100 Wash. 2d 379, 382, 670 P. 2d 256, 257 (1983) (challenge to guilty plea). Others assign the entire burden to the defendant once the government has established the fact of conviction. See, e. g., People v. Harris, 61 N. Y. 2d 9, 15, 459 N. E. 2d 170, 172 (1983) (guilty plea); see also D. C. Code Ann. §23-111(c)(2) (1989); N. C. Gen. Stat. § 15A-980(c) (1988). Several, like Kentucky, take a middle position that requires the defendant to produce evidence of invalidity once the fact of conviction is proved but that shifts the burden back to the prosecution once the defendant satisfies his burden of production. See, e. g., Watkins v. People, 655 P. 2d 834, 837 (Colo. 1982) (guilty plea); State v. O'Neil, 91 N. M. 727, 729, 580 P. 2d 495,497 (Ct. App. 1978) (uncounseled conviction); State v. Triptow, 770 P. 2d 146, 149 (Utah 1989) (same). This range of contemporary state practice certainly does not suggest that allocating some burden to the defendant is fundamentally unfair.Interpretations of analogous federal laws by the Courts of Appeals point even more strongly away from respondent's position. Under the Armed Career Criminal Act, 18 U. S. C. § 924(e), Courts of Appeals have placed on the defendant the entire burden of proving the invalidity of a prior conviction based on a guilty plea. See, e. g., United States v. Gallman, 907 F.2d 639, 643-645 (CA7 1990), cert. denied, 499 U. S. 908 (1991); accord, United States v. Paleo, 967 F.2d 7, 13 (CA1 1992); United States v. Day, 949 F.2d 973, 982-983 (CA8 1991); United States v. Ruo, 943 F.2d 1274, 1276 (CA111991). Courts of Appeals have also allocated the full burden of proof to defendants claiming that an invalid guilty plea renders a prior conviction unavailable for purposes of calculating criminal history under the Sentencing Guidelines. See, e. g., United States v. Boyer, 931 F.2d 1201, 1204-1205 (CA7), cert. denied, 502 U. S. 873 (1991). And the text of the Comprehensive Drug Abuse Prevention and Control Act of 197034itself clearly provides that a defendant raising a constitutional challenge to a prior conviction used for sentence enhancement bears the burden of proof. See 21 U. S. C. § 851(c)(2).In sum, neither our precedents nor historical or contemporary practice compel the conclusion that Kentucky's burdenshifting rule violates due process, and we cannot say that the rule is fundamentally unfair in its operation. Accordingly, we hold that the Due Process Clause permits a State to impose a burden of production on a recidivism defendant who challenges the validity of a prior conviction under Boykin.CPetitioner also challenges the Sixth Circuit's holding that the prosecution's extrarecord evidence must be clear and convincing. In petitioner's view, the preponderance of the evidence standard applicable to constitutional claims raised on federal habeas, see, e. g., Johnson, 304 U. S., at 468-469, is appropriate. The Sixth Circuit based its conclusion to the contrary on Boykin, observing that an "extraordinary standard of persuasion" is justified "in view of misgivings inherent in 'collateral proceedings that seek to probe murky memories.'" Simmons, 877 F. 2d, at 1277 (quoting Boykin, 395 U. S., at 244); see also Roddy v. Black, 516 F.2d 1380, 1384 (CA6), cert. denied, 423 U. S. 917 (1975). Respondent, in support of the Sixth Circuit's heightened standard, reiterates his arguments regarding the importance of the constitutional rights at stake and the government's position relative to the defendant's.Our analysis of this question parallels our discussion of the proper allocation of proof burdens. Boykin did not address the question of measure of proof, and even if it had, it would not necessarily follow that the same standard should apply in recidivism proceedings. We find respondent's arguments no more persuasive here than they were in the allocation context. Given the difficulties of proof for both sides, it is35not obvious to us that, once a State assigns the government the burden of persuasion, requiring anything less than clear and convincing extrinsic evidence is fundamentally unfair. Again, we are pointed to no historical tradition setting the standard of proof at this particular level. And contemporary practice is far from uniform; state courts that impose the ultimate burden on the government appear to demand proof ranging from preponderance, see Triptow, supra, at 149; Watkins, supra, at 837, to beyond a reasonable doubt, see Hennings, supra, at 382, 670 P. 2d, at 257. We are therefore unprepared to say that when the government carries the ultimate burden of persuasion and no transcript of the prior proceeding exists, the Due Process Clause requires the Commonwealth to prove the validity of the conviction by clear and convincing extrarecord evidence.IIIRespondent no longer challenges the validity of his 1979 plea. Thus, the final issue before us is whether the Kentucky courts properly concluded that respondent's 1981 guilty plea was valid. For the proper standard of review, petitioner cites Marshall v. Lonberger, 459 U. S. 422 (1983), a case quite similar to this one. In Lonberger, the state defendant challenged a prior conviction used to obtain a death sentence on the ground that the conviction was based on a guilty plea invalid under Boykin. We held that although "the governing standard as to whether a plea of guilty is voluntary for purposes of the Federal Constitution is a question of federal law," 459 U. S., at 431, questions of historical fact, including inferences properly drawn from such facts, are in this context entitled to the presumption of correctness accorded state court factual findings under 28 U. S. C. § 2254(d), Lonberger, supra, at 431-432; cf. Miller v. Fenton, 474 U. S. 104, 113, 115, 117 (1985) (holding that the question whether a confession is voluntary is subject to independent federal determination, expressly distinguishing Lonberger).36We said that the federal habeas courts in Lonberger were bound to respect the contents of the record of the prior plea proceeding, the state trial court's findings that the defendant was "an intelligent individual, well experienced in the criminal processes and well represented at all stages of the proceedings by competent and capable counsel," the similar conclusions of the state appellate court, and "inferences fairly deducible from these facts." Lonberger, supra, at 435 (internal quotation marks omitted); see also Sumner v. Mata, 449 U. S. 539, 545-547 (1981) (deference owed to findings of both state trial and appellate courts).We note that petitioner's theory of the case, which we have declined to consider, suggests a different standard. If Kentucky's procedure is indeed not constitutionally mandated, the Kentucky courts' determination that respondent understood his rights when he entered his plea would seem to be reviewable at most for sufficiency of the evidence under Jackson v. Virginia, 443 U. S. 307 (1979). There is no need to choose between the two standards of review in this case, however, because we are convinced that the Kentucky courts' factual determinations are "fairly supported by the record" within the meaning of 28 U. S. C. § 2254(d)(8).The Kentucky Court of Appeals, reviewing the trial court's decision not to suppress the 1981 conviction, observed that respondent had an 11th grade education, could read adequately, was represented by counsel in the 1981 proceedings, and was in no way mentally impaired when he entered his plea. The court noted that respondent had signed a form specifying the charges to which he agreed to plead guilty. And it found that he had been fully advised of his rights in 1979. Respondent does not now dispute those determinations. The Kentucky Court of Appeals inferred that respondent remained aware in 1981 of the rights of which he was advised in 1979. Supporting that inference was the court's determination, based on respondent's testimony at the trial court hearing, that his "knowledge and sophistica-37tion regarding his rights under our judicial system increased substantially after his first conviction." App. to Pet. for Cert. A32. Respondent knew, for example, the difference between first- and second-degree persistent felony offender charges, and he knew the sentencing and parole requirements for both offenses. "[H]e indicated that the evidence against him and his lack of a strong defense had persuaded him to accept the Commonwealth's offered plea bargain in return for a recommendation that he be given a minimum sentence. In fact, he voluntarily and knowingly chose not to risk the uncertainties of a jury trial." Id., at 32-33.We have previously treated evidence of a defendant's prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights, see, e. g., Lonberger, supra, at 437; Gryger v. Burke, 334 U. S., at 730, and we think the Kentucky Court of Appeals fairly inferred that respondent understood the full consequences of his 1981 plea. That, combined with respondent's admission that he understood the charges against him and his self-serving testimony that he simply could not remember whether the trial judge advised him of other rights, satisfied every court that has considered the issue that the government carried its burden of persuasion under the Kentucky framework. We cannot say that this was error.The judgment of the Court of Appeals for the Sixth Circuit is accordinglyReversed

OCTOBER TERM, 1992SyllabusPARKE, WARDEN v. RALEYCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 91-719. Argued October 5, 1992-Decided December 1,1992In 1986, respondent Raley was charged with robbery and with being a persistent felony offender under a Kentucky statute that enhances sentences for repeat felons. He moved to suppress the 1979 and 1981 guilty pleas that formed the basis for the latter charge, claiming that they were invalid because the records contained no transcripts of the proceedings and hence did not affirmatively show, as required by Boykin v. Alabama, 395 U. S. 238, that the pleas were knowing and voluntary. Under the state procedures governing the hearing on his motion, the ultimate burden of persuasion rested with the government, but a presumption of regularity attached to the judgments once the Commonwealth proved their existence, and the burden then shifted to Raley to produce evidence of their invalidity. As to the 1981 plea, Raley testified that, among other things, he signed a form specifying the charges to which he agreed to plead guilty and the judge at least advised him of his right to a jury trial. His suppression motion was denied, he was convicted, and he appealed. The Kentucky Court of Appeals found that Raley was fully informed of his rights in 1979 and inferred that he remained aware of them in 1981. Raley then filed a federal habeas petition. The District Court rejected his argument that the state courts had erred in shifting the burden of production to him, but the Court of Appeals reversed as to the 1981 plea, holding, inter alia, that where no transcript is available, the prosecution has the entire burden of establishing a plea's validity by clear and convincing evidence and no presumption of regularity attaches to the prior judgment.Held:1. Kentucky's burden-of-proof scheme is permissible under the Due Process Clause. Pp. 26-35.(a) "Tolerance for a spectrum of state procedures dealing with [recidivism] is especially appropriate" given the high rate of recidivism and the diversity of approaches that States have developed for addressing it. Spencer v. Texas, 385 U. S. 554, 566. Pp. 26-28.(b) The deeply rooted presumption of regularity that attaches to final judgments would be improperly ignored if the presumption of invalidity applied in Boykin to cases on direct review were to be imported to recidivism proceedings, in which final judgments are collaterally at-21tacked. In the absence of an allegation of government misconduct, it cannot be presumed from the mere unavailability of a transcript on collateral review that a defendant was not advised of his rights. Burgett v. Texas, 389 U. S. 109, distinguished. The presumption of regularity makes it appropriate to assign a proof burden to the defendant even when a collateral attack rests on constitutional grounds. And the difficulty of proving the invalidity of convictions entered many years ago does not make it fundamentally unfair to place a burden of production on the defendant, since the government may not have superior access to evidence. Nor is Raley's position supported by the state courts' historical treatment of defendants in recidivism proceedings, the wide range of contemporary state practices regarding the allocation of the proof burden, or interpretations of analogous federal laws, see, e. g., United States v. Gallman, 907 F.2d 639, 643-645. Pp. 28-34.(c) Due process does not require the Commonwealth to prove the validity of a prior conviction by clear and convincing extrarecord evidence. Even if Boykin had addressed the question of measure of proof, it would not necessarily follow that the same standard should apply in recidivism proceedings. Given the difficulties of proof for both sides, it is not fundamentally unfair to require something less than clear and convincing evidence when the government is assigned the burden of persuasion. There is no historical tradition setting the standard at this particular level, and contemporary practice is far from uniform. Pp.34-35.2. The Kentucky courts properly concluded that Raley's 1981 guilty plea was valid. Their factual determinations are entitled to the presumption of correctness accorded state court factual findings under 28 U. S. C. §2254(d). Marshall v. Lonberger, 459 U. S. 422, 431-432. The Kentucky Court of Appeals fairly inferred from Raley's 1979 experience that he understood the consequences of his 1981 plea. See, e. g., id., at 437. That, combined with his admission that he understood the charges against him and his self-serving testimony that he could not remember whether the trial judge advised him of other rights, satisfied every court that has considered the issue that the government carried its burden of persuasion under the Kentucky scheme. It cannot be said that this was error. Pp.35-37.945 F.2d 137, reversed.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, STEVENS, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 37.22Full Text of Opinion

1976_75-1344

MR. JUSTICE MARSHALL delivered the opinion of the Court.Petitioner was convicted of possessing a firearm in violation of Title VII of the Omnibus Crime Control and Safe Streets Page 431 U. S. 564 Act of 1968 (Omnibus Crime Control Act), 18 U.S.C.App. §§ 1201-1203. The statute provides, in pertinent part:"Any person who -- ""(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony . . .""* * * *" "and who receives, possesses, or transports in commerce or affecting commerce . . . any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both."18 U.S.C.App. § 1202(a). [Footnote 1] The issue in this case is whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce.IIn 1972, petitioner pleaded guilty in the Circuit Court of Fairfax County, Va. to the felony of possession of narcotics with intent to distribute. A year later, in August, 1973, law Page 431 U. S. 565 enforcement officials, in the execution of a search warrant for narcotics, seized four firearms from petitioner's bedroom. Petitioner was subsequently charged with both receipt and possession of the four firearms in violation of 18 U.S.C.App. § 1202(a)(1).In a jury trial in the Eastern District of Virginia, the Government offered evidence to show that all of the seized weapons had traveled in interstate commerce. All the dates established for such interstate travel were prior to the date petitioner became a convicted felon. [Footnote 2] The Government made no attempt to prove that the petitioner acquired these weapons after his conviction. [Footnote 3] Holding such proof necessary for a receipt conviction, the judge, at the close of the Government's case, granted petitioner's motion for a judgment of acquittal on that part of the indictment charging receipt.Petitioner's defense to the possession charge was two-fold. As a matter of fact, he contended that, by the time of his conviction, he no longer possessed the firearms. His claim was that, to avoid violating this statute, he had transferred these guns to his wife prior to pleading guilty to the narcotics felony. Secondly, he argued that, as a matter of law, proof that the Page 431 U. S. 566 guns had at some time traveled in interstate commerce did not provide an adequate nexus between the possession and commerce. In furtherance of this defense, petitioner requested that the jury be instructed as follows:"In order for the defendant to be found guilty of the crime with which he is charged, it is incumbent upon the Government to demonstrate a nexus between the 'possession' of the firearms and interstate commerce. For example, a person 'possesses' in commerce or affecting commerce if at the time of the offense the firearms were moving interstate or on an interstate facility, or if the 'possession' affected commerce. It is not enough that the Government merely show that the firearms at some time had traveled in interstate commerce. . . ."App. 1213. The judge rejected this instruction. Instead he informed the"The government may meet its burden of proving a connection between commerce and the possession of a firearm by a convicted felon if it is demonstrated that the firearm possessed by a convicted felon had previously traveled in interstate commerce.""* * * *" "It is not necessary that the government prove that the defendant purchased the gun in some state other than that where he was found with it or that he carried it across the state line, nor must the government prove who did purchase the gun."Id. at 14.Petitioner was found guilty, and he appealed. The Court of Appeals for the Fourth Circuit affirmed. 539 F.2d 331. It held that the interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm petitioner possessed had previously traveled in interstate commerce. Page 431 U. S. 567 In view of the split among the Circuits on this issue, [Footnote 4] we granted certiorari. 429 U.S. 815 (1976). [Footnote 5] We affirm.IIOur first encounter with Title VII of the Omnibus Crime Control Act came in United States v. Bass, 404 U. S. 336 (1971). There, we had to decide whether the statutory phrase "in commerce or affecting commerce" in § 1202(a) applied to "possesses" and "receives," as well as to "transports." We noted that the statute was not a model of clarity. On the one hand, we found "significant support" in the legislative history for the contention that the statute "reaches the mere possession of guns without any showing of an interstate commerce nexus" in individual cases. 404 U.S. at 404 U. S. 345-346. On the other hand, we could not ignore Congress' inserting the phrase "in commerce or affecting commerce" in the statute. Id. at 404 U. S. 345. The phrase clearly modified "transport" Page 431 U. S. 568 and we could find no sensible explanation for requiring a nexus only for transport. Id. at 404 U. S. 340. Faced with this ambiguity, [Footnote 6] the Court adopted the narrower reading that the phrase modified all three offenses. We found this result dictated by two principles of statutory interpretation: first, that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity," Rewis v. United States, 401 U. S. 808, 401 U. S. 812 (1971), and second, that "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance," Bass, supra at 404 U. S. 349. Since, "[a]bsent proof of some interstate commerce nexus in each case, § 1202(a) dramatically intrudes upon traditional state criminal jurisdiction," 404 U.S. at 404 U. S. 350, we were unwilling to conclude, without a "clearer statement of intention," ibid., that Congress meant to dispense entirely with a nexus requirement in individual cases.It was unnecessary in Bass for us to decide what would constitute an adequate nexus with commerce, as the Government had made no attempt to show any nexus at all. While we did suggest some possibilities, [Footnote 7] the present case presents the first opportunity to focus on the question with the benefit of full briefing and argument.The Government's position is that, to establish a nexus with interstate commerce, it need prove only that the firearm possessed by the convicted felon traveled at some time in interstate commerce. The petitioner contends, however, that the nexus must be "contemporaneous" with the possession, that the statute proscribes "only crimes with a present connection to commerce." Brief for Petitioner 9. He suggests that, at the time of the offense, the possessor must be engaging Page 431 U. S. 569 in commerce or must be carrying the gun at an interstate facility. Tr. of Oral Arg. 11. At oral argument, he suggested an alternative theory -- that one can be convicted for possession without any proof of a present connection with commerce so long as the firearm was acquired after conviction. Id. at 15.In our effort to resolve the dispute, we turn first to the text of the statute. Petitioner contends that the meaning can be readily determined from the face of the statute, at least when it is contrasted with Title IV of the Omnibus Crime Control Act, another title dealing with gun control. [Footnote 8] He points to one section of Title IV, 18 U.S.C. § 922(h), arguing, in reliance on our decision in Barrett v. United States, 423 U. S. 212 (1976), that this section shows how Congress can, if it chooses, specify an offense based on firearms that have previously traveled in commerce. In § 922(h), Congress employed the present perfect tense, as it prohibited a convicted felon from receiving a firearm "which has been shipped or transported in interstate or foreign commerce." This choice of tense led us to conclude in Barrett that Congress clearly "denot[ed] an act that has been completed." 423 U.S. at 423 U. S. 216. Thus, petitioner argues, since Congress knows how to specify completed transactions, its failure to use that language in the present statute must mean that it wanted to reach only ongoing transactions.The essential difficulty with this argument is that it is not very meaningful to compare Title VII with Title IV. See Bass, 404 U.S. at 404 U. S. 344. Title VII was a last-minute amendment to the Omnibus Crime Control Act enacted hastily, with little discussion and no hearings. [Footnote 9] The statute, as we noted in Page 431 U. S. 570 Bass, is not the product of model legislative deliberation or draftsmanship. Id. at 339, 344. Title IV, on the other hand, is a carefully constructed package of gun control legislation. It is obvious that the tenses used throughout Title IV were chosen with care. For example, in addition to the prohibition in § 922(h) on receipt by convicted felons, Congress also made it illegal in § 922(g) for such person to "ship or transport any firearm or ammunition in interstate or foreign commerce." In § 922(j), Congress made it unlawful for"any person to receive, conceal, store, barter, sell or dispose of any stolen firearm . . . which is moving as, which is part of, or which constitutes, interstate or foreign commerce."And § 922(k) makes it illegal for"any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had [its] serial number removed, obliterated or altered."In view of such fine nuances in the tenses employed in the statute, the Court could easily conclude in Barrett that "Congress knew the significance and meaning of the language it employed." 423 U.S. at 423 U. S. 217. The language it chose was "without ambiguity." Id. at 423 U. S. 216. "Had Congress intended to confine § 922(h) to direct interstate receipts, it would have so provided, just as it did in other sections of [Title IV]." Id. at 423 U. S. 217.In the present case, by contrast, Congress' choice of language was ambiguous, at best. While it is true that Congress did not choose the precise language used in § 922(h) to indicate that a present nexus with commerce is not required, neither did it use the language of § 922(j) to indicate that the gun must have a contemporaneous connection with commerce at the time of the offense. Thus, while petitioner is correct Page 431 U. S. 571 in noting that Congress has the skills to be precise, the fact that it did not employ those skills here helps us not at all.While Congress' choice of tenses is not very revealing, its findings and its inclusion of the phrase "affecting commerce" are somewhat more helpful. In the findings at the beginning of Title VII, Congress expressly declared that"the receipt, possession, or transportation of a firearm by felons . . . constitutes . . . a burden on commerce or threat affecting the free flow of commerce,"18 U.S.C.App. § 1201(1). [Footnote 10] It then implemented those findings by prohibiting possessions "in commerce and affecting commerce." As we have previously observed, Congress is aware of the"distinction between legislation limited to activities 'in commerce' and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce."United States v. American Bldg. Maintenance Industries, 422 U. S. 271, 422 U. S. 280 (1975); see also NLRB v. Reliance Fuel Corp., 371 U. S. 224, 371 U. S. 226 (1963). Indeed, that awareness was explicitly demonstrated here. In arguing that Congress could, Page 431 U. S. 572 consistent with the Constitution, "outlaw the mere possession of weapons," Senator Long, in introducing Title VII, pointed to the fact that"many of the items and transactions reached by the broad swath of the Civil Rights Act of 1964 were reached by virtue of the power of Congress to regulate matters affecting commerce, not just to regulate interstate commerce itself."114 Cong.Rec. 13868 (1968). He advised a similar reliance on the power to regulate matters affecting commerce and urged that"Congress simply [find] that the possession of these weapons by the wrong kind of people is either a burden on commerce or a threat that affects the free flow of commerce."Id. at 13869. While, in Bass, we noted that we could not be sure that Congress meant to do away entirely with a nexus requirement, it does seem apparent that, in implementing these findings by prohibiting both possessions in commerce and those affecting commerce, Congress must have meant more than to outlaw simply those possessions that occur in commerce or in interstate facilities. And we see no basis for contending that a weapon acquired after a conviction affects commerce differently from one acquired before and retained.The legislative history in its entirety, while brief, further supports the view that Congress sought to rule broadly -- to keep guns out of the hands of those who have demonstrated that "they may not be trusted to possess a firearm without becoming a threat to society." Id. at 14773. There is simply no indication of any concern with either the movement of the gun or the possessor or with the time of acquisition.In introducing the amendment, Senator Long stated:"I have prepared an amendment which I will offer at an appropriate time, simply setting forth the fact that anybody who has been convicted of a felony . . . is not permitted to possess a firearm. . . . ""It might be well to analyze, for a moment, the logic involved. When a man has been convicted of a felony, Page 431 U. S. 573 unless -- as this bill sets forth -- he has been expressly pardoned by the President and the pardon states that the person is to be permitted to possess firearms in the future, that man would have no right to possess firearms. He would be punished criminally if he is found in possession of them.""* * * *" "It seems to me that this simply strikes at the possession of firearms by the wrong kind of people. It avoids the problem of imposing on an honest hardware store owner the burden of keeping a lot of records and trying to keep up with the ultimate disposition of weapons sold. It places the burden and the punishment on the kind of people who have no business possessing firearms in the event they come into possession of them."Id. at 13868-13869. The purpose of the amendment was to complement Title IV Id. at 14774; see also id. at 16286. Senator Long noted:"Of all the gun bills that have been suggested, debated, discussed and considered, none except this Title VII attempts to bar possession of a firearm from persons whose prior behaviors have established their violent tendencies. . . ."". . . Under Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of [sic] the right to possess a firearm in the future. . . .""* * * *" "Despite all that has been said about the need for controlling firearms in this Country, no other amendment heretofore offered would get at the Oswalds or the Galts. They are the types of people at which Title VII is aimed."Id. at 14773-14774. Page 431 U. S. 574 He proposed this amendment to remedy what he thought was an erroneous conception of the drafters of Title IV that there was "a constitutional doubt that the Federal Government could outlaw the mere possession of weapons." Id. at 13868.The intent to outlaw possession without regard to movement and to apply it to a case such as petitioner's could not have been more clearly revealed than in a colloquy between Senators Long and McClellan:"Mr. McClellan. I have not had an opportunity to study the amendment. . . . The thought that occurred to me, as the Senator explained it, is that, if a man had been in the penitentiary, had been a felon, and had been pardoned, without any condition in his pardon to which the able Senator referred, granting him the right to bear arms, could that man own a shotgun for the purpose of hunting?""Mr. Long of Louisiana. No, he could not. He could own it, but he could not possess it.""Mr. McClellan. I beg the Senator's pardon?""Mr. Long of Louisiana. This amendment does not seek to do anything about who owns a firearm. He could not carry it around; he could not have it.""Mr. McClellan. Could he have it in his home""Mr. Long of Louisiana. No, he could not."Id. at 14774 (emphasis added). It was after this colloquy that Senator McClellan suggested that the amendment be taken to conference for "further thought." Ibid. While that appeared to be its destination, the House, after Senate passage of the bill, defeated a motion to go to conference and adopted the entire Senate bill, including Title VII, without alteration. Id. at 16077-16078, 16299-16300. Title VII thus became law without modification. Page 431 U. S. 575It seems apparent from the foregoing that the purpose of Title VII was to proscribe mere possession, but that there was some concern about the constitutionality of such a statute. It was that observed ambivalence that made us unwilling in Bass to find the clear intent necessary to conclude that Congress meant to dispense with a nexus requirement entirely. However, we see no indication that Congress intended to require any more than the minimal nexus that the firearm have been, at some time, in interstate commerce. [Footnote 11] In particular, we find no support for petitioner's theories.Initially, we note our difficulty in fully comprehending petitioner's conception of a nexus with commerce. In his view, if an individual purchases a gun before his conviction, the fact that the gun once traveled in commerce does not provide an adequate nexus. It is necessary, in addition, that the person also carry it in an interstate facility. If, however, one purchases the same gun from the same dealer one day after the conviction, as opposed to one day before, somehow the nexus magically appears, regardless of whether the purchaser carries the gun in any particular place. Such an interpretation strains credulity. We find no evidence in either the language or the legislative history for such a construction. [Footnote 12] Page 431 U. S. 576More significantly, these theories create serious loopholes in the congressional plan to "make it unlawful for a firearm . . . to be in the possession of a convicted felon." 114 Cong.Rec. 14773 (1968). A person who obtained a firearm prior to his conviction can retain it forever so long as he is not caught with it in an interstate facility. Indeed, petitioner's interpretation allows an individual to go out in the period between his arrest and conviction and purchase and stockpile weapons with impunity. In addition, petitioner's theories would significantly impede enforcement efforts. Those who do acquire guns after their conviction obviously do so surreptitiously, and, as petitioner concedes, Tr. of Oral Arg. 19, it is very difficult as a practical matter to prove that such possession began after the possessor's felony conviction.Petitioner responds that the Government's reading of the statute fails to give effect to all three terms of the statute -- receive, possess, transport. He argues that someone guilty of receipt or transport will necessarily be guilty of possession, and that, therefore, there was no need to include the other two offenses in the statute. While this contention is not frivolous, [Footnote 13] the fact is that petitioner's theory is similarly vulnerable. By his proposed definitions, there are essentially only two crimes -- receipt and transport. The possessor who acquires the weapon after his conviction is guilty of receipt, and the one who is carrying the gun in commerce or at an interstate Page 431 U. S. 577 facility presumably is guilty of transporting. [Footnote 14] Thus, the definitions offered by both sides fail to give real substance to all three terms. The difference, however, is that the Government's definition captures the essence of Congress' intent, striking at the possession of weapons by people "who have no business possessing [them]." 114 Cong.Rec. 13869 (1968). Petitioner's version, on the other hand, fails completely to fulfill the congressional purpose. It virtually eliminates the one offense on which Congress focused in enacting the law.Finally, petitioner seeks to invoke the two principles of statutory construction relied on in Bass -- lenity in construing criminal statutes and caution where the federal-state balance is implicated. Petitioner, however, overlooks the fact that we did not turn to these guides in Bass until we had concluded that, "[a]fter seizing every thing from which aid can be derived,'. . . we are left with an ambiguous statute." 404 U.S. at 404 U. S. 347. The principles are applicable only when we are uncertain about the statute's meaning, and are not to be used "in complete disregard of the purpose of the legislature." United States v. Bramblett, 348 U. S. 503, 348 U. S. 510 (1955). Here, the intent of Congress is clear. We do not face the conflicting pull between the text and the history that confronted us in Bass. In this case, the history is unambiguous, and the text consistent with it. Congress sought to reach possessions broadly, with little concern for when the nexus with commerce occurred. Indeed, it was a close question in Bass whether § 1202(a) even required proof of any nexus at all in individual cases. The only reason we concluded it did was because it was not "plainly and unmistakably" clear that it did not. 404 U.S. at 404 U. S. 348. But there is no question that Congress intended no more than a minimal nexus requirement. Page 431 U. S. 578Since the District Court and the Court of Appeals employed the proper standard, we affirm the conviction of petitioner.It is so ordered

U.S. Supreme CourtScarborough v. United States, 431 U.S. 563 (1977)Scarborough v. United StatesNo. 75-1344Argued March 2, 1977Decided June 6, 1977431 U.S. 563SyllabusIn a prosecution for possession of a firearm in violation of the provision of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.App. § 1202(a), making it a crime for a convicted felon to possess "in commerce or affecting commerce" any firearm, proof that the possessed firearm previously traveled at some time in interstate commerce held sufficient to satisfy the statutorily required nexus between possession and commerce. This is so, where, as in this case, the firearm in question traveled in interstate commerce before the accused became a convicted felon; the nexus need not be "contemporaneous" with the possession. Both the text and legislative history of the statute show a congressional intent to require no more than the minimal nexus that the firearm have been, at some time, in interstate commerce and to outlaw possession broadly, with little concern for when the nexus with commerce occurred. Pp. 431 U. S. 567-577.539 F.2d 331, affirmed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEWART, J., filed a dissenting opinion, post, p. 431 U. S. 578. REHNQUIST, J., took no part in the consideration or decision of the case.

1987_86-594

JUSTICE BRENNAN delivered the opinion of the Court.The question to be decided in this case is whether a federal court has authority to review a decision of the National Labor Relations Board's General Counsel dismissing an unfair labor practice complaint pursuant to an informal settlement in which the charging party refused to join. We hold that such a dismissal is not subject to judicial review under either the amended National Labor Relations Act or the Administrative Procedure Act.IIn August, 1984, respondent, the United Food Workers, filed unfair labor practice charges with the Pittsburgh regional Page 484 U. S. 115 office of the National Labor Relations Board (Board). The charges alleged that Charley Brothers, Inc., the owner of several grocery stores, and the United Steelworkers Union (Steelworkers), had committed an unfair labor practice by bargaining for and executing a collective bargaining agreement for a Charley Brothers store where the Steelworkers did not represent an uncoerced majority of the employees. The Regional Director duly investigated the charges, and entered into settlement negotiations with Charley Brothers and the Steelworkers. No agreement was reached, and the Regional Director filed a formal complaint substantially incorporating respondent's charges.On September 24, 1984, Vic's Market's, Inc. (Vic's), bought the relevant store, and the Regional Director filed a second complaint that reflected this fact. A hearing on the complaints was scheduled for December 4, 1984. However, shortly before the hearing was to begin, Vic's, Charley Brothers, the Steelworkers, and the Regional Director came to a tentative settlement agreement. The agreement called for the charged parties to take certain remedial action in return for dismissal of the complaint, but they were not required to admit that they had committed any unfair labor practice. [Footnote 1] The Regional Director invited respondent to join Page 484 U. S. 116 the agreement, but respondent refused, citing a number of purported deficiencies. [Footnote 2]Eventually, the settlement was entered into by all parties except respondent, who, as permitted by Board regulations, challenged the Regional Director's action before the General Counsel. The General Counsel determined that there was no need for an evidentiary hearing, and sustained the settlement. Respondent then sought review in the United States Court of Appeals for the Third Circuit.The Board argued that the petition for review should be dismissed on the ground that the court lacked jurisdiction to review an informal settlement that did not result in an order of the Board, and that was entered into before hearings began. Alternatively, the Board argued that the settlement should be sustained. The Court of Appeals, considering itself bound by its own precedent, [Footnote 3] concluded that it had jurisdiction, and, on the merits, held that the complaint should not have been dismissed without an evidentiary hearing. 788 F.2d 178 (1986). We granted the Board's petition for a writ Page 484 U. S. 117 of certiorari to resolve a conflict among the Courts of Appeals. [Footnote 4] 479 U.S. 1029 (1987). We now reverse.IIPetitioners argue that the courts of appeals have no jurisdiction under the National Labor Relations Act (NLRA) to review settlement decisions of the General Counsel that do not result in Board orders and that are entered into before the commencement of hearings on the complaint. Respondent asserts two grounds for jurisdiction. The first is that all settlements occurring after a complaint is filed must be approved by the Board. Because final orders of the Board are judicially reviewable under § 10(f) of the NLRA, 49 Stat. 455, as amended, 29 U.S.C. § 160(f), respondent maintains that the courts of appeals have jurisdiction to review settlements. Alternatively, respondent argues that, because the General Counsel acts "on behalf of the Board," his or her decisions are subject to judicial review as if they were orders "of the Board." Neither of respondent's submissions persuades us.AThe NLRA, as originally enacted, granted the Board plenary authority over all aspects of unfair labor practice disputes: the Board controlled not only the filing of complaints, but their prosecution and adjudication. The Labor Management Relations Act, 1947 (LMRA), 61 Stat. 136, altered this structure.One of the major goals of the LMRA was to divide the old Board's prosecutorial and adjudicatory functions between Page 484 U. S. 118 two entities. [Footnote 5] The House passed a bill that would have created a separate agency, known as the "office of Administrator of the National Labor Relations Act," to prosecute unfair labor practice complaints. [Footnote 6] Under the House bill, the Board would have been retained to adjudicate the disputes. The Conference Committee did not go so far as to create a new agency. It did, though, determine that the General Counsel of the Board should be independent of the Board's supervision and review. To this end, the General Counsel is appointed by the President, with the advice and consent of the Senate, and is the"final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints . . . and in respect of the prosecution of such complaints before the Board. [Footnote 7]"29 U.S.C. § 153(d).The methods and procedures for the resolution of unfair labor practice charges are set out in statutes and in regulations promulgated by the Board pursuant to congressional authority. § 156. A union, employer, or employee may bring an unfair labor practice charge to a regional office. Until such a charge is brought, the Board may take no enforcement action. NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 421 U. S. 156 (1975). Once a charge is brought and investigated, the regional director may, in his discretion, dismiss it. Page 484 U. S. 119 Should this occur, the charging party may appeal to the General Counsel, but not to the Board. 29 CFR § 101.6 (1987). [Footnote 8] Alternatively, the regional director may enter into an "informal settlement" agreement with the charged party. Such an agreement provides that the charged party will take or refrain from taking certain action, in return for which the regional director agrees not to file a complaint. If the charging party refuses to consent to this informal agreement, it may appeal to the General Counsel, but again, there is no provision for review by the Board. § 101.7. [Footnote 9]If the regional director concludes that the charges have merit, and if no informal settlement is reached, he may issue a complaint. Once a complaint issues, it may be disposed of by withdrawal before hearing, settlement, or formal adjudication.The regional director is authorized to withdraw a complaint on his own motion at any time before the hearing. Such a withdrawal may be appealed to the General Counsel, but no Board review is available. [Footnote 10] Page 484 U. S. 120If the complaint is settled before the hearing, the disposition may take one of several forms. "Formal settlement" requires Board approval, and is accompanied by the charged party's agreement to a remedial Board order, and usually consent to the entry of an enforcement order in the court of appeals. § 101.9(b)(1). [Footnote 11] "Informal settlement" is similar to the precomplaint settlement already discussed. The only difference is that, rather than refraining from filing a complaint, the regional director dismisses the complaint without prejudice to reinstatement should the charged party not fulfill its part of the agreement. § 101.9(b)(2). [Footnote 12]Because a Board order is part of all formal settlements, Board approval is required before such an agreement may be executed. The applicable regulations expressly allow an opportunity for a nonconsenting party to appeal to the General Counsel, and from there to the Board. §§ 101.9(c)(1) and (2). [Footnote 13] Ultimately, judicial review of the Board order is Page 484 U. S. 121 available. 29 U.S.C. § 160(f). If the prehearing settlement is informal, an appeal is permitted to the General Counsel by a nonjoining party, but there is no provision for Board review. 29 CFR § 101.9(c)(3) (1987). [Footnote 14]Once the hearing on the complaint begins, the Board's regulations do not permit the General Counsel to enter into an unreviewable settlement agreement, even if it is "informal." Rather, a nonconsenting party may challenge the settlement before the administrative law judge, and an appeal is available from the judge's determination to the Board. [Footnote 15] Judicial review is authorized from the Board's decision. 29 U.S.C. § 160(f). Page 484 U. S. 122Finally, the complaint may be disposed of by formal adjudication. The procedures for such determinations are provided by statute. Once a complaint issues, the charged party has the right to answer and the right to a hearing. If the Board finds, based on a preponderance of the testimony, that the charged party engaged in an unfair labor practice, it is empowered to issue a cease-and-desist order and other appropriate relief. Conversely, it must dismiss the complaint if it finds that no such practice occurred. [Footnote 16] Any party, including the charging party, [Footnote 17] aggrieved by an order of the Board granting or denying in whole or in part the relief sought may obtain review of the Board's final order in the court of appeals. 29 U.S.C. § 160(f). [Footnote 18]The dispute in the case before us is a narrow one. The parties agree that the General Counsel's approval of a determination not to file an unfair labor practice complaint is not subject to judicial review, whether or not it is the result of an Page 484 U. S. 123 informal settlement. See Sears, Roebuck & Co., 421 U.S. at 421 U. S. 148; Vaca v. Sipes, 386 U. S. 171, 386 U. S. 182 (1967). The parties also agree that any settlement that ultimately results in Board approval is subject to judicial review, even if the settlement is informal but entered into after the hearing commenced. The sole dispute is whether a postcomplaint, prehearing informal settlement is subject to judicial review.BWe first address respondent's argument that the regulations just described, which permit the General Counsel to determine the validity of a postcomplaint informal settlement, but do not provide for an appeal to the Board, are inconsistent with the NLRA. Essentially, this is an argument that respondent was entitled to a Board order subject to judicial review under 29 U.S.C. § 160(f). [Footnote 19]We review the validity of the relevant regulations, promulgated pursuant to congressional authority, under the standards prescribed in INS v. Cardoza-Fonseca, 480 U. S. 421 (1987). On a pure question of statutory construction, our first job is to try to determine congressional intent, using "traditional tools of statutory construction." If we can do so, then that interpretation must be given effect, and the regulations at issue must be fully consistent with it. Id. at 480 U. S. 446-448. See also Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 467 U. S. 842-843, and n. 9 (1984). However, where"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."Id. at 467 U. S. 843. Under this principle, we have traditionally accorded the Board deference with regard to its interpretation of the NLRA as long as its interpretation is rational and consistent with the statute. See, e.g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 482 U. S. 42 (1987); Ford Motor Co. v. NLRB, 441 Page 484 U. S. 124 U.S. 488, 441 U. S. 495, 497 (1979); Beth Israel Hospital v. NLRB, 437 U. S. 483, 501 (1978). [Footnote 20]The words, structure, and history of the LMRA amendments to the NLRA clearly reveal that Congress intended to differentiate between the General Counsel's and the Board's "final authority" along a prosecutorial versus adjudicatory line. Section 3(d) of the NLRA provides that the General Counsel has "final authority" regarding the filing, investigation, and "prosecution" of unfair labor practice complaints. Conversely, when the authority of the Board is discussed (with regard to unfair labor practice complaints), it is in the context of the adjudication of complaints. Specifically, § 10 of the Act refers to the Board and the procedures it must follow to decide unfair labor practice cases.The history of the LMRA also reflects this dichotomy. The House Conference Report on the LMRA states:"The conference agreement does not make provision for an independent agency to exercise the investigating and prosecuting functions under the act, but does provide that there shall be a General Counsel of the Board . . . [who] is to have the final authority to act in the name of, but independently of any direction, control, or review by, the Board in respect of the investigation of charges and the issuance of complaints of Page 484 U. S. 125 unfair labor practices, and in respect of the prosecution of such complaints before the Board."H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 37 (1947) (emphasis added). Similarly, a summary submitted to the Senate detailing the Conference Committee compromise reads:"Further, [the LMRA] recognizes the principle of separating judicial and prosecuting functions without going to the extent of establishing a completely independent agency. It accomplishes separation of functions within the framework of the existing agency by establishing a new statutory office, that is, a general counsel of the Board. . . ."93 Cong.Rec. 6442 (1947) (emphasis added). The legislative debates further support this division. See, e.g., id. at 3423-3424 (1947) (remarks of Rep. Hartley); id. at 6383 (remarks of Rep. Owens). Finally, the contemporaneous agency interpretation of the LMRA emphasized the prosecutorial/adjudicatory dichotomy. See 13 Fed.Reg. 654 (1948).In light of the foregoing, the general congressional framework, dividing the final authority of the General Counsel and the Board along a prosecutorial and adjudicatory line, is easy to discern. Some agency decisions can be said with certainty to fall on one side or the other of this line. For example, as already discussed, decisions whether to file a complaint are prosecutorial. In contrast, the resolution of contested unfair labor practice cases is adjudicatory. But between these extremes are cases that might fairly be said to fall on either side of the division. Our task, under Cardoza-Fonseca and Chevron, is not judicially to categorize each agency determination, but rather to decide whether the agency's regulatory placement is permissible.Respondent would have us hold that, after a complaint is filed, all dispositions can only be deemed adjudicatory. It is true that the filing of a complaint is the necessary first step to trigger the Board's adjudicatory authority. However, until a hearing is held, the Board has taken no action; no adjudication has yet taken place. We hold that it is a reasonable construction Page 484 U. S. 126 of the NLRA to find that, until the hearing begins, settlement or dismissal determinations are prosecutorial. [Footnote 21]Moreover, we fail to see why the General Counsel should have the concededly unreviewable discretion to file a complaint, but not the same discretion to withdraw the complaint before hearing if further investigation discloses that the case is too weak to prosecute. See International Assn. of Machinists & Aerospace Workers v. Lubbers, 681 F.2d 598, 604 (CA9 1982), cert. denied, 459 U.S. 1201 (1983); George Banta Co. v. NLRB, 626 F.2d 354, 356-357 (CA4 1980), cert. denied, 449 U.S. 1080 (1981); Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. NLRB, 339 F.2d 795, 799 (CA2 1964); cf. Cuyahoga Valley R. Co. v. Transportation Union, 474 U. S. 3 (1985) (the Secretary of Labor's decision to dismiss an Occupational Safety and Health Act complaint is not subject to review by the Occupational Safety and Health Review Commission). The General Counsel's unreviewable discretion to file and withdraw a complaint, in turn, logically supports a reading that he or she must also have final authority to dismiss a complaint in favor of an informal settlement, at least before a hearing begins.But respondent contends that the LMRA's legislative history makes clear Congress' understanding that the Board would review all dismissals once a complaint is filed. Our examination of the legislative history discloses no such support for respondent's argument. Indeed, we find that the legislative history supports petitioners' position.Respondent asserts that, at the time the LMRA was passed in 1947, the practice of the Board was to delegate to Page 484 U. S. 127 an "anonymous committee" the resolution of appeals from determinations by regional directors not to file complaints. Respondent further argues that, once a complaint was filed, any final disposition was subject to Board approval. The conclusion respondent would have us draw from this is that Congress intended only to replace the "anonymous committee" with the General Counsel, and that the authority that the Board had retained prior to 1947 survived, and was carried forward in the LMRA amendments to the NLRA. [Footnote 22]This inference is too strained to withstand scrutiny. It is clear, of course, that Congress intended to place final authority regarding the filing of complaints in the General Counsel. But it is equally clear that Congress intended the scope of the General Counsel's authority to be far broader than respondent suggests. Congress intended that the General Counsel should not only resolve appeals regarding the filing of complaints, but that he or she should be the "final authority" concerning the "prosecution" of complaints as well, a function not performed by the "anonymous committee" prior to 1947. We repeat that Congress intended to create an officer independent of the Board to handle prosecutions, not merely the filing of complaints.Moreover, the silence of the legislative history regarding settlements does not suggest that Congress was carrying forward the prior settlement structure. For Congress was Page 484 U. S. 128 aware that settlements constitute the "lifeblood" of the administrative process, especially in labor relations. [Footnote 23] Given their importance, we cannot attribute to Congress an intention to deny the Board the usual flexibility accorded an agency in interpreting its authorizing statute and in developing new regulations to meet changing needs. [Footnote 24]In short, the Board's regulations are consistent with amended NLRA. Respondent was not entitled to Board review of the settlement.CAlternatively, respondent argues that, because the General Counsel acts "on behalf of the Board," his or her final determinations are reviewable under the NLRA as orders "of the Board." We find this argument, too, unpersuasive.The plain language cited by respondent reflects that the General Counsel acts "on behalf of" the Board. 29 U.S.C. § 153(d). [Footnote 25] Clearly this is not the same as an act "of the Board" itself. 29 U.S.C. § 160(f). [Footnote 26]Further, the structure of the Act, far from supporting respondent, leads inescapably to the conclusion that Congress distinguished orders of the General Counsel from Board orders. The statute describing the organization of the agency, Page 484 U. S. 129 in which the "on behalf of the Board" language appears, differentiates between the two independent branches. 29 U.S.C. § 153. The structure of § 10 of the NLRA (29 U.S.C. § 160) emphasizes the distinction. Section 10 specifies the procedure for adjudicating unfair labor practice charges. Subsection 10(f) provides that final decisions "of the Board" shall be judicially reviewable, and, in the context of the entire section, discloses Congress' decision to authorize review of adjudications, not of prosecutions. Fairly read, this may encompass any Board adjudication resolving an unfair labor practice complaint, whether by final order, consent decree, or settlement. But it plainly cannot be read to provide for judicial review of the General Counsel's prosecutorial function.The history of the Act confirms the distinction between orders of the General Counsel and Board orders. In the House bill, the General Counsel was styled the "Administrator of the National Labor Relations Act," and headed a separate agency. The Conference Committee decided to place the General Counsel within the agency, but to make the office independent of the Board's authority. The Committee added the language "on behalf of the Board" to make it clear that the General Counsel acted within the agency, not to imply that the acts of the General Counsel would be considered acts of the Board. [Footnote 27] Page 484 U. S. 130Finally, since respondent concedes that the General Counsel's decision not to file a complaint is not reviewable under § 10(f), we perceive no merit or logic in the argument that a settlement decision of the General Counsel may be.Again, the language, structure, and history of the NLRA, as amended, clearly differentiate between "prosecutorial" determinations, to be made solely by the General Counsel and which are not subject to review under the Act, and "adjudicatory" decisions, to be made by the Board and which are subject to judicial review. As the decision in this case was "prosecutorial," it cannot be judicially reviewed under the NLRA.IIIRespondent argues that, if the NLRA provides no judicial review of "prosecutorial" determinations, they may be reviewed under the Administrative Procedure Act (APA) as final agency actions "for which there is no other adequate remedy in a court." 5 U.S.C. § 704. It is true that the General Counsel's decision was a "final" action, and that there is no other adequate remedy in a court. But review under the APA is unavailable of actions specified in 5 U.S.C. § 701(a), that is, (1) where "statutes preclude judicial review"; or (2) where "agency action is committed to agency discretion by law." Subsection (1) applies in this case. Page 484 U. S. 131The statutory preclusion of judicial review must be demonstrated clearly and convincingly. Southern R. Co. v. Seaboard Allied Milling Corp., 442 U. S. 444, 442 U. S. 462 (1979); Dunlop v. Bachowski, 421 U. S. 560, 421 U. S. 567 (1975). In the absence here of statutory language expressly precluding APA review, the Court must examine the structure and history of the statute to determine whether the requisite congressional intent to bar judicial review is clearly established.The NLRA leaves no doubt that it is meant to be, and is, a comprehensive statute concerning the disposition and review of the merits of unfair labor practice charges. In particular, § 10 exhaustively sets out the stages through which such charges may pass, from the filing of a complaint, to a Board determination, and to judicial enforcement and review. Moreover, in the entire NLRA, judicial review is expressly provided only in respect of Board orders. We have already determined, supra, at 484 U. S. 130, that Congress purposely excluded prosecutorial decisions from this review. We proceed to demonstrate why it would be illogical in the extreme to hold that Congress did so only to permit review under the APA. [Footnote 28]To allow judicial review through the APA of the General Counsel's settlement determinations would run directly counter to the structure of the NLRA. Appeals from final orders or dispositions of the Board are expressly directed to the courts of appeals. Respondent nevertheless urges that the statute should be read to allow an APA suit, brought in the district court, to review final agency orders that are not adjudications. Such review would involve lengthy judicial Page 484 U. S. 132 proceedings in precisely the area where Congress was convinced that speed of resolution is most necessary. This case provides a good illustration of what Congress set out to avoid. Charges were filed by respondent in August, 1984. By January, 1985, the settlement had been reached and all administrative review was exhausted. However, the court proceedings took almost 15 months. [Footnote 29]This sort of delay, unavoidable in the judicial setting, is untenable in the settlement context, for, until the court ruled, the parties could not know whether their settlement agreement was valid. In future cases, a charged party would have an incentive not to carry out its part of the bargain while judicial review is pending for fear that the settlement might be invalidated. Obviously, the willingness of charged parties to resolve unfair labor practice charges quickly and expeditiously by way of an informal settlement after a complaint is filed would be severely constrained if APA review were allowed.The resulting consequences for the agency and the enforcement of the Act could be most serious. In 1983, almost one-third of all unfair labor practice charges brought (excluding those terminated through voluntary withdrawal by the charging party or outright dismissal of the charges) were disposed of by way of an informal settlement reached after a complaint was filed, but before a hearing began. [Footnote 30] This hazard to the functioning of the "lifeblood" of the administrative process could certainly not have been the congressional intention.Finally, APA review of these settlements would inevitably require the federal courts, in the first adjudicatory instance, to examine the merits of unfair labor practice charges. Page 484 U. S. 133 However, Congress has made plain its unequivocal desire that, absent statutory direction to the contrary, such examinations be made first by the Board, or not at all. At least in the context of this statute, we are left with no doubt that Congress intended the right of judicial review on the merits of an unfair labor practice charge to be had only through the express provisions of the NLRA.Given the comprehensive nature of the NLRA with regard to unfair labor practice charges, and the absurd results of allowing an APA action to be brought where there is no judicial review provided in the Act, we conclude that the exception defined in 5 U.S.C. § 701(a)(1) bars review here. [Footnote 31]IVWe conclude that the Court of Appeals had no jurisdiction to entertain this action under either the NLRA or the APA. Consequently, we need not determine whether an evidentiary hearing should have been ordered. We reverse the judgment of the Court of Appeals and remand with instructions to dismiss the cause for want of subject matter jurisdiction.It is so ordered

U.S. Supreme CourtNLRB v. Food & Commercial Workers, 484 U.S. 112 (1987)National Labor Relations Board v. United Food & CommercialWorkers Union, Local 23, AFL-CIONo. 86-594Argued October 5, 1987Decided December 14, 1987484 U.S. 112SyllabusNational Labor Relations Board regulations implementing the unfair labor practice provisions of the National Labor Relations Act (NLRA or Act) provide that, after one of the Board's regional directors has filed a complaint, but before a hearing is held thereon, the director may enter into either a formal or an informal settlement. The regulations allow a nonconsenting party to appeal a formal settlement to the Board's General Counsel, and then to the Board itself, and the Board's order is subject to review in the federal courts of appeals under § 10(f) of the Act as "a final order of the Board." However, if such a settlement is informal in nature, the regulations permit an appeal to the General Counsel, but not to the Board. Respondent union filed charges alleging that an employer and another union had committed an unfair labor practice. After the Regional Director filed complaints, but before the scheduled hearing, the Director entered into an informal settlement agreement in which respondent refused to join. Pursuant to the regulations, respondent challenged the Director's action before the General Counsel, who sustained the settlement. Respondent then sought review in the Court of Appeals, which rejected the Board's contention that the petition for review should be dismissed for lack of jurisdiction to review an informal settlement that did not result in an order of the Board, and that was entered into without hearings.Held:1. A postcomplaint, prehearing informal settlement decision by the General Counsel is not subject to judicial review under the NLRA. Pp. 484 U. S. 123-130.(a) The regulations' failure to provide for a judicially reviewable Board order on the General Counsel's postcomplaint, prehearing informal settlement decision is consistent with the NLRA, and entitled to deference. The language, structure, and history of the NLRA, as amended, clearly reveal that Congress intended to differentiate between "prosecutorial" determinations, which are to be made solely by the General Counsel, independent of the Board, and "adjudicatory" decisions, which are to be made by the Board, subject to judicial review. It is a Page 484 U. S. 113 reasonable construction of the NLRA to find that postcomplaint, prehearing settlement determinations are prosecutorial in nature, since, until a hearing is held, the Board has taken no action, and has therefore made no adjudication. Moreover, the General Counsel's unreviewable discretion to file and withdraw complaints supports a reading that he or she also has final authority to dismiss a complaint in favor of an informal settlement before a hearing begins. The legislative history indicates a congressional intent to give the General Counsel final authority to handle all aspects of prosecutions, not merely the filing of complaints. The legislative history's silence regarding settlements does not indicate an intention to deny the Board the usual flexibility accorded an agency in interpreting its authorizing statute and in developing new regulations to meet changing needs, since Congress was aware of the importance of settlements to the administrative labor relations process. Pp. 484 U. S. 123-128.(b) Respondent's contention that, because the General Counsel acts "on behalf of the Board" under § 3(d) of the NLRA, his or her final determinations are reviewable under § 10(f) as orders "of the Board," is refuted by the Act's plain language, structure, and history. Clearly, an act "on behalf of" the Board is not the same as an act "of the Board" itself. Further, the Act's provisions, particularly §§ 3 and 10, evidence a congressional intent to distinguish unreviewable prosecutorial orders of the General Counsel from judicially reviewable orders of the Board. The NLRA's history also confirms this distinction, demonstrating that the "on behalf of the Board" language was added to make it clear that the General Counsel acts within the agency, not to imply that the General Counsel's acts should be considered acts of the Board. Moreover, since respondent concedes that the General Counsel's decision not to file a complaint is not reviewable under § 10(f), there is no merit in the argument that the General Counsel's settlement decisions may be reviewable. Pp. 484 U. S. 128-130.2. The General Counsel's settlement determinations may not be judicially reviewed under the Administrative Procedure Act (APA) as final agency actions "for which there is no other adequate remedy in a court," since APA review is unavailable where "statutes preclude judicial review." Although the NLRA does not contain language expressly precluding APA review, the NLRA's structure and history clearly establish the requisite congressional intent to do so. The NLRA is a comprehensive statute that exhaustively sets out the stages through which unfair labor practice charges must pass, and expressly provides for judicial review only as to Board orders. APA review of General Counsel settlement decisions would run directly counter to this scheme, and would be extremely illogical, since appeals would be to the district courts, would involve lengthy proceedings in an area where Congress felt speed of Page 484 U. S. 114 resolution to be necessary, and would provide a charged party with an incentive not to fulfill its settlement obligations until the proceedings were completed. Since postcomplaint, prehearing informal settlements represent a substantial portion of unfair labor practice charge dispositions, Congress could not have intended the potentially serious consequences that APA review would entail. Moreover, APA review would inevitably require the initial examination of the merits of charges to be made by federal courts, rather than the Board, as Congress intended. Pp. 484 U. S. 130-133.788 F.2d 178, reversed and remanded.BRENNAN, J., delivered the opinion for a unanimous Court. SCALIA, J., filed a concurring opinion, in which REHNQUIST, C.J., and WHITE and O'CONNOR, JJ., joined, post, p. 484 U. S. 133.

1957_126

MR. JUSTICE BRENNAN delivered the opinion of the Court.Petitioner, William Miller, together with Bessie Byrd and her brother, Arthur R. Shepherd, was tried and convicted in the District Court for the District of Columbia for conspiracy to commit violations, and violations, of the federal narcotics laws. 26 U.S.C. (Supp. V) § 4704(a); 21 U.S.C. § 174; 18 U.S.C. § 371. The Court of Appeals for the District of Columbia Circuit affirmed, one judge dissenting, 100 U.S.App.D.C. 302, 244 F.2d 750. We granted certiorari, 353 U.S. 957, to determine whether evidence seized at the time of petitioner's arrest was properly admitted against the petitioner. The evidence was $100 of marked currency which was seized by the federal officers who arrested the petitioner and Bessie Byrd at their apartment.On March 25, 1955, at 1:35 a.m., Clifford Reed was arrested, under an arrest warrant, on a washington, D.C., street on suspicion of narcotics offenses. Reed revealed to Wilson, a federal narcotics agent, that he purchased heroin in 100-capsule quantities from the petitioner through Shepherd. Agent Wilson knew of the petitioner as one who had trafficked in narcotics and had been convicted for a narcotics offense in 1953. Reed said that he was to meet Shepherd later that morning to make a purchase. Agent Wilson enlisted his aid to apprehend Shepherd and the petitioner. About 3 a.m., another federal narcotics agent, Lewis, carrying $100 of marked currency, went with Reed in a taxicab to Shepherd's home. Reed introduced Lewis to Shepherd as a buyer. Shepherd accepted the $100 and agreed to secure 100 capsules of heroin from the petitioner and deliver them to Lewis at Reed's apartment. Shepherd proceeded alone in the taxicab to the petitioner's apartment. Page 357 U. S. 303The taxicab was followed by agent Wilson, officer Wurms of the Metropolitan Police Department, and other officers in police cars. [Footnote 1] Shepherd was seen to leave the taxicab in front of the apartment house where the petitioner and Bessie Byrd occupied a two-room-and-bath basement apartment. The taxicab waited. Shepherd entered the basement, but agent Wilson, who looked into the basement hall, could not see where he went. Shepherd came out of the basement within a few minutes, and reentered the taxicab. The taxicab was proceeding toward Reed's apartment when the officers following in the police cars intercepted it. Shepherd was arrested and searched. He did not have the marked bills on his person, but admitted to agent Wilson and officer Wurms that a package of 100 capsules of narcotics found under the taxicab's front seat was put there by him when the police cars stopped the taxicab. He said that he had taken the package from behind a fire extinguisher in the basement hall where he had been sent by a "fellow" with Reed who had promised him $10 for getting it.The federal officers returned immediately to the apartment building. About 3:45 a.m., agent Wilson and officer Wurms went to the door of the petitioner's apartment. Officer Wurms knocked and, upon the inquiry from within -- "Who's there?" -- replied in a low voice, "Police." The petitioner opened the door on an attached door chain and asked what the officers were doing there. Before either responded, he attempted to close the door. Thereupon, according to officer Wurms, "we put our hands inside the door and pulled and ripped the chain off, Page 357 U. S. 304 and entered." [Footnote 2] The officers had no arrest or search warrant. They did not expressly demand admission or state their purpose for their presence, [Footnote 3] nor did they place the petitioner under arrest until after they entered the apartment.Bessie Byrd was also arrested in the apartment, and turned over the cash she had in her housecoat. The cash included $34 of the marked currency. After an extended search, the remaining $66 of marked currency was found, some in a hatbox in a closet and the rest within the covers of a bed in the bedroom.The Government contends that there was probable cause for arresting the petitioner, and that the marked currency Page 357 U. S. 305 was properly admitted in evidence because it was seized as an incident to a lawful arrest. Harris v. United States, 331 U. S. 145. The petitioner's argument breaks down into three contentions: (1) that the officers had no probable cause to arrest the petitioner without a warrant; (2) that the search was not justified as being an incident of a lawful arrest; (3) that the arrest, and therefore the search, was, in any event, unlawful because the officers broke the door of petitioner's home without first giving notice of their authority and purpose in demanding admission. If any one of these contentions prevails, it is agreed that the marked money was inadmissible in evidence. In the view we take, we need consider only petitioner's third contention.The lawfulness of the arrest of petitioner depends upon the power of the arresting officers to "break" the doors of a home in order to arrest without warrant persons suspected of having committed narcotics offenses. Agent Wilson did not have statutory authority to arrest without a warrant, although officer Wurms, as a member of the Metropolitan Police Department, did have such authority. [Footnote 4] This Court has said, in the similar circumstance of an arrest for violation of federal law by state peace officers, that the lawfulness of the arrest without warrant is to be determined by reference to state law. United States v. Di Re, 332 U. S. 581, 332 U. S. 589; Johnson v. United States, 333 U. S. 10, 333 U. S. 15. By like reasoning, the validity of the arrest Page 357 U. S. 306 of petitioner is to be determined by reference to the law of the District of Columbia.In making reference to that law, we are mindful of our policy of not interfering with local rules of law fashioned by the courts of the District of Columbia. Fisher v. United States, 328 U. S. 463, 328 U. S. 476; Griffin v. United States, 336 U. S. 704, 336 U. S. 715. But the Government agrees with petitioner that the validity of the entry to execute the arrest without warrant must be tested by criteria identical with those embodied in 18 U.S.C. § 3109, which deals with entry to execute a search warrant. [Footnote 5] That section provides that an officer executing a search warrant may break open a door only if, "after notice of his authority and purpose," he is denied admittance. The Government states in its brief that,"where an arrest is made on probable cause, rather than a warrant, these statutory requirements must be met before an officer can force entry into an apartment."These statutory requirements are substantially identical to those judicially developed by the Circuit Court of Appeals for the District of Columbia in Accarino v. United States, 85 U.S.App.D.C. 394, 403, 179 F.2d 456, 465. Since the rule of Accarino bears such a close relationship to a statute which is not confined in operation to the District of Columbia, we believe that review is warranted here. Cf. Del Vecchio v. Bowers, 296 U. S. 280; Carroll v. United States, 354 U. S. 394, 354 U. S. 414.From earliest days, the common law drastically limited the authority of law officers to break the door of a house Page 357 U. S. 307 to effect an arrest. [Footnote 6] Such action invades the precious interest of privacy summed up in the ancient adage that a man's house is his castle. As early as the 13th Yearbook of Edward IV (1461-1483), at folio 9, there is a recorded holding that it was unlawful for the sheriff to break the doors of a man's house to arrest him in a civil suit in debt or trespass, for the arrest was then only for the private interest of a party. Remarks attributed [Footnote 7] to William Pitt, Earl of Chatham, on the occasion of debate in Parliament on the searches incident to the enforcement of an excise on cider, eloquently expressed the principle:"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter -- all his force dares not cross the threshold of the ruined tenement!"But the common law recognized some authority in law officers to break the door of a dwelling to arrest for felony. The common law authorities differ, however, as to the circumstances in which this was the case. Hawkins says:"where one lies under a probable Suspicion only, and is not indicted, it seems the better Opinion at this Day, That no one can justify the Breaking open Doors in Order to Page 357 U. S. 308 apprehend him."2 Hawkins, Pleas of the Crown, c. 14, § 7 (1762); see also Foster, Crown Law, (1762) 320-321 (2d ed. 1776). Coke appears to have been of the same view, and to have thought that the breaking of a house was limited to cases in which a writ, now our warrant, had issued. Co. 4th Inst. 177. On the other hand, Hale says that "A man that arrests upon suspicion of felony may break open doors if the party refuse upon demand to open them. . . ." 1 Hale, Pleas of the Crown 583 (1736).Whatever the circumstances under which breaking a door to arrest for felony might be lawful, however, the breaking was unlawful where the officer failed first to state his authority and purpose for demanding admission. The requirement was pronounced in 1603 in Semayne's Case, 5 Coke Co.Rep. 91a, 11 E.R.C. 629, 77 Eng.Repr. 194 at 195:"In all cases where the King is party, the sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the K[ing]'s process, if otherwise he cannot enter. But, before he breaks it, he ought to signify the cause of his coming, and to make request to open doors. . . ."(Emphasis supplied.)The requirement stated in Semayne's Case still obtains. It is reflected in 18 U.S.C. § 3109, in the statutes of a large number of States, [Footnote 8] and in the American Law Page 357 U. S. 309 Institute's proposed Code of Criminal Procedure, § 28. [Footnote 9] It applies, as the Government here concedes, whether the arrest is to be made by virtue of a warrant or when officers are authorized to make an arrest for a felony without a warrant. There are some state decisions holding that justification for noncompliance exists in exigent circumstances, as, for example, when the officers may in good faith believe that they or someone within are in peril of bodily harm, Read v. Case, 4 Conn. 166, or that the person to be arrested is fleeing or attempting to destroy evidence. People v. Maddox, 46 Cal. 2d 301, 294 P.2d 6.But whether the unqualified requirements of the rule admit of an exception justifying noncompliance in exigent circumstances is not a question we are called upon to decide in this case. The Government makes no claim here of the existence of circumstances excusing compliance. The Government concedes that compliance was required, but argues that "compliance is evident from the events immediately preceding the officers' forced entry."The rule seems to require notice in the form of an express announcement by the officers of their purpose for demanding admission. The burden of making an express announcement is certainly slight. A few more words by Page 357 U. S. 310 the officers would have satisfied the requirement in this case. It may be that, without an express announcement of purpose, the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose, so that an announcement would be a useless gesture. Cf. People v. Martin, 45 Cal. 2d 755, 290 P.2d 855; Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 798, 802 (1924). [Footnote 10] But, even by that test, the evidence upon which the Government relief was not sufficient to justify the officers' failure expressly to notify the petitioner that they demanded admission to his apartment for the purpose of arresting him.The single fact known to the officers upon which the Government relies is the "split-second" occurrence in which the petitioner evinced "instantaneous resistance to their entry," an "almost instinctive attempt to bar their entry after they [the officers] had identified themselves as police. . . ." It is argued that this occurrence "certainly points up that he knew their purpose immediately . . . [and] at once, realized that he had been detected and that the officers were there to arrest him"; Page 357 U. S. 311 that"[i]t would be wholly unrealistic to say that the officers had not made their purpose known because they did not more formally announce that they were there to arrest him."But, first, the fact that petitioner attempted to close the door did not of itself prove that he knew their purpose to arrest him. It was an ambiguous act. It could have been merely the expected reaction of any citizen having this experience at that hour of the morning, particularly since it does not appear that the officers were in uniform, cf. Accarino v. United States, supra, 85 U.S.App.D.C. at 403, 179 F.2d at 465, and the answer "Police" was spoken "in a low voice," and might not have been heard by the petitioner, so far as the officers could tell.Second, petitioner's reaction upon opening the door could only have created doubt in the officers' minds that he knew they were police intent on arresting him. On the motion to suppress, Agent Wilson testified that "he wanted to know what we were doing there." This query, which went unanswered, is, on its face, inconsistent with knowledge. The majority of the Court of Appeals denied the import of the query by inferring that Miller knew Wilson and Wurms personally and recognized them as soon as he opened the door. That inference has no support in the record. [Footnote 11] But, even if this inference were Page 357 U. S. 312 supportable, Miller's recognition of Wilson and Wurms as police officers would not have justified them, in light of other facts known to them, in being virtually certain that Miller actually knew the reason for their presence. The officers knew that petitioner was unaware of Shepherd's arrest; they knew that he was unaware that the currency was marked; they knew that he was unaware that their presence was pursuant to a plan, initiated by Reed's disclosures, to catch the petitioner in a criminal act. Moreover, they did not actually know that petitioner had made a sale to Shepherd and received the marked money, for Shepherd had not talked, and had not been seen to enter petitioner's apartment. The fact that the marked money was found in the apartment has no bearing upon the petitioner's knowledge of the officers' purpose, since he did not know that the money was marked. This Court said in United States v. Di Re, supra, at 332 U. S. 595:"We have had frequent occasion to point out that a search is not to be made legal by what it turns up. In law, it is good or bad when it starts, and does not change character from its success."The most that can be said is that the petitioner's act in attempting to close the door might be the basis for the officers being virtually certain that the petitioner knew there were police at his door conducting an investigation. This, however, falls short of a Page 357 U. S. 313 virtual certainty that the petitioner knew of their purpose to arrest him. The requirement is not met except by notice of that purpose, for the Government admits that the officers had no authority to break the petitioner's door except to arrest him. We must, therefore, conclude that the petitioner did not receive the required notice of authority and purpose.We are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law. But insistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness. The requirement of prior notice of authority and purpose before forcing entry into a home is deeply rooted in our heritage, and should not be given grudging application. Congress, codifying a tradition embedded in Anglo-American law, has declared in § 3109 the reverence of the law for the individual's right of privacy in his house. [Footnote 12] Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house. The petitioner could not be lawfully arrested in his home by officers breaking in without first giving him notice of their authority and purpose. Because the petitioner did not receive that Page 357 U. S. 314 notice before the officers broke the door to invade his home, the arrest was unlawful, and the evidence seized should have been suppressed.Reversed

U.S. Supreme CourtMiller v. United States, 357 U.S. 301 (1958)Miller v. United StatesNo. 126Argued January 28, 1958Decided June 23, 1958357 U.S. 301SyllabusIn the District of Columbia, officers without a warrant knocked on the door of petitioner's apartment and, upon his inquiry, "Who's there?" replied in a low voice, "Police." Petitioner opened the door, but quickly tried to close it, whereupon the officers broke the door, entered, arrested petitioner and seized marked bills which were later admitted as evidence over petitioner's objection at a trial in which he was convicted of violations of the narcotics laws.Held: petitioner could not lawfully be arrested in his home by officers breaking in without first giving him notice of their authority and purpose, the arrest was unlawful, the evidence seized was inadmissible, and the conviction is reversed. Pp. 357 U. S. 302-314.(a) The validity of an arrest without a warrant for violation of federal law by local peace officers is to be determined by reference to local law. Pp. 357 U. S. 305-306.(b) Under District of Columbia law, peace officers, otherwise authorized to break the door of a home to make an arrest, may do so only if denied admittance after notice of their authority and purpose. Pp. 357 U. S. 306-310.(c) Since no express announcement was made, and since the evidence in this case was not sufficient to prove that petitioner knew the purpose of the arresting officers, the arrest was unlawful. Pp. 357 U. S. 310-313.100 U.S.App.D.C. 302, 244 F.2d 750, reversed. Page 357 U. S. 302

2002_01-593

strumentality status even if their theory that such status could be conferred on a subsidiary were accepted. Pp.478-480.No. 01-593, certiorari dismissed; No. 01-594, affirmed. Reported below: 251 F.3d 795.KENNEDY, J., delivered the opinion for a unanimous Court with respect to Parts I, II-A, and II-C, and the opinion of the Court with respect to Part II-B, in which REHNQUIST, C. J., and STEVENS, SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which O'CONNOR, J., joined, post, p.480.Peter R. Paden argued the cause for petitioners in both cases. With him on the briefs in No. 01-594 were Philip E. Karmel, Laurence A. Horvath, Thomas C. Walsh, and James F. Bennett. On the briefs in No. 01-593 were Robert H. Klonoff, Daniel H. Bromberg, Terence M. Murphy, Michael L. Rice, Robert G. Crow, Richard C. Sutton, Jr., Robert T. Greig, Boaz S. Morag, Michael L. Brem, F. Walter Conrad, Jr., D. Ferguson McNiel III, Charles W Schwartz, and R. Burton Ballanfant.Jonathan S. Massey argued the cause for respondents in both cases. With him on the brief was Christian H. Hartley.Jeffrey P. Minear argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Kneedler, Douglas N. Letter, H. Thomas Byron III, and William Howard Taft rv.tJUSTICE KENNEDY delivered the opinion of the Court. Foreign states may invoke certain rights and immunities in litigation under the Foreign Sovereign Immunities Act oftBriefs of amici curiae urging reversal were filed for the Republic of Ireland et al. by Martin R. Baach and James P. Davenport; and for Consortium de Realisation et al. by George J. Terwilliger III, Darryl S. Lew, and R. Shawn Gunnarson.4711976 (FSIA or Act), Pub. L. 94-583, 90 Stat. 2891. Some of the Act's provisions also may be invoked by a corporate entity that is an "instrumentality" of a foreign state as defined by the Act. Republic of Argentina v. Weltover, Inc., 504 U. S. 607, 611 (1992); Verlinden B. v: v. Central Bank of Nigeria, 461 U. S. 480, 488 (1983). The corporate entities in this action claim instrumentality status to invoke the Act's provisions allowing removal of state-court actions to federal court. As the action comes to us, it presents two questions. The first is whether a corporate subsidiary can claim instrumentality status where the foreign state does not own a majority of its shares but does own a majority of the shares of a corporate parent one or more tiers above the subsidiary. The second question is whether a corporation's instrumentality status is defined as of the time an alleged tort or other actionable wrong occurred or, on the other hand, at the time suit is filed. We granted certiorari, 536 U. S. 956 (2002).IThe underlying action was filed in a state court in Hawaii in 1997 against Dole Food Company and other companies (Dole petitioners). Plaintiffs in the action were a group of farm workers from Costa Rica, Ecuador, Guatemala, and Panama who alleged injury from exposure to dibromochloropropane, a chemical used as an agricultural pesticide in their home countries. The Dole petitioners impleaded petitioners Dead Sea Bromine Co., Ltd., and Bromine Compounds, Ltd. (collectively, the Dead Sea Companies). The merits of the suit are not before us.The Dole petitioners removed the action to the United States District Court for the District of Hawaii under 28 U. S. C. § 1441(a), arguing that the federal common law of foreign relations provided federal-question jurisdiction under § 1331. The District Court agreed there was federal subject-matter jurisdiction under the federal common law of472foreign relations but, nevertheless, dismissed the case on grounds of forum non conveniens.The Dead Sea Companies removed under a separate theory. They claimed to be instrumentalities of a foreign state as defined by the FSIA, entitling them to removal under § 1441(d). The District Court held that the Dead Sea Companies are not instrumentalities of a foreign state for purposes of the FSIA and are not entitled to removal on that basis. Civ. No. 97-01516HG (D. Haw., Sept. 9, 1998), App. to Pet. for Cert. in No. 01-594, p. 79a.The Court of Appeals reversed. Addressing the ground relied on by the Dole petitioners, it held removal could not rest on the federal common law of foreign relations. 251 F.3d 795, 800 (CA9 2001). In this Court the Dole petitioners did not seek review of that portion of the Court of Appeals' ruling, and we do not address it. Accordingly, the writ of certiorari in No. 01-593 is dismissed.The Court of Appeals also reversed the order allowing removal at the instance of the Dead Sea Companies, who alleged they were instrumentalities of the State of Israel. The Court of Appeals noted, but declined to answer, the question whether status as an instrumentality of a foreign state is assessed at the time of the alleged wrongdoing or at the time suit is filed. It went on to hold that the Dead Sea Companies, even at the earlier date, were not instrumentalities of Israel because they did not meet the Act's definition of instrumentality.In order to prevail here, the Dead Sea Companies must show both that instrumentality status is determined as of the time the alleged tort occurred and that they can claim instrumentality status even though they were but subsidiaries of a parent owned by the State of Israel. We address each question in turn. In No. 01-594, the case in which the Dead Sea Companies are petitioners, we now affirm.473II ATitle 28 U. S. C. § 1441(d) governs removal of actions against foreign states. It provides that "[a]ny civil action brought in a State court against a foreign state as defined in [28 U. S. C. § 1603(a)] may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending." See also § 1330 (governing original jurisdiction). Section 1603(a), part of the FSIA, defines "foreign state" to include an "agency or instrumentality of a foreign state." "[A]gency or instrumentality of a foreign state" is defined, in turn, as:"[A]ny entity-"(1) which is a separate legal person, corporate or otherwise, and"(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and"(3) which is neither a citizen of a State of the United States ... nor created under the laws of any third country." § 1603(b).BThe Court of Appeals resolved the question of the FSIA's applicability by holding that a subsidiary of an instrumentality is not itself entitled to instrumentality status. Its holding was correct.The State of Israel did not have direct ownership of shares in either of the Dead Sea Companies at any time pertinent to this suit. Rather, these companies were, at various times, separated from the State of Israel by one or more intermediate corporate tiers. For example, from 1984-1985, Israel wholly owned a company called Israeli Chemicals, Ltd.; which owned a majority of shares in another company called474Dead Sea Works, Ltd.; which owned a majority of shares in Dead Sea Bromine Co., Ltd.; which owned a majority of shares in Bromine Compounds, Ltd.The Dead Sea Companies, as indirect subsidiaries of the State of Israel, were not instrumentalities of Israel under the FSIA at any time. Those companies cannot come within the statutory language which grants status as an instrumentality of a foreign state to an entity a "majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof." § 1603(b)(2). We hold that only direct ownership of a majority of shares by the foreign state satisfies the statutory requirement.Section 1603(b)(2) speaks of ownership. The Dead Sea Companies urge us to ignore corporate formalities and use the colloquial sense of that term. They ask whether, in common parlance, Israel would be said to own the Dead Sea Companies. We reject this analysis. In issues of corporate law structure often matters. It is evident from the Act's text that Congress was aware of settled principles of corporate law and legislated within that context. The language of § 1603(b)(2) refers to ownership of "shares," showing that Congress intended statutory coverage to turn on formal corporate ownership. Likewise, § 1603(b)(1), another component of the definition of instrumentality, refers to a "separate legal person, corporate or otherwise." In light of these indicia that Congress had corporate formalities in mind, we assess whether Israel owned shares in the Dead Sea Companies as a matter of corporate law, irrespective of whether Israel could be said to have owned the Dead Sea Companies in everyday parlance.A basic tenet of American corporate law is that the corporation and its shareholders are distinct entities. See, e. g., First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611, 625 (1983) ("Separate legal personality has been described as 'an almost indispensable aspect of the public corporation' "); Burnet v. Clark, 287 U. S. 410, 415475(1932) ("A corporation and its stockholders are generally to be treated as separate entities"). An individual shareholder, by virtue of his ownership of shares, does not own the corporation's assets and, as a result, does not own subsidiary corporations in which the corporation holds an interest. See 1 W. Fletcher, Cyclopedia of the Law of Private Corporations § 31 (rev. ed. 1999). A corporate parent which owns the shares of a subsidiary does not, for that reason alone, own or have legal title to the assets of the subsidiary; and, it follows with even greater force, the parent does not own or have legal title to the subsidiaries of the subsidiary. See id., § 31, at 514 ("The properties of two corporations are distinct, though the same shareholders own or control both. A holding corporation does not own the subsidiary's property"). The fact that the shareholder is a foreign state does not change the analysis. See First Nat. City Bank, supra, at 626-627 ("[G]overnment instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such").Applying these principles, it follows that Israel did not own a majority of shares in the Dead Sea Companies. The State of Israel owned a majority of shares, at various times, in companies one or more corporate tiers above the Dead Sea Companies, but at no time did Israel own a majority of shares in the Dead Sea Companies. Those companies were subsidiaries of other corporations.The veil separating corporations and their shareholders may be pierced in some circumstances, and the Dead Sea Companies essentially urge us to interpret the FSIA as piercing the veil in all cases. The doctrine of piercing the corporate veil, however, is the rare exception, applied in the case of fraud or certain other exceptional circumstances, see, e. g., Burnet, supra, at 415; Fletcher, supra, §§ 41 to 41.20, and usually determined on a case-by-case basis. The Dead Sea Companies have referred us to no authority for extending the doctrine so far that, as a categorical matter, all subsidiar-476ies are deemed to be the same as the parent corporation. The text of the FSIA gives no indication that Congress intended us to depart from the general rules regarding corporate formalities.Where Congress intends to refer to ownership in other than the formal sense, it knows how to do so. Various federal statutes refer to "direct and indirect ownership." See, e. g., 5 U. S. C. § 8477(a)(4)(G)(iii) (referring to an interest "owned directly or indirectly"); 12 U. S. C. § 84(c)(5) (referring to "any corporation wholly owned directly or indirectly by the United States"); 15 U. S. C. § 79b(a)(8)(A) (referring to securities "which are directly or indirectly owned, controlled, or held with power to vote"); § 1802(3) ("The term 'newspaper owner' means any person who owns or controls directly, or indirectly through separate or subsidiary corporations, one or more newspaper publications"). The absence of this language in 28 U. S. C. § 1603(b) instructs us that Congress did not intend to disregard structural ownership rules.The FSIA's definition of instrumentality refers to a foreign state's majority ownership of "shares or other ownership interest." § 1603(b)(2). The Dead Sea Companies would have us read "other ownership interest" to include a state's "interest" in its instrumentality's subsidiary. The better reading of the text, in our view, does not support this argument. The words "other ownership interest," when following the word "shares," should be interpreted to refer to a type of interest other than ownership of stock. The statute had to be written for the contingency of ownership forms in other countries, or even in this country, that depart from conventional corporate structures. The statutory phrase "other ownership interest" is best understood to accomplish this objective. Reading the term to refer to a state's interest in entities lower on the corporate ladder would make the specific reference to "shares" redundant. Absent a statutory text or structure that requires us to depart from normal rules of construction, we should not construe the statute in477a manner that is strained and, at the same time, would render a statutory term superfluous. See Mertens v. Hewitt Associates, 508 U. S. 248, 258 (1993) ("We will not read the statute to render the modifier superfluous"); United States v. Nordic Village, Inc., 503 U. S. 30, 36 (1992) (declining to adopt a construction that would violate the "settled rule that a statute must, if possible, be construed in such fashion that every word has some operative effect").The Dead Sea Companies say that the State of Israel exercised considerable control over their operations, notwithstanding Israel's indirect relationship to those companies. They appear to think that, in determining instrumentality status under the Act, control may be substituted for an ownership interest. Control and ownership, however, are distinct concepts. See, e. g., United States v. Bestfoods, 524 U. S. 51, 64-65 (1998) (distinguishing between "operation" and "ownership" of a subsidiary's assets for purposes of Comprehensive Environmental Response, Compensation, and Liability Act of 1980 liability). The terms of § 1603(b)(2) are explicit and straightforward. Majority ownership by a foreign state, not control, is the benchmark of instrumentality status. We need not delve into Israeli law or examine the extent of Israel's involvement in the Dead Sea Companies' operations. Even if Israel exerted the control the Dead Sea Companies describe, that would not give Israel a "majority of [the companies'] shares or other ownership interest." The statutory language will not support a control test that mandates inquiry in every case into the past details of a foreign nation's relation to a corporate entity in which it does not own a majority of the shares.The better rule is the one supported by the statutory text and elementary principles of corporate law. A corporation is an instrumentality of a foreign state under the FSIA only if the foreign state itself owns a majority of the corporation's shares.478We now turn to the second question before us, which provides an alternative reason for affirming the Court of Appeals. See Woods v. Interstate Realty Co., 337 U. S. 535, 537 (1949).CTo be entitled to removal under § 1441(d), the Dead Sea Companies must show that they are entities "a majority of whose shares or other ownership interest is owned by a foreign state." § 1603(b)(2). We think the plain text of this provision, because it is expressed in the present tense, requires that instrumentality status be determined at the time suit is filed.Construing § 1603(b) so that the present tense has real significance is consistent with the "longstanding principle that 'the jurisdiction of the Court depends upon the state of things at the time of the action brought.'" Keene Corp. v. United States, 508 U. S. 200, 207 (1993) (quoting Mollan v. Torrance, 9 Wheat. 537, 539 (1824)). It is well settled, for example, that federal-diversity jurisdiction depends on the citizenship of the parties at the time suit is filed. See, e. g., Anderson v. Watt, 138 U. S. 694, 702-703 (1891) ("And the [jurisdictional] inquiry is determined by the condition of the parties at the commencement of the suit"); see also Minneapolis & St. Louis R. Co. v. Peoria & Pekin Union R. Co., 270 U. S. 580, 586 (1926) ("The jurisdiction of the lower court depends upon the state of things existing at the time the suit was brought"). The Dead Sea Companies do not dispute that the time suit is filed is determinative under § 1332(a)(4), which provides for suits between "a foreign state, defined in section 1603(a) ... , as plaintiff and citizens of a State or of different States." It would be anomalous to read § 1441(d)'s words, "foreign state as defined in section 1603(a)," differently.The Dead Sea Companies urge us to administer the FSIA like other status-based immunities, such as the qualified immunity accorded a state actor, that are based on the status479of an officer at the time of the conduct giving rise to the suit. We think its comparison is inapt. Our cases applying those immunities do not involve the interpretation of a statute. See, e. g., Spalding v. Vilas, 161 U. S. 483, 493-499 (1896) (basing a decision regarding official immunity on common law and considerations of "convenience and public policy"); Scheuer v. Rhodes, 416 U. S. 232, 239-242 (1974).The reason for the official immunities in those cases does not apply here. The immunities for government officers prevent the threat of suit from "crippl[ing] the proper and effective administration of public affairs." Spalding, supra, at 498 (discussing immunity for executive officers); see also Pierson v. Ray, 386 U. S. 547, 554 (1967) (judicial immunity serves the public interest in judges who are "at liberty to exercise their functions with independence and without fear of consequences" (internal quotation marks omitted)). Foreign sovereign immunity, by contrast, is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns. Verlinden, 461 U. S., at 486.For the same reason, the Dead Sea Companies' reliance on Nixon v. Fitzgerald, 457 U. S. 731 (1982), is unavailing. There, we recognized that the President was immune from liability for official actions taken during his time in office, even against a suit filed when he was no longer serving in that capacity. The immunity served the same function that the other official immunities serve. See id., at 751 ("Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government"). As noted above, immunity under the FSIA does not serve the same purpose.The immunity recognized in Nixon was also based on a further rationale, one not applicable here: the constitutional480Opinion of BREYER, J.separation of powers. See id., at 749 ("We consider this immunity a functionally mandated incident of the President's unique office, rooted in the constitutional tradition of the separation of powers and supported by our history"). That rationale is not implicated by the statutory immunity Congress created for actions such as the one before us.Any relationship recognized under the FSIA between the Dead Sea Companies and Israel had been severed before suit was commenced. As a result, the Dead Sea Companies would not be entitled to instrumentality status even if their theory that instrumentality status could be conferred on a subsidiary were accepted.***For these reasons, we hold first that a foreign state must itself own a majority of the shares of a corporation if the corporation is to be deemed an instrumentality of the state under the provisions of the FSIA; and we hold second that instrumentality status is determined at the time of the filing of the complaint.The judgment of the Court of Appeals in No. 01-594 is affirmed, and the writ of certiorari in No. 01-593 is dismissed.It is so ordered

OCTOBER TERM, 2002SyllabusDOLE FOOD CO. ET AL. V. PATRICKSON ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 01-593. Argued January 22, 2003-Decided April 22, 2003*Plaintiffs filed a state-court action against Dole Food Company and others (Dole petitioners), alleging injury from chemical exposure. The Dole petitioners impleaded petitioners Dead Sea Bromine Co. and Bromine Compounds, Ltd. (collectively, the Dead Sea Companies). The Dole petitioners removed the action to federal court under 28 U. S. C. § 1441(a), arguing that the federal common law of foreign relations provided federal-question jurisdiction under § 1331. The District Court agreed it had jurisdiction, but dismissed the case on other grounds. As to the Dead Sea Companies, the court rejected their claim that they are instrumentalities of a foreign state (Israel) as defined by the Foreign Sovereign Immunities Act of 1976 (FSIA), and are therefore entitled to removal under § 1441(d). The Ninth Circuit reversed. As to the Dole petitioners, it held removal could not rest on the federal common law of foreign relations. Regarding the Dead Sea Companies, the court noted, but declined to answer, the question whether status as an instrumentality of a foreign state is assessed at the time of the alleged wrongdoing or at the time suit is filed. It held that the Dead Sea Companies, even at the earlier date, were not instrumentalities of Israel because they did not meet the FSIA's instrumentality definition.Held:1. The writ of certiorari is dismissed in No. 01-593, as the Dole petitioners did not seek review in this Court of the Ninth Circuit's ruling on the federal common law of foreign relations. P. 472.2. A foreign state must itself own a majority of a corporation's shares if the corporation is to be deemed an instrumentality of the state under the FSIA. Israel did not have direct ownership of shares in either of the Dead Sea Companies at any time pertinent to this action. Rather, they were, at various times, separated from Israel by one or more intermediate corporate tiers. As indirect subsidiaries of Israel, the companies cannot come within the statutory language granting instrumentality status to an entity a "majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof."*Together with No. 01-594, Dead Sea Bromine Co., Ltd., et al. v. Patrickson et al., also on certiorari to the same court.469§ 1603(b)(2). Only direct ownership satisfies the statutory requirement. In issues of corporate law structure often matters. The statutory reference to ownership of "shares" shows that Congress intended coverage to turn on formal corporate ownership. As a corporation and its shareholders are distinct entities, see, e. g., First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611, 625, a corporate parent which owns a subsidiary's shares does not, for that reason alone, own or have legal title to the subsidiary's assets; and, it follows with even greater force, the parent does not own or have legal title to the subsidiary's subsidiaries. The veil separating corporations and their shareholders may be pierced in certain exceptional circumstances, but the Dead Sea Companies refer to no authority for extending the doctrine so far that, as a categorical matter, all subsidiaries are deemed to be the same as the parent corporation. Various federal statutes refer to "direct or indirect ownership." The absence of this language in § 1603(b) instructs the Court that Congress did not intend to disregard structural ownership rules here. That section's "other ownership interest" phrase, when following the word "shares," should be interpreted to refer to a type of interest other than stock ownership. Reading the phrase to refer to a state's interest in entities further down the corporate ladder would make the specific reference to "shares" redundant. The fact that Israel exercised considerable control over the companies may not be substituted for an ownership interest, since control and ownership are distinct concepts, and it is majority ownership by a foreign state, not control, that is the benchmark of instrumentality status. Pp. 473-478.3. Instrumentality status is determined at the time of the filing of the complaint. Construing § 1603(b)(2) so that the present tense in the provision "a majority of whose shares ... is owned by a foreign state" has real significance is consistent with the longstanding principle that the Court's jurisdiction depends upon the state of things at the time the action is brought. E. g., Keene Corp. v. United States, 508 U. S. 200, 207. The Dead Sea Companies' attempt to compare foreign sovereign immunity with other immunities that are based on a government officer's status at the time of the conduct giving rise to the suit is inapt because the reason for those other immunities does not apply here. Unlike those immunities, foreign sovereign immunity is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give them some protection from the inconvenience of suit as a gesture of comity, Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 486. Because any relationship recognized under the FSIA between the Dead Sea Companies and Israel had been severed before suit was commenced, the companies would not be entitled to in-470Full Text of Opinion

1971_70-58

MR. JUSTICE BLACKMUN delivered the opinion of the Court.Petitioner Oliver T. Fein is a doctor of medicine. In February, 1969, he filed this pre-induction suit in the United States District Court for the Southern District of New York. Jurisdiction was asserted under the federal question statute, 28 U.S.C. § 1331, under the civil rights statute, 28 U.S.C. § 1343, and under the federal officer statute, 28 U.S.C. § 1361. Fein challenged, on Page 405 U. S. 367 due process grounds, the constitutionality of his Selective Service appeal procedures and sought declaratory and injunctive relief that would prevent his induction into military service. The defendants are Fein's local board at Yonkers, New York, the Appeal Board for the Southern District, the State Selective Service Director, and the National Appeal Board.In an unreported memorandum decision, the District Court dismissed the complaint for want of jurisdiction. A divided panel of the Second Circuit affirmed. 430 F.2d 376 (1970). Certiorari was granted, 401 U.S. 953 (1971), so that this Court might consider the important question whether § 10(b)(3) of the Military Selective Service Act of 197, 50 U.S.C.App. § 460(b)(3), [Footnote 1] permits this pre-induction challenge to Selective Service appeal procedures. Page 405 U. S. 368IFein, born May 5, 1940, registered with his Yonkers local board at age 18. He was assigned a II-S student deferment during his undergraduate years at Swarthmore College and, subsequently, during the period of his attendance at Case-Western Reserve University School of Medicine. Upon graduation from medical school, Fein was assigned a II-A occupational deferment because of his internship at Cleveland Metropolitan General Hospital.In September, 1967, while still an intern, Fein wrote his local board "to declare myself a conscientious objector to war and the institution which propagates war, the military." He requested and received SSS Form 150 for conscientious objectors. He promptly completed and returned the form to the local board.In the form, Fein stated: He believes in a Supreme Being. The beliefs from which his conscientious objection springs include the concepts that "human beings are primarily good,'" that this goodness "can only be realized, if human beings are allowed to fulfill their potential," and that "all human beings are fundamentally equal, in terms of their value as human beings." War violates "this essential being in all men. . . ." It "fosters irresponsibility for inhuman and cruel acts." It "demands a style of life which is violent and hierarchical. It curbs and extinguishes, rather than expands, man's potential." The"substance of my beliefs stems from this common foundation of all religions. Thus, my beliefs are not merely a personal moral code, but are ideals which emanate from centuries of religious tradition."He attributes the shaping of his beliefs to four principal sources: his parents, the church he formerly belonged to (a Lutheran body), the civil rights movement, and medicine. He believes "in the power Page 405 U. S. 369 and values of moral and ethical force," but rejects "violent force" except perhaps in defense of self or of a loved one. His ideals were not articulated by age 18, but he began to formulate them at Swarthmore. Then followed a trip to the South; his break with his church; a summer in Germany where he learned of "biased American journalism about Cuba"; his helping organize a trip by students to Cuba; his interest in SNCC; his work in the slums of San Francisco; his settling in Cleveland's "Negro ghetto" during his first year at medical school; his then "full commitment to non-violence"; his contact with Students for a Democratic Society, which provided "a framework for working out my ideals about justice and equality"; and his "commitment to cooperative living and the poor community [which] stands as a mature expression of my beliefs." Upon receiving Fein's Form 150 and letters supportive of his claim, the local board invited him to appear personally before it. He did so on November 15, 1967. After the interview, the board denied him a I-O classification "at this time." Inasmuch as Fein then held his II-A classification, this action by the board was consistent with Selective Service Regulation 32 CFR § 1623.2 providing that a registrant be placed in the lowest class for which he is eligible. In February, 1968, however, Fein was reclassified I-A. He immediately asked for another personal appearance before the board. The request was granted, and he appeared on May 27. The board then classified him as I-O, and thus gave him his desired conscientious objector classification. On June 4, the State Director, pursuant to 32 CFR § 1626.1, wrote the appeal board requesting an appeal and stating, "It is our opinion that the registrant would not qualify for a I-O classification as a conscientious objector." Notice of this was given Dr. Fein by mail. Page 405 U. S. 370 Fein then wrote seeking "a statement indicating the basis for the State Director's appeal" and an opportunity to reply. No explanation was forthcoming. The local board forwarded the file to the appeal board. Accompanying the file was a so-called "brief." This, as petitioner has conceded, [Footnote 2] was merely a summary of the file prepared by a lay employee of the board. The appeal board, by a unanimous 4-0 vote on June 20, classified Dr. Fein I-A, and thus rejected his claim to conscientious objector status. The board stated no reasons for its decision. Fein was notified of his reclassification. Under 32 CFR § 1627.3, [Footnote 3] a registrant was not entitled to take an appeal to the presidential, or national, appeal board from an adverse classification by the state appeal board made by a unanimous vote. Fein was in this position. Accordingly, he wrote the National Director of Selective Service in July and asked that the Director appeal on his behalf under 32 CFR § 1627.1(a). Fein's letter to the Director was detailed. It emphasized his above-stated beliefs and the way of life to which those beliefs had guided him. "It should be clear that I am willing to serve my country, but only in activities consistent with my conscience." Fein outlined the administrative proceedings and listed five claimed inequities: (1) the appeal board's rejection, upon the appeal by the State Director, of the local board's classification; (2) the failure of the Director to state the basis for his challenge; (3) the absence of an opportunity to submit supplemental information before the file was forwarded; (4) the absence of an opportunity to rebut the State Director's decision to take an appeal; and (5) the absence of an opportunity for a personal appearance before the appeal board. Page 405 U. S. 371On July 31, Fein was ordered to report for induction September 6.The National Director, however, complied with Fein's request and noted an appeal. Fein's outstanding induction order was canceled. He again asked the State Director for a statement of reasons. He was now advised that, in the State Director's opinion, he did not qualify for a Class I-O deferment, and that the decision to appeal "was based upon the information contained in [his] selective service file."On November 26, 1968, the national board, by a vote of 3-0, classified Dr. Fein I-A. No reason for this action was stated.No new order that Fein report for induction has been issued.Fein then instituted this suit. The complaint alleged that the statute and regulations governing Fein's classification and appeal violated the Due Process Clause of the Fifth Amendment in that they did not provide for a statement of reasons to the registrant for the State Director's decision to appeal, or for the appeal board's subsequent decision denying Fein a I-O classification. It also alleged that the defendants acted unconstitutionally by failing to provide Fein with the statements of reasons, by failing to permit him to submit additional material for consideration by the appeal boards, and by refusing him an opportunity to rebut the State Director's decision to appeal.The District Court did not reach the merits of the constitutional claims. While expressing concern about Fein's ability to establish jurisdiction, the court assumed, arguendo, that he had done so, but then concluded that the suit was barred by § 10(b)(3).The Second Circuit affirmed, 430 F.2d at 377-380, relying, as did the District Court, upon Oestereich v. Selective Service Board, 393 U. S. 233 (1968); Clark v. Page 405 U. S. 372 Gabriel, 393 U. S. 256 (1968); and Boyd v. Clark, 287 F. Supp. 561 (SDNY 1968), aff'd, 393 U. S. 316 (1969). One judge, in separate concurrence, 40 F.2d at 380, also thought that Fein had failed to establish the jurisdictional amount required under 28 U.S.C. § 1331. The third judge, citing the same cases as did the majority, dissented on the statutory issue; on the merits, he would have ruled in Fein's favor. 430 F.2d at 380-388.IIThe case pivots, of course, upon the meaning and reach of § 10(b)(3), and this Court's decisions in Oestereich, Gabriel, and Boyd, all supra, and in Breen v. Selective Service Board, 396 U. S. 460 (1970).Section 10(b)(3) states flatly that a classification decision of the local board "shall be final, except where an appeal is authorized . . . ," and that the classification decision on appeal also "shall be final. . . ." It further provides,"No judicial review shall be made of the classification or processing of any registrant . . . except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction. . . ."Even then, the review "shall go to the question of the jurisdiction . . . only when there is no basis in fact for the classification. . . ."The finality language appeared in conscription statutes prior to the 1967 Act. See Selective Draft Act of May 18, 1917, § 4, 40 Stat. 80; Selective Training and Service Act of 1940, § 10(a)(2), 54 Stat. 893; and Selective Service Act of 1948, § 10(b)(3), 62 Stat. 619. The Court construed this finality language, however, as indicating a congressional intent to restrict only the scope of judicial review, and not to deprive the registrant of all access to the courts. See, for example, Estep v. United States, 327 U. S. 114 (1946), and McKart v. Page 405 U. S. 373 United States, 395 U. S. 185 (1969). But judicial relief was confined to the "no basis in fact," situation. Estep, supra, at 327 U. S. 122-123; McKart, supra, at 395 U. S. 196.The "except" clause and the "no basis in fact," language came into § 10(b)(3) with the 1967 statute by way of prompt congressional reaction provoked by the Second Circuit's decision in Wolf v. Selective Service Local Bd., 372 F.2d 817 (1967). See H.R.Rep. No. 267, 90th Cong., 1st Sess., 30-31; 113 Cong.Rec. 15426. [Footnote 4]Section 10(b)(3), as so amended, was promptly challenged. In Oestereich, the Court refrained from striking down the statute on constitutional grounds. It held, however, that pre-induction judicial review was available to that petitioner who, as a divinity student, claimed his local board had wrongfully denied him a statutory exemption from military service. To rule otherwise "is to construe the Act with unnecessary harshness." And "No one, we believe, suggests that § 10(b)(3) can sustain a literal reading." This construction, it was said, leaves the section "unimpaired in the normal operations of the Act." 393 U.S. at 393 U. S. 238. See Gutknecht v. United States, 396 U. S. 295, 396 U. S. 303 (1970), where reference was made to the "unusual circumstances" of Oestereich.In the companion Gabriel case, on the other hand, the registrant was asserting a conscientious objector claim. The Court said:"Oestereich, as a divinity student, was by statute unconditionally entitled to exemption. Here, by contrast, there is no doubt of the Board's statutory authority to take action which appellee challenges, and that action inescapably involves a determination Page 405 U. S. 374 of fact and an exercise of judgment. . . . To allow pre-induction judicial review of such determinations would be to permit precisely the kind of 'litigious interruptions of procedures to provide necessary military manpower' (113 Cong.Rec. 15426 (report by Senator Russell on Conference Committee action)) which Congress sought to prevent when it enacted § 10(b)(3)."393 U.S. at 393 U. S. 258-259. The constitutionality of the statute again was upheld. Id. at 393 U. S. 259. MR. JUSTICE DOUGLAS, separately concurring, noted hypothetical fact situations as to which he might take a different view, and then observed:"But, in my view, it takes the extreme case where the Board can be said to flout the law, as it did in Oestereich v. Selective Service Bd., [393 U.S. 233], to warrant pre-induction review of its actions."393 U.S. at 393 U. S. 260. Oestereich was complemented by Breen a year later with respect to a registrant statutorily entitled to a deferment, rather than to an exemption. See also Kolden v. Selective Service Board, 397 U. S. 47 (1970).Finally, pre-induction review was denied under § 10(b)(3) in Boyd v. Clark, 287 F. Supp. 561 (SDNY 1968), a decision affirmed here, 393 U. S. 316 (1969), with only a single reference to Gabriel, decided just four weeks before. In Boyd, four registrants, each classified I-A, challenged student deferment on the ground that it discriminated against those financially unable to attend college. They did not otherwise contest their own I-A classifications.Thus, Oestereich, Gabriel, Breen, and Boyd together establish the principles (a) that § 10(b)(3) does not foreclose pre-induction judicial review in that rather rare instance where administrative action, based on reasons unrelated to the merits of the claim to exemption or Page 405 U. S. 375 deferment, deprives the registrant of the classification to which, otherwise and concededly, he is entitled by statute, and (b) that § 10(b)(3) does foreclose pre-induction judicial review in the more common situation where the board, authoritatively, has used its discretion and judgment in determining facts and in arriving at a classification for the registrant. In the latter case, the registrant's judicial review is confined -- and constitutionally so -- to the situations where he asserts his defense in a criminal prosecution or where, after induction, he seeks a writ of habeas corpus. By these cases, the Court accommodated constitutional commands with the several provisions of the Military Selective Service Act and the expressed congressional intent to prevent litigious interruption of the Selective Service process.IIIThese principles do not automatically decide Fein's case. The doctor, unlike Oestereich and unlike Breen, cannot and does not claim a statutory exemption or a statutory deferment on the basis of objectively established and conceded status. On the other hand, while Gabriel focuses on the administrative and discretionary process, it does not necessarily foreclose Fein's claim. This is so because Fein challenges the constitutionality of the very administrative procedures by which, he claims, the presentation of his case was adversely affected.This was the aspect of the Oestereich and Breen decisions that concerned Mr. Justice Harlan. 393 U.S. at 393 U. S. 239; 396 U.S. at 396 U. S. 468-469. He would have allowed pre-induction judicial review of a procedural challenge on constitutional grounds if it presented no "opportunity for protracted delay" in the system's operations, and if the issue was beyond the competence of the board to hear and determine. This view, however, commanded the vote of no other member of the Court. Page 405 U. S. 376We again conclude that the line drawn by the Court between Oestereich and Breen, on the one hand, and Gabriel and, inferentially, Boyd, on the other, is the appropriate place at which, in the face of the bar of § 10(b)(3), to distinguish between availability and unavailability of pre-induction review. We therefore adhere to the principles established by those cases.We further conclude that, as measured against the facts of Fein's case, it is Gabriel, and not Oestereich and Breen, that is controlling. Unlike the registrants in Oestereich and Breen, Fein's claimed status is not one that was factually conceded, and thus was assured by the statute upon objective criteria. His administrative classification action was, in contrast, a product of the "process" and the "system of classification," as the petitioner stressed at oral argument. [Footnote 5] It turned "on the weight and credibility of the testimony," as MR. JUSTICE DOUGLAS noted in his concurrence in Gabriel, 393 U.S. at 393 U. S. 259. And it was "dependent upon an act of judgment by the Board." Gabriel, 393 U.S. at 393 U. S. 258.The case strikes us, as did Gabriel, as representative of a category that, if allowed pre-induction review, would tend to promote the "litigious interruptions of procedures to provide necessary military manpower" that Congress intended to prevent. 113 Cong.Rec. 15426. The conscientious objector claim is one ideally fit for administrative determination.We are not persuaded, as has been suggested, [Footnote 6] that the local board's grant of the I-O classification equates with the conceded exemption and deferment involved in Oestereich and Breen. Objective certainty of status is lacking; in addition, the respective rulings of the two appeal boards were themselves based on an evaluation of the same file, and yet were opposite to that of the Page 405 U. S. 377 local board. It is true that, in Oestereich and Breen, a result favorable to the registrant was also reversed, but there the change came about only by the board's consideration of extraneous circumstances apart from the merits of the underlying claims.Finally, we find no merit in the petitioner's argument, apparently asserted for the first time in this Court, that a local board's determination, on a conscientious objector claim, favorable to the registrant is not amenable to the appeal procedures prescribed by the Act. Section 10(b)(3), by its terms, makes a board's decision final subject to appeal, and we see no confinement of that right of appeal to the registrant alone so as to nullify the regulations' express grant of appellate power to the State Director as well as to the registrant. The statute, furthermore, is specific as to the President's right to review.The conclusion we have reached makes it unnecessary to consider in any detail the propositions, urged by the respondents, that the petitioner has not demonstrated the presence of the jurisdictional amount required under 28 U.S.C. § 1331, and that his arguments are premature because he is presently not the subject of an outstanding induction order.IVAll this does not mean, however, that this decision assures Dr. Fein's immediate induction into military service. Events since the inception and trial of the case indicate otherwise:A. The 1971 Statute. By Pub.L. 92-129, § 101(a) (36), 85 Stat. 353, approved September 28, 1971, the following new section, 50 U.S.C.App. § 471a (1970 ed. Supp. I), was added to the 1967 Act, now renamed the Military Selective Service Act:"Procedural Rights" "SEC. 22.(a) It is hereby declared to be the purpose of this section to guarantee to each registrant Page 405 U. S. 378 asserting a claim before a local or appeal board a fair hearing consistent with the informal and expeditious processing which is required by selective service cases.""(b) Pursuant to such rules and regulations as the President may prescribe --""(1) Each registrant shall be afforded the opportunity to appear in person before the local or any appeal board of the Selective Service System to testify and present evidence regarding his status.""* * * *" "(4) In the event of a decision adverse to the claim of a registrant, the local or appeal board making such decision shall, upon request, furnish to such registrant a brief written statement of the reasons for its decision."A registrant thus is now statutorily entitled to a personal appearance before a local or appeal board and, on request, to a statement of reasons for any decision of the board adverse to him. This 1971 addition to the statute does not, by its terms, purport to be retroactive.B. The Emerging Regulations. In implementation of the new statute, the administrative regulations have been undergoing change. Some amendments were promulgated effective December 10, 1971. 36 Fed.Reg. 23374-23385. Others were promulgated effective March 11, 1972. 37 Fed.Reg. 5120-5127. From these it appears that all, or nearly all, the procedural features about which Dr. Fein complains in the present case have been changed administratively. Specifically: (1) When an appeal is taken by the State Director, "he shall place in the registrant's file a written statement of his reasons for taking such appeal." The local board shall notify the registrant in writing of the action and the reasons therefor, and advise him that the registrant may request Page 405 U. S. 379 a personal appearance before the appeal board. §§ 1626.3(a) and (b). (2) At such personal appearance, the registrant may present evidence, discuss his classification, point out the class or classes in which he thinks he should have been placed, and may direct attention to any information in his file that he believes the local board has overlooked or to which it has given insufficient weight. He may present such further information as he believes will assist the board. The registrant, however, may not be represented before an appeal board by anyone acting as attorney, and he shall not be entitled to present witnesses. §§ 1624.4(e) and (d). (3) If the appeal board classifies the registrant in a class other than the one he requested, it shall record its reasons therefor in his file. The local board shall inform the registrant of such reasons in writing at the time it mails his notice of classification. § 1626.4(i). (4) On the director's appeal to the national board, the registrant may request an appearance. § 1627.3(d). At that appearance, the registrant may present evidence, other than witnesses, bearing on his classification. There, too, he may discuss his classification, point out the class or classes in which he thinks he should have been placed, and direct attention to any information in his file that he believes the local board overlooked or to which it has given insufficient weightHe may also present such further information as he believes will assist the national board in determining his proper classification. §§ 1627.4(c) and (e). (5) If the national board classifies the registrant in a class other than the one he requested, it shall record its reasons therefor in his file, and, on request by the registrant, it shall furnish him a brief statement of the reasons for its decision. § 1627.4(h).Thus, under present procedure effective in part since December 10, 1971, and in part since March 11, 1972, Page 405 U. S. 380 complaints about one's inability to appear before appeal boards, about not being given reasons for adverse classifications, and about inability to present additional material at the appellate stages are all alleviated, and, indeed, eliminated.C. The Change in the Government's Position. In their brief filed prior to the adoption of the 1971 Act, the respondents acknowledged the appearance of "a relatively recent line of authority" exemplified by United States v. Haughton, 413 F.2d 736 (CA9 1969), to the effect that the failure of a local board to articulate in writing the reason for its denial of a conscientious objector classification is a fatal procedural flaw when the registrant has made a prima facie case for such status. [Footnote 7] Brief 52-53. The rationale is that some statement of reasons is necessary for "meaningful" review [Footnote 8] of the administrative decision when the registrant's claim has met the statutory criteria or has placed him prima facie within the statutory exemption and his veracity is the principal issue.The respondents appropriately noted, however, that these decisions were all so-called post-induction cases in the sense that they were appeals from convictions under § 12(a), 50 U.S.C.App. § 462(a). The respondents accordingly took the position that this line of authority, however appropriate it might be for post-induction review, did not support or justify an exception Page 405 U. S. 381 to the bar of § 10(b)(3) against pre-induction review of the processing or classifying of registrants.In a memorandum filed here since the 1971 Act in No. 70-251, Joseph v. United States, cert. granted, 404 U.S. 820 (1971), the Government has now taken the position that,"[a]lthough this judicial rule [of Haughton and its progeny] finds little support in early precedent . . . , we do not think it appropriate to contend that it is erroneous."The Government also notes that the requirement for an administrative statement of reasons "seems fully consistent with the new statutory . . . and regulatory . . . provisions on this point." Memo 13, 14.While Joseph also is a conviction case, and is not one on pre-induction review, its obvious significance for Fein is that, if the doctor is ever again called for induction, the rule of Haughton will provide a defense for him unless and until the requirements of the new statute and regulations are fulfilled. Whether this necessitates a complete reprocessing of Fein's case is a matter we leave in the first instance to the administrative authorities.The judgment of the Court of Appeals is therefore to be affirmed. We express no view upon the merits of Dr. Fein's conscientious objector claim other than to observe the obvious, namely, that his claim is not frivolous.Affirmed

U.S. Supreme CourtFein v. Selective Service System, 405 U.S. 365 (1972)Fein v. Selective Service System Local Board No. 7of Yonkers, New YorkNo. 70-58Argued October 12, 1971Decided March 21, 1972405 U.S. 365SyllabusFollowing petitioner's classification as a conscientious objector by his local Selective Service Board, the State Director requested an appeal. Petitioner was notified, but was not furnished with the basis for the appeal or given an opportunity to reply. The appeal board unanimously classified petitioner I-A and rejected his conscientious objector claim without stating any reasons therefor. Petitioner was not entitled under the regulations to appeal to the national board, but the National Director, on petitioner's request, did note an appeal. The national board unanimously classified petitioner I-A, with no reasons given. There is no outstanding induction order for petitioner, who brought this pre-induction suit challenging, on due process grounds, the constitutionality of his Selective Service appeal procedures. The District Court dismissed the complaint, finding the suit barred by § 10(b)(3) of the Military Selective Service Act of 1967, and the Court of Appeals affirmed. That section provides that a classification decision of the local board "shall be final, except where an appeal is authorized," and that the classification decision on appeal also "shall be final." It further provides that"[n]o judicial review shall be made of the classification or processing of any registrant . . . except as a defense to a criminal prosecution . . . after the registrant has responded either affirmatively or negatively to an order to report for induction,"and then the review "shall go to the question of the jurisdiction . . . only when there is no basis in fact, for the classification." By statute enacted in September, 1971, after petitioner's trial, a registrant is entitled to a personal appearance before a local or appeal board, and, on request, to a statement of reasons for any adverse decision. Ensuing changes in regulation, effective December, 1971, and March, 1972, provide the procedural features that petitioner complained were lacking.Held:1. Section 10(b)(3) forecloses pre-induction judicial review where the board has used its discretion and judgment in determining facts and arriving at a classification for the registrant. Clark Page 405 U. S. 366 v. Gabriel, 393 U. S. 256, followed; Oestereich v. Selective Service Board, 393 U. S. 233, distinguished. In such case, the registrant's judicial review is confined to situations where he asserts his defense in a criminal prosecution or where, after induction, he seeks a writ of habeas corpus. Pp. 405 U. S. 372-377.2. Petitioner's immediate induction is not assured, however, in light of the intervening statutory change, the new regulations thereunder, and a change in the Government's position, albeit in a post-induction case, to concede that some statement of reasons is necessary for "meaningful" review of the administrative decision when the registrant's claim has met the statutory criteria or has placed him prima facie within the statutory exemption. Pp. 405 U. S. 377-381.430 F.2d 376, affirmed.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN and WHITE, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 405 U. S. 381. MARSHALL, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 405 U. S. 387. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.

1960_164

MR. JUSTICE CLARK delivered the opinion of the Court.In this action for declaratory and injunctive relief, it is admitted that the Eagle Coffee Shoppe, Inc., a restaurant located within an off-street automobile parking building in Wilmington, Delaware, has refused to serve appellant food or drink solely because he is a Negro. The parking building is owned and operated by the Wilmington Parking Authority, an agency of the State of Delaware, and the restaurant is the Authority's lessee. Appellant claims that such refusal abridges his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Supreme Court of Delaware has held that Eagle was acting in "a purely private capacity" under its lease; that its action was not that of the Authority, and was not, therefore, state action within the contemplation of the prohibitions contained in that Amendment. It also held that, under 24 Del.Code Page 365 U. S. 717 § 1501, [Footnote 1] Eagle was a restaurant, not an inn, and that, as such, it "is not required [under Delaware law] to serve any and all persons entering its place of business." ___ Del. ___, 157 A.2d 894, 902. On appeal here from the judgment as having been based upon a statute construed unconstitutionally, we postponed consideration of the question of jurisdiction under 28 U.S.C. § 1257(2), to the hearing on the merits. 364 U.S. 810. We agree with the respondents that the appeal should be dismissed, and accordingly the motion to dismiss is granted. However, since the action of Eagle in excluding appellant raises an important constitutional question, the papers whereon the appeal was taken are treated as a petition for a writ of certiorari, 28 U.S.C. § 2103, and the writ is granted. 28 U.S.C. § 1257(3). On the merits, we have concluded that the exclusion of appellant under the circumstances shown to be present here was discriminatory state action in violation of the Equal Protection Clause of the Fourteenth Amendment.The Authority was created by the City of Wilmington pursuant to 22 Del.Code, §§ 501-515. It is "a public body corporate and politic, exercising public powers of the State as an agency thereof." § 504. Its statutory purpose is to provide adequate parking facilities for the convenience of the public, and thereby relieve the "parking crisis, which threatens the welfare of the community. . . ." § 501(7), (8) and (9). To this end, the Page 365 U. S. 718 Authority is granted wide powers including that of constructing or acquiring by lease, purchase or condemnation, lands and facilities, and that of leasing"portions of any of its garage buildings or structures for commercial uses by the lessee where, in the opinion of the Authority, such leasing is necessary and feasible for the financing and operation of such facilities."§ 504(a). The Act provides that the rates and charges for its facilities must be reasonable, and are to be determined exclusively by the Authority"for the purposes of providing for the payment of the expenses of the Authority, the construction, improvement, repair, maintenance, and operation of its facilities and properties, the payment of the principal of and interest on its obligations, and to fulfill the terms and provisions of any agreements made with the purchasers or holders of any such obligations or with the city."§ 504(b)(8). The Authority has no power to pledge the credit of the State of Delaware, but may issue its own revenue bonds, which are tax exempt. Any and all property owned or used by the Authority is likewise exempt from state taxation.The first project undertaken by the Authority was the erection of a parking facility on Ninth Street in downtown Wilmington. The tract consisted of four parcels, all of which were acquired by negotiated purchases from private owners. Three were paid for in cash, borrowed from Equitable Security Trust Company, and the fourth, purchased from Diamond Ice and Coal Company, was paid for"partly in Revenue Bonds of the Authority and partly in cash ($934,000) donated by the City of Wilmington, pursuant to 22 Del.C. c. 5. . . . Subsequently, the City of Wilmington gave the Authority $1,822,827.69, which sum the Authority applied to the redemption of the Revenue Bonds delivered to Diamond Ice & Coal Co. and to the repayment of the Equitable Security Trust Company loan. "Page 365 U. S. 719Before it began actual construction of the facility, the Authority was advised by its retained experts that the anticipated revenue from the parking of cars and proceeds from sale of its bonds would not be sufficient to finance the construction costs of the facility. Moreover, the bonds were not expected to be marketable if payable solely out of parking revenues. To secure additional capital needed for its "debt-service" requirements, and thereby to make bond financing practicable, the Authority decided it was necessary to enter long-term leases with responsible tenants for commercial use of some of the space available in the projected "garage building." The public was invited to bid for these leases.In April, 1957, such a private lease, for 20 years and renewable for another 10 years, was made with Eagle Coffee Shoppe, Inc., for use as a "restaurant, dining room, banquet hall, cocktail lounge and bar, and for no other use and purpose." The multi-level space of the building which was let to Eagle, although"within the exterior walls of the structure, has no marked public entrance leading from the parking portion of the facility into the restaurant proper . . . , [whose main entrance] is located on Ninth Street."157 A.2d at 899. In its lease, the Authority covenanted to complete construction expeditiously, including completion of "the decorative finishing of the leased premises and utilities therefor, without cost to Lessee," including necessary utility connections, toilets, hung acoustical tile and plaster ceilings; vinyl asbestos, ceramic tile and concrete floors; connecting stairs and wrought iron railings; and wood-floored show windows. Eagle spent some $220,000 to make the space suitable for its operation and, to the extent such improvements were so attached to realty as to become part thereof, Eagle to the same extent enjoys the Authority's tax exemption. Page 365 U. S. 720The Authority further agreed to furnish heat for Eagle's premises, gas service for the boiler room, and to make, at its own expense, all necessary structural repairs, all repairs to exterior surfaces except store fronts and any repairs caused by lessee's own act or neglect. The Authority retained the right to place any directional signs on the exterior to the let space which would not interfere with or obscure Eagle's display signs. Agreeing to pay an annual rental of $28,700, Eagle covenanted to"occupy and use the leased premises in accordance with all applicable laws, statutes, ordinances and rules and regulations of any federal, state or municipal authority."Its lease, however, contains no requirement that its restaurant services be made available to the general public on a nondiscriminatory basis, in spite of the fact that the Authority has power to adopt rules and regulations respecting the use of its facilities except any as would impair the security of its bondholders. § 511.Other portions of the structure were leased to other tenants, including a bookstore, a retail jeweler, and a food store. Upon completion of the building, the Authority located at appropriate places thereon official signs indicating the public character of the building, the flew from mastheads on the roof both the state and national flags.In August, 1958, appellant parked his car in the building and walked around to enter the restaurant by its front door on Ninth Street. Having entered and sought service, he was refused it. Thereafter, he filed this declaratory judgment action in the Court of Chancery. On motions for summary judgment, based on the pleadings and affidavits, the Chancellor concluded, contrary to the contentions of respondents, that whether in fact the lease was a "device" or was executed in good faith, it would not "serve to insulate the public authority from the force and effect of the Fourteenth Amendment." 150 A.2d 197, 198. He found it not necessary, therefore, to pass upon Page 365 U. S. 721 the rights of private restaurateurs under state common and statutory law, including 24 Del.Code § 1501. The Supreme Court of Delaware reversed, as we mentioned above, holding that Eagle, "in the conduct of its business, is acting in a purely private capacity." It therefore denied appellant's claim under the Fourteenth Amendment. Upon reaching the application of state law, it held, contrary to appellant's assertion that Eagle maintained an inn, that Eagle's operation was "primarily a restaurant and thus subject to the provisions of 24 Del.C. § 1501, which does not compel the operator of a restaurant to give service of all persons seeking such." 157 A.2d at 902. Delaware's highest court has thus denied the equal protection claim of the appellant, as well as his state law contention concerning the applicability of § 1501.On the jurisdictional question, we agree that the judgment of Delaware's court does not depend for its ultimate support upon a determination of the constitutional validity of a state statute, but rather upon the holding that, on the facts, Eagle's racially discriminatory action was exercised in "a purely private capacity," and that it was, therefore, beyond the prohibitive scope of the Fourteenth Amendment.The Civil Rights Cases, 109 U. S. 3 (1883), "embedded in our constitutional law" the principle"that the action inhibited by the first section [Equal Protection Clause] of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful."Chief Justice Vinson, in Shelley v. Kraemer, 334 U. S. 1, 334 U. S. 13 (1948). It was language in the opinion in the Civil Rights Cases, supra, that phrased the broad test of state responsibility under the Fourteenth Amendment, predicting its consequence upon "state action of every kind . . . which denies . . . Page 365 U. S. 722 the equal protection of the laws." At p. 109 U. S. 11. And only two Terms ago, some 75 years later, the same concept of state responsibility was interpreted as necessarily following upon "state participation through any arrangement, management, funds or property." Cooper v. Aaron, 358 U. S. 1, 358 U. S. 4 (1958). It is clear, as it always has been since the Civil Rights Cases, supra, that "Individual invasion of individual rights is not the subject matter of the amendment," 109 U.S. at 109 U. S. 11, and that private conduct abridging individual rights does no violence to the Equal Protection Clause unless, to some significant extent, the State, in any of its manifestations, has been found to have become involved in it. Because the virtue of the right to equal protection of the laws could lie only in the breadth of its application, its constitutional assurance was reserved in terms whose imprecision was necessary if the right were to be enjoyed in the variety of individual-state relationships which the Amendment was designed to embrace. For the same reason, to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an "impossible task" which "This Court has never attempted." Kotch v. Board of River Port Pilot Comm'rs, 330 U. S. 552, 330 U. S. 556. Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.The trial court's disposal of the issues on summary judgment has resulted in a rather incomplete record, but the opinion of the Supreme Court, as well as that of the Chancellor, presents the facts in sufficient detail for us to determine the degree of state participation in Eagle's refusal to serve petitioner. In this connection, the Delaware Supreme Court seems to have placed controlling emphasis on its conclusion, as to the accuracy of which there is doubt, that only some 15% of the total cost of the facility was "advanced" from public funds; that Page 365 U. S. 723 the cost of the entire facility was allocated three-fifths to the space for commercial leasing and two-fifths to parking space; that anticipated revenue from parking was only some 30.5% of the total income, the balance of which was expected to be earned by the leasing; that the Authority had no original intent to place a restaurant in the building, it being only a happenstance resulting from the bidding; that Eagle expended considerable moneys on furnishings; that the restaurant's main and marked public entrance is on Ninth Street, without any public entrance direct from the parking area; and that"the only connection Eagle has with the public facility . . . is the furnishing of the sum of $28,700 annually in the form of rent which is used by the Authority to defray a portion of the operating expense of an otherwise unprofitable enterprise."157 A.2d 894, 901. While these factual considerations are indeed validly accountable aspects of the enterprise upon which the State has embarked, we cannot say that they lead inescapably to the conclusion that state action is not present. Their persuasiveness is diminished when evaluated in the context of other factors which must be acknowledged.The land and building were publicly owned. As an entity, the building was dedicated to "public uses" in performance of the Authority's "essential governmental functions." 22 Del.Code, §§ 501, 514. The costs of land acquisition, construction, and maintenance are defrayed entirely from donations by the City of Wilmington, from loans and revenue bonds, and from the proceeds of rentals and parking services out of which the loans and bonds were payable. Assuming that the distinction would be significant, cf. Derrington v. Plummer, 240 F.2d 922, 925, the commercially leased areas were not surplus state property, but constituted a physically and financially integral and, indeed, indispensable part of the State's Page 365 U. S. 724 plan to operate its project as a self-sustaining unit. Upkeep and maintenance of the building, including necessary repairs, were responsibilities of the Authority, and were payable out of public funds. It cannot be doubted that the peculiar relationship of the restaurant to the parking facility in which it is located confers on each an incidental variety of mutual benefits. Guests of the restaurant are afforded a convenient place to park their automobiles, even if they cannot enter the restaurant directly from the parking area. Similarly, its convenience for diners may well provide additional demand for the Authority's parking facilities. Should any improvements effected in the leasehold by Eagle become part of the realty, there is no possibility of increased taxes' being passed on to it, since the fee is held by a tax-exempt government agency. Neither can it be ignored, especially in view of Eagle's affirmative allegation that for it to serve Negroes would injure its business, that profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency.Addition of all these activities, obligations and responsibilities of the Authority, the benefits mutually conferred, together with the obvious fact that the restaurant is operated as an integral part of a public building devoted to a public parking service, indicates that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment to condemn. It is irony amounting to grave injustice that, in one part of a single building, erected and maintained with public funds by an agency of the State to serve a public purpose, all persons have equal rights, while in another portion, also serving the public, a Negro is a second-class citizen, offensive because of his race, without rights and unentitled to service, but at the same time fully enjoys equal access to nearby restaurants in wholly Page 365 U. S. 725 privately owned buildings. As the Chancellor pointed out, in its lease with Eagle, the Authority could have affirmatively required Eagle to discharge the responsibilities under the Fourteenth Amendment imposed upon the private enterprise as a consequence of state participation. But no State may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be. It is of no consolation to an individual denied the equal protection of the laws that it was done in good faith. Certainly, the conclusions drawn in similar cases by the various Courts of Appeals do not depend upon such a distinction. [Footnote 2] By its inaction, the Authority, and through it the State, has not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination. The State has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so "purely private" as to fall without the scope of the Fourteenth Amendment.Because readily applicable formulae may not be fashioned, the conclusions drawn from the facts and circumstances of this record are by no means declared as universal truths on the basis of which every state leasing agreement is to be tested. Owing to the very "largeness" Page 365 U. S. 726 of government, a multitude of relationships might appear to some to fall within the Amendment's embrace, but that, it must be remembered, can be determined only in the framework of the peculiar facts or circumstances present. Therefore, respondents' prophecy of nigh universal application of a constitutional precept so peculiarly dependent for its invocation upon appropriate facts fails to take into account "Differences in circumstances [which] beget appropriate differences in law," Whitney v. State Tax Comm'n, 309 U. S. 530, 309 U. S. 542. Specifically defining the limits of our inquiry, what we hold today is that, when a State leases public property in the manner and for the purpose shown to have been the case here, the proscriptions of the Fourteenth Amendment must be complied with by the lessee as certainly as though they were binding covenants written into the agreement itself.The judgment of the Supreme Court of Delaware is reversed, and the cause remanded for further proceedings consistent with this opinion.Reversed

U.S. Supreme CourtBurton v. Wilmington Parking Authority, 365 U.S. 715 (1961)Burton v. Wilmington Parking AuthorityNo. 164Argued February 21, 23, 1961Decided April 17, 1961365 U.S. 715SyllabusA restaurant located in a publicly owned and operated automobile parking building refused to serve appellant food or drink solely because he was a Negro. The building had been built with public funds for public purposes, and it was owned and operated by an agency of the State of Delaware, from which the private operator of the restaurant leased its premises. Claiming that refusal to serve him abridged his rights under the Equal Protection Clause of the Fourteenth Amendment, appellant sued in a state court for declaratory and injunctive relief against the restaurant and the state agency. The Supreme Court of Delaware held that he was not entitled to relief, on the ground that the restaurant's action was not state action within the meaning of the Fourteenth Amendment and that the restaurant was not required by a Delaware statute to serve all persons entering its place of business. An appeal was taken to this Court on the ground that the state statute had been construed unconstitutionally.Held:1. The appeal is dismissed, since the judgment did not depend for its ultimate support upon a determination of the constitutional validity of the state statute; but, treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari is granted, since the case presents an important constitutional question under the Fourteenth Amendment. Pp. 365 U. S. 717, 365 U. S. 721.2. In view of all the circumstances of this case, including the facts that the restaurant was physically and financially an integral part of a public building, built and maintained with public funds, devoted to a public parking service, and owned and operated by an agency of the State for public purposes, the State was a joint participant in the operation of the restaurant, and its refusal to serve appellant violated the Equal Protection Clause of the Fourteenth Amendment. Pp. 365 U. S. 721-726.3. When a State leases public property in the manner and for the purpose shown to have been the case here, the proscriptions of Page 365 U. S. 716 the Fourteenth Amendment must be complied with by the lessee as certainly as though they were binding covenants written into the agreement itself. P. 365 U. S. 726.___ Del. ___,157 A.2d 894, reversed.

1959_156

MR. JUSTICE HARLAN delivered the opinion of the Court.Certiorari was granted in this case, 361 U.S. 807, to review the decision of the Court of Appeals holding that a District Court sitting in admiralty lacked power to order the taking of oral depositions for the purpose of discovery only, and that Rule 32 of the Admiralty Rules of the District Page 363 U. S. 642 Court for the Northern District of Illinois, purporting to authorize the taking of such depositions, [Footnote 1] was invalid for want of authority in the District Court to promulgate it.The issue arose in the following manner: the respondent filed a petition in admiralty seeking exoneration from or limitation of liability for the death by drowning of two seamen employed on a yacht owned by him. The representatives of the deceased seamen, having appeared as claimants, applied to the District Court for an order granting leave to take the depositions of several named persons, including respondent, for the purpose of discovery only. Respondent opposed the motion on the ground that the court had no power to order the taking of depositions in any case not meeting the conditions of R.S. §§ 863-865, the de bene esse statute. [Footnote 2] After argument, petitioner Page 363 U. S. 643 Miner, D.J., granted the claimants' motion, pursuant to local Admiralty Rule 32. Respondent then sought a writ of mandamus or prohibition requiring the vacation of the order of the District Court, and prohibiting Judge Miner, or any other district judge to whom the case might be assigned, from further proceeding under it. A rule to show cause was issued by the Court of Appeals and, after a hearing, the application for extraordinary relief, whose availability in the particular circumstances involved is not challenged before us, was granted. 265 F.2d 312. For reasons presently to be stated, we have concluded that the Court of Appeals' conclusion was correct, and we affirm its judgment.Counsel for the claimants, representing the petitioners here, undertake to support the discovery deposition order on the grounds that: (1) a court of admiralty has inherent power, not dependent on any statute or rule, to order the taking of depositions for the purpose of discovery; (2) Rule 32C of this Court's General Admiralty Rules impliedly empowers a district judge to order the taking of such depositions; (3) Rule 32 of the District Court's Admiralty Rules is a valid exercise of its power to regulate local practice, conferred by Rule 44 of the General Admiralty Rules. We consider each contention in turn.The reliance on an asserted inherent power is based almost exclusively on the decision of the Court of Appeals for the Third Circuit in Dowling v. Isthmian S.S. Corp., 184 F.2d 758. In an exhaustive discussion, Judge Fee, for that court, expressed the view that the traditionally flexible and adaptable admiralty practice empowers a court to order a party to submit to pretrial oral examination. Whether or not the decision was intended to embrace examinations solely for discovery purposes is not entirely clear. Compare Standard Steamship Co. v. United States, 126 F. Supp. 583, with Darling's Estate v. Atlantic Contracting Corp., 150 F. Supp. 578, 579; 1950 Page 363 U. S. 644 Annual Survey of American Law 523. None of the historical data adduced in the Dowling case seems to go beyond the area of testimony for use at the trial. The opinion states no more than that history discloses no overt rejection of the power to order depositions taken for discovery purposes. 184 F.2d at 771, note 36. There is no affirmative indication of the exercise of such a power, if any was thought to exist, and the 1940 edition of Benedict on Admiralty unequivocally asserts that "[a]n admiralty deposition may only be taken for the purpose of securing evidence; it may not be taken for the purpose of discovery." 3 Benedict, Admiralty (Knauth ed.), 34. This statement by a leading work in the field hardly bespeaks the existence of traditional inherent power, and we find none. Cf. 44 U. S. Curtis, 3 How. 236, 44 U. S. 245.Neither can we find in this Court's Admiralty Rules warrant for the entry by a district judge of an order of the character granted below. The deposition practice authorized by the Civil Rules does not, of its own force, provide the authority sought, since those rules are expressly declared inapplicable to proceedings in admiralty. Civil Rule 81(a)(1). Certain of the Civil Rules were adopted by this Court as part of the Admiralty Rules in the 1939 amendments, 307 U.S. 653. Thus, Civil Rules 33 through 37 were made part of the Admiralty Rules as Rules 31, 32, 32A, 32B, and 32C, respectively. [Footnote 3] However, the remainder of the Civil Rules in Part V, dealing with "Depositions and Discovery," including Rule 26, the basic authority Page 363 U. S. 645 for discovery deposition practice (see note 1 ante), was not adopted. We cannot, of course, regard this significant omission as inadvertent, cf. 76 A.B.A.Ann.Rep. 565-566; rather, it goes far to establish the lack of any provision for discovery by deposition in the General Admiralty Rules.However, petitioners contend, and some courts have agreed, that the existence of such a power is to be inferred from Rule 32C, the counterpart of Civil Rule 37, entitled, "Refusal to make discovery: consequences." That rule details the procedures which are to be followed if "a party or other deponent refuses to answer any question propounded upon oral examination. . . ." It has been held that the inclusion of this rule must be taken as the expression of an assumption by the Court that the discovery deposition practice existed or was to be followed in admiralty, for the reason that"[i]t is inconceivable that the Supreme Court, by means of the elaborate and detailed terms of Rule 32C, would have given a suitor in admiralty a method of enforcing a right that did not exist."Brown v. Isthmian S.S. Corp., 79 F. Supp. 701, 702 (D.C.E.D.Pa.). In accord with the Brown decision are Bunge Corp. v. The Ourania Gournaris, 1949 A.M.C. 744 (D.C.S.D.N.Y.); Galperin v. United States, 1949 A.M.C. 1907 (D.C.E.D.N.Y.); The Ballantrae, 1949 A.M.C. 1999 (D.C.N.J.).The dilemma thus suggested -- either that we must regard Civil Rule 26 as inadvertently omitted from the Admiralty Rules [Footnote 4] or that we should consider that part of Civil Rule 37 which refers to oral examinations as inadvertently included -- is more seeming than real. The reference Page 363 U. S. 646 to "discovery" in the title to Rule 32C can well have been simply to the modes of discovery authorized by those of the Civil Rules which were carried into the Admiralty Rules in the 1939 amendments, see note 3 ante, and we think it should so be taken. As to the reference to "oral examination," we are in agreement with the explanation offered by Judge Rifkind in Mulligan v. United States, 87 F. Supp. 79, 81, that it comprehends only those forms of oral examinations traditionally recognized in admiralty, primarily the deposition de bene esse (see note 2 ante). [Footnote 5] By this construction, both actions of this Court -- the adoption of Civil Rule 37 and the omission of Civil Rule 26 -- are given harmonious effect.Petitioners' third contention is that, although admiralty courts were not given authority by the General Admiralty Rules to order the taking of depositions for discovery purposes, the District Court in the present case acted pursuant to its own local Admiralty Rule 32 (see note 1 ante) granting such authority, and that such rule was a valid exercise of power conferred on the District Court by Rule 44 of the General Rules. See Ludena v. The Santa Luisa, 95 F. Supp. 790 (D.C.S.D.N.Y.); Application of A. Pellegrino & Son, 11 F.R.D. 209 (D.C.S.D.N.Y.); cf. Republic of France v. Belships Co., Ltd., 91 F.Supp. Page 363 U. S. 647 912; Prudential Steamship Corp. v. Curtis Bay Towing Co., 20 F.R.D. 356 (D.C.Md.). Rule 44, entitled "Right of trial courts to make rules of practice," provides:"In suits in admiralty in all cases not provided for by these rules or by statute, the District Courts are to regulate their practice in such a manner as they deem most expedient for the due administration of justice, provided the same are not inconsistent with these rules."(Emphasis added.) We may assume, without deciding, that, the proviso apart, the affirmative grant of authority contained in Rule 44 is sufficiently broad and unqualified, in light of the traditional liberality and flexibility of admiralty practice, to embrace the "practice" of taking depositions for discovery purposes. Cf. Galveston Dry Dock & Const. Co. v. Standard Dredging Co., 40 F.2d 442. However, we feel constrained to hold that this particular practice is not consistent with the present General Admiralty Rules, and therefore that, in this respect, local Rule 32 falls within the proviso. [Footnote 6] Page 363 U. S. 648As we have noted, the determination of this Court in 1939 to promulgate some but not all of the Civil Rules relating to discovery must be taken as an advertent declination of the opportunity to institute the discovery deposition procedure of Civil Rule 26(a) throughout courts of admiralty. It may be, see 76 A.B.A.Ann.Rep. 565-566, [Footnote 7] that one reason for this failure was the belief that this Court could not take over into Admiralty in its entirety Civil Rule 26. The Enabling Act did not then, R.S. § 913, although it does now, 28 U.S.C. § 2073, authorize the Court to supersede statutes, and the limitations of the de bene esse statute would therefore have overridden Civil Rule 26(d) to the extent the statute was more restrictive. Nevertheless it does seem clear that the part of Civil Rule 26 with which we are now concerned could have been promulgated in admiralty, cf. note 6 ante. But, for whatever reason, no action was taken.It is, of course, true that the failure to adopt Civil Rule 26 implies no more than that this Court did not wish to impose the practice on the District Courts, and does not necessarily bespeak an intention to foreclose each District Court from exercising a "local option" under Rule 44. We do not deny the logic of this contention; neither do we hold that whenever the General Admiralty Rules deal with part, but not all, of a subject, those practices left unprovided for by the General Rules may not in any circumstances be dealt with by the District Courts under General Rule 44. Unlike many state practice statutes, this Court's rules of admiralty practice for the District Courts are not comprehensive codes regulating every detail of practice, and we would be slow to hold that the interstices may not be the subject of appropriate local regulation. For example, rules fixing the time for doing Page 363 U. S. 649 certain acts are of the essence of orderly procedure. So long as the time set be not unreasonable, it is less important what the limit be than that there be a rule whereby some timetable may be known to the profession. Thus, the failure of the General Admiralty Rules to prescribe a time within which motions for rehearing may be filed should not bar a District Court from fixing such a time limit. See Papanikolaou v. Atlantic Freighters, 232 F.2d 663, 665. Similarly, the General Admiralty Rules provide no answer to the question whether one sued for a certain sum, who contests his liability for but a portion of that sum, may be required to suffer a judgment for the remainder prior to trial on the contested portion, and there is no compelling reason why that lack should be held to prevent a District Court from supplying an answer by local rule. See Galveston Dry Dock & Const. Co. v. Standard Dredging Co., supra.We deal here only with the procedure before us, and our decision is based on its particular nature and history. Discovery by deposition is at once more weighty and more complex a matter than either of the examples just discussed or others that might come to mind. Its introduction into federal procedure was one of the major achievements of the Civil Rules, and has been described by this Court as "one of the most significant innovations" of the rules. Hickman v. Taylor, 329 U. S. 495, 329 U. S. 500. Moreover, the choice of procedures adopted to govern various specific problems arising under the system was in some instances hardly less significant than the initial decision to have such a system. It should be obvious that we are not here dealing either with a bare choice between an affirmative or a negative answer to a narrow question or, even less, with the necessary choice of a rule to deal with a problem which must have an answer, but need not have any particular one. Rather, the matter is one which, Page 363 U. S. 650 though concededly "procedural," may be of as great importance to litigants as many a "substantive" doctrine, and which arises in a field of federal jurisdiction where nationwide uniformity has traditionally always been highly esteemed.The problem, then, is one which peculiarly calls for exacting observance of the statutory procedures surrounding the rulemaking powers of the Court, see 28 U.S.C. § 331 (advisory function of Judicial Conference), 28 U.S.C. § 2073 (prior report of proposed rule to Congress), designed to insure that basic procedural innovations shall be introduced only after mature consideration of informed opinion from all relevant quarters, with all the opportunities for comprehensive and integrated treatment which such consideration affords. Having already concluded that the discovery deposition procedure is not authorized by the General Admiralty Rules themselves, we should hesitate to construe General Rule 44 as permitting a change so basic as this to be effectuated through the local rulemaking power, especially when that course was never reported to Congress, [Footnote 8] as would now be required under 28 U.S.C. § 2073.We are strongly reinforced in our conclusion by the post-1939 history of the question of adoption of discovery deposition rules in the General Admiralty Rules. In the 1948 revision of the Judicial Code, this Court was given the power to supersede statutes, which it lacked in 1939. In 1951, a joint committee representing several leading bar associations proposed the adoption of a rule permitting the taking of the deposition of a party for discovery purposes. See 76 A.B.A.Ann.Rep. 181; Maritime Law Assn., Doc. No. 348 (Sept. 1951). No action was taken. Page 363 U. S. 651 In 1953, it was recommended that Rule 26(a) be made applicable to proceedings in admiralty, with two minor modifications; this would, of course, have permitted discovery by deposition of witnesses, as well as parties. Maritime Law Assn., Doc. No. 369 (Apr. 1953). Again no action was taken. We do not think this failure to enact the proposed amendments can be explained away by suggesting that the widespread local adoption of rules similar to the local rule now before us [Footnote 9] was thought to render amendment of the General Rules unnecessary, for local rules, by virtue of the inability of the District Courts to supersede statutes, cannot deal with the matter of the taking and use of depositions as an integrated whole. See Mercado v. United States, 184 F.2d 24.It hardly need be added that our decision here in no way implies any view as to the desirability or undesirability of having a discovery deposition procedure in admiralty cases. Those who advise the Court with respect to the exercise of its rulemaking powers -- more particularly, of course, the Judicial Conference of the United States (28 U.S.C. § 331) and the newly created Advisory Committee on the General Admiralty Rules, which it is to be hoped will give the matter their early attention -- are left wholly free to approach the question of amendment of the discovery provisions of the rules in the light of whatever considerations seem relevant to them, including, of course, the experience gained by the District Courts which have had rules similar to the Local Rule here challenged. Nor would anything we have said prevent those bodies from recommending that the matter of discovery depositions be left to local rulemaking. All we decide in the existing Page 363 U. S. 652 posture of affairs is that the matter of discovery depositions is not presently provided for in the General Admiralty Rules or encompassed within the local rulemaking power under General Rule 44.Affirmed

U.S. Supreme CourtMiner v. Atlass, 363 U.S. 641 (1960)Miner v. AtlassNo. 156Argued March 3, 1960Decided June 20, 1960363 U.S. 641SyllabusA Federal District Court sitting in admiralty has no power to order the taking of oral depositions for the purpose of discovery only, and Rule 32 of the Admiralty Rules of the District Court for the Northern District of Illinois, purporting to authorize the taking of such depositions, is invalid for want of authority in the District Court to promulgate it. Pp. 363 U. S. 641-652.(a) A court of admiralty has no inherent power, independent of any statute or rule, to order the taking of depositions for the purpose of discovery. Pp. 363 U. S. 643-644.(b) Rule 32C of this Court's General Admiralty Rules does not impliedly empower a district judge to order the taking of such depositions. Pp. 363 U. S. 644-646.(c) Rule 32 of the District Court's Admiralty Rules is not a valid exercise of its power to regulate local practice, conferred by Rule 44 of the General Admiralty Rules. Pp. 363 U. S. 646-652.265 F.2d 312 affirmed.

1963_264

MR. JUSTICE BLACK delivered the opinion of the Court.The question presented here is whether a state court can validly enjoin a person from prosecuting an action in personam in a district or appellate court of the United States which has jurisdiction both of the parties and of the subject matter.The City of Dallas, Texas, owns Love Field, a municipal airport. In 1961, 46 Dallas citizens who owned or had interests in property near the airport filed a class suit in a Texas court to restrain the City from building an additional runway and from issuing and selling municipal Page 377 U. S. 409 bonds for that purpose. The complaint alleged many damages that would occur to the plaintiffs if the runway should be built, and charged that issuance of the bonds would be illegal for many reasons. The case was tried, summary judgment was given for the City, the Texas Court of Civil Appeals affirmed, [Footnote 1] the Supreme Court of Texas denied review, and we denied certiorari. [Footnote 2] Later, 120 Dallas citizens, including 27 of the plaintiffs in the earlier action, filed another action in the United States District Court for the Northern District of Texas seeking similar relief. A number of new defendants were named in addition to the City of Dallas, all the defendants being charged with taking part in plans to construct the runway and to issue and sell bonds in violation of state and federal laws. The complaint sought an injunction against construction of the runway, issuance of bonds, payment on bonds already issued, and circulation of false information about the bond issue, as well as a declaration that all the bonds were illegal and void. None of the bonds would be approved, and therefore, under Texas law, none could be issued, so long as there was pending litigation challenging their validity. [Footnote 3] The City filed a motion to dismiss and an answer to the complaint in the federal court. But, at the same time, the City applied to the Texas Court of Civil Appeals for a writ of prohibition to bar all the plaintiffs in the case in the United States District Court from prosecuting their case there. The Texas Court of Civil Appeals denied relief, holding that it was without power to enjoin litigants from prosecuting an action in a federal court, and that the defense of res judicata on which the City relied could be raised and adjudicated in the United States District Page 377 U. S. 410 Court. [Footnote 4] On petition for mandamus, the Supreme Court of Texas took a different view, however, held it the duty of the Court of Civil Appeals to prohibit the litigants from further prosecuting the United States District Court case, and stated that a writ of mandamus would issue should the Court of Civil Appeals fail to perform this duty. [Footnote 5] The Court of Civil Appeals promptly issued a writ prohibiting all the plaintiffs in the United States District Court case from any further prosecution of that case, and enjoined them"individually and as a class . . . from filing or instituting . . . any further litigation, law suits or actions in any court, the purpose of which is to contest the validity of the airport revenue bonds . . . or from in any manner interfering with . . . the proposed bonds. . . ."The United States District Court in an unreported opinion dismissed the case pending there. Counsel Donovan, who is one of the petitioners here, excepted to the dismissal, and then filed an appeal from that dismissal in the United States Court of Appeals for the Fifth Circuit. The Texas Court of Civil Appeals thereupon cited Donovan and the other United States District Court claimants for contempt, and convicted 87 of them on a finding that they had violated its "valid order." [Footnote 6] Donovan was sentenced to serve 20 days in jail, and the other 86 were fined $200 each, an aggregate of $17,200. These penalties were imposed upon each contemner for having either (1) joined as a party plaintiff in the United States District Court case; (2) failed to request and contested the dismissal of that case; (3) taken exceptions to the dismissal preparatory to appealing to the Court of Appeals; or (4) filed a separate action in the Federal District Court seeking to enjoin the Supreme Court of Texas from interfering with Page 377 U. S. 411 the original federal court suit. After the fines had been paid and he had served his jail sentence, [Footnote 7] counsel Donovan appeared in the District Court on behalf of himself and all those who had been fined, and moved to dismiss the appeal to the United States Court of Appeals. His motion stated that it was made under duress, and that, unless the motion was made,"the Attorney for Defendant City of Dallas and the Chief Judge of the Court of Civil Appeals have threatened these Appellants and their Attorney with further prosecution for contempt, resulting in additional fines and imprisonment."The United States District Court then dismissed the appeal. [Footnote 8]We declined to grant certiorari to review the United States District Court's dismissal of the case before it or its dismissal of the appeal brought on by the state court's coercive contempt judgment, but we did grant certiorari to review the State Supreme Court's judgment directing the Civil Court of Appeals to enjoin petitioners from prosecuting their action in the federal courts, and also granted certiorari to review the Civil Court of Appeals' judgment of conviction for contempt. 375 U.S. 878. We think the Texas Court of Civil Appeals was right in its first holding that it was without power to enjoin these litigants from prosecuting their federal court action, and we therefore reverse the State Supreme Court's judgment upsetting that of the Court of Appeals. We vacate the later contempt judgment of the Court of Civil Appeals, Page 377 U. S. 412 which rested on the mistaken belief that the writ prohibiting litigation by the federal plaintiffs was "valid."Early in the history of our country, a general rule was established that state and federal courts would not interfere with or try to restrain each other's proceedings. [Footnote 9] That rule has continued substantially unchanged to this time. An exception has been made in cases where a court has custody of property, that is, proceedings in rem or quasi in rem. In such cases, this Court has said that the state or federal court having custody of such property has exclusive jurisdiction to proceed. Princess Lida v. Thompson, 305 U. S. 456, 305 U. S. 465-468. In Princess Lida, this Court said,"where the judgment sought is strictly in personam, both the state court and the federal court, having concurrent jurisdiction, may proceed with the litigation, at least until judgment is obtained in one of them which may be set up as res judicata in the other."Id. at 305 U. S. 466. See also Kline v. Burke Construction Co., 260 U. S. 226. It may be that a full hearing in an appropriate court would justify a finding that the state court judgment in favor of Dallas in the first suit barred the issues raised in the second suit, a question as to which we express no opinion. But plaintiffs in the second suit chose to file that case in the federal court. They had a right to do this, a right which is theirs by reason of congressional enactments passed pursuant to congressional policy. And whether or not a plea of res judicata in the second suit would be good is a question for the federal court to decide. While Congress has seen fit to authorize courts of the United States to restrain state court proceedings in some special circumstances, [Footnote 10] it has in no way relaxed the old and well established judicially declared Page 377 U. S. 413 rule [Footnote 11] that state courts are completely without power to restrain federal court proceedings in in personam actions like the one here. And it does not matter that the prohibition here was addressed to the parties, rather than to the federal court itself. For the heart of the rule as declared by this Court is that:". . . where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court. . . . The fact, therefore, that an injunction issues only to the parties before the court, and not to the court, is no evasion of the difficulties that are the necessary result of an attempt to exercise that power over a party who is a litigant in another and independent forum. [Footnote 12]"Petitioners, being properly in the federal court, had a right granted by Congress to have the court decide the issues they presented, and to appeal to the Court of Appeals from the District Court's dismissal. They have been punished both for prosecuting their federal court case and for appealing it. They dismissed their appeal because of threats to punish them more if they did not do so. The legal effect of such a coerced dismissal on their appeal is not now before us, but the propriety of a state court's punishment of a federal court litigant for pursuing his right to federal court remedies is. That right was granted by Congress, and cannot be taken away by the State. The Texas courts were without power to Page 377 U. S. 414 take away this federal right by contempt proceedings or otherwise. [Footnote 13]It is argued here, however, that the Court of Civil Appeals' judgment of contempt should nevertheless be upheld on the premise that it was petitioners' duty to obey the restraining order whether that order was valid or invalid. The Court of Civil Appeals did not consider or pass upon this question, but acted on the assumption that petitioners were guilty of "willful disobedience of a valid order." 368 S.W.2d at 244. (Emphasis supplied.) Since we hold the order restraining petitioners from prosecuting their case in the federal courts was not valid, but was invalid, petitioners have been punished for disobeying an invalid order. Whether the Texas court would have punished petitioners for contempt had it known that the restraining order petitioners violated was invalid we do not know. However, since that question was neither considered nor decided by the Texas court, we leave it for consideration by that court on remand. We express no opinion on that question at this time.The judgment of the Texas Supreme Court is reversed, the judgment of the Texas Court of Civil Appeals is vacated, and the case is remanded to the Court of Civil Appeals for further proceedings not inconsistent with this opinion.It is so ordered

U.S. Supreme CourtDonovan v. City of Dallas, 377 U.S. 408 (1964)Donovan v. City of DallasNo. 264Argued April 22, 1964Decided June 8, 1964377 U.S. 408SyllabusA state court cannot enjoin plaintiffs from prosecuting or appealing an in personam action in a federal court which has jurisdiction of the parties and the subject matter, nor can this federal right be divested by state contempt or other proceedings, even though a judgment of a state court in the same controversy has already been rendered against certain petitioners. The case is remanded to the state trial court to consider whether it would have punished petitioners for contempt had it known that the restraining order petitioners violated was invalid. Pp. 377 U. S. 408-414.365 S.W.2d 919 reversed.368 S.W.2d 240 (Tex.Civ.App.), judgment vacated and cause remanded.

1995_94-1664

(a) Victim misconduct is an encouraged basis for departure under USSG § 5K2.1O, and the District Court did not abuse its discretion in basing a departure on it. The court's analysis of this departure factor showed a correct understanding in applying § 2H1.4, the Guideline applicable to 18 U. S. C. § 242, both as a mechanical matter and in interpreting its heartland. As the court recognized, § 2H1.4 incorporates the Guideline for the offense underlying the § 242 violation, here § 2A2.2 for aggravated assault, and thus creates a Guideline range and a heartland for aggravated assault committed under color of law. A downward departure under § 5K2.1O was justified because the punishment prescribed by § 2A2.2 contemplates unprovoked assaults, not cases like this where what begins as legitimate force in response to provocation becomes excessive. The Court of Appeals misinterpreted the District Court to have found that the victim had been the but-for cause of the crime, but not that he had provoked it; it also misinterpreted the heartland of the applicable Guideline range by concentrating on whether the victim's misconduct made this an unusual case of excessive force. pp. 101-105.(b) This Court rejects the Government's contention that some of the four considerations underlying the District Court's second downward departure are impermissible departure factors under all circumstances. For a court to conclude that a factor must never be considered would be to usurp the policymaking authority that Congress vested in the Commission, and 18 U. S. C. § 3553(a)(2) does not compel such a result. A court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, that factor's consideration. If the answer is no-as it will be most of the time-the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the applicable Guideline's heartland. Pp. 106-109.(c) The District Court abused its discretion in relying on petitioners' collateral employment consequences as support for its second departure. Because it is to be expected that a public official convicted of using his governmental authority to violate a person's rights will lose his or her job and be barred from similar employment in the future, it must be concluded that the Commission adequately considered these consequences in formulating 1992 USSG § 2H1.4. Thus, the career loss factor, as it exists in this suit, cannot take the suit out of § 2H1.4's heartland. Pp. 109-111.(d) The low likelihood of petitioners' recidivism was also an inappropriate ground for departure, since the Commission specifically ad-84Syllabusdressed this factor in formulating the sentencing range for petitioners' criminal history category. See §4A1.3. P.111.(e) However, the District Court did not abuse its discretion in relying upon susceptibility to abuse in prison and the burdens of successive prosecutions. The District Court's finding that the case is unusual due to petitioners' exceptional susceptibility to abuse in prison is just the sort of determination that must be accorded deference on appeal. Moreover, although consideration of petitioners' successive prosecutions could be incongruous with the dual responsibilities of citizenship in our federal system, this Court cannot conclude the District Court abused its discretion by considering that factor. Pp. 111-112.(f) Where a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless the reviewing court determines that the district court would have imposed the same sentence absent reliance on the invalid factors. Williams, supra, at 203. Because the District Court here stated that none of four factors standing alone would justify its second departure, it is not evident that the court would have imposed the same sentence had it relied only on susceptibility to abuse and the hardship of successive prosecutions. The Court of Appeals should therefore remand the action to the District Court. Pp. 113-114.34 F.3d 1416, affirmed in part, reversed in part, and remanded.KENNEDY, J., delivered the opinion of the Court, which was unanimous except insofar as STEVENS, J., did not join Part IV-B-1, and SOUTER, GINSBURG, and BREYER, JJ., did not join Part IV-B-3. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 114. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined, post, p. 114. BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined, post, p. 118.Theodore B. Olson argued the cause for petitioner in No. 94-1664. With him on the briefs were Theodore J. Boutrous, Jr., John K. Bush, Richard J. Leighton, Joel Levine, and Ira M. Salzman. William J. Kopeny argued the cause and filed briefs for petitioner in No. 94-8842.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 Patrick, Acting Assistant Attorney General Keeney, Irving85L. Gornstein, Jessica Dunsay Silver, Linda F. Thome, and Vicki Marani. tJUSTICE KENNEDY delivered the opinion of the Court. The United States Sentencing Commission Guidelines establish ranges of criminal sentences for federal offenses and offenders. A district court must impose a sentence within the applicable Guideline range, if it finds the case to be a typical one. See 18 U. S. C. § 3553(a). District courts may depart from the Guideline range in certain circumstances, however, see ibid., and here the District Court departed downward eight levels. The Court of Appeals for the Ninth Circuit rejected the District Court's departure rulings, and, over the published objection of nine of its judges, declined to rehear the case en banco In this suit we explore the appropriate standards of appellate review of a district court's decision to depart from the Guidelines.I AThe petitioners' guilt has been established, and we are concerned here only with the sentencing determinations made by the District Court and Court of Appeals. A sentencing court's departure decisions are based on the facts of the case, however, so we must set forth the details of the crime at some length.On the evening of March 2, 1991, Rodney King and two of his friends sat in King's wife's car in Altadena, California, a city in Los Angeles County, and drank malt liquor for a num-tBriefs of amici curiae urging reversal were filed for the Law Enforcement Legal Defense Fund by Richard K. Willard and David Henderson Martin in No. 94-1664; for the National Association of Criminal Defense Lawyers by Lawrence S. Goldman in No. 94-1664; and for the National Association of Police Organizations, Inc., by William J. Johnson and Byron L. Warnken in both cases.86ber of hours. Then, with King driving, they left Altadena via a major freeway. King was intoxicated.California Highway Patrol officers observed King's car traveling at a speed they estimated to be in excess of 100 m.p.h. The officers followed King with red lights and sirens activated and ordered him by loudspeaker to pull over, but he continued to drive. The Highway Patrol officers called on the radio for help. Units of the Los Angeles Police Department joined in the pursuit, one of them manned by petitioner Laurence Powell and his trainee, Timothy Wind.King left the freeway, and after a chase of about eight miles, stopped at an entrance to a recreation area. The officers ordered King and his two passengers to exit the car and to assume a felony prone position-that is, to lie on their stomachs with legs spread and arms behind their backs. King's two friends complied. King, too, got out of the car but did not lie down. Petitioner Stacey Koon arrived, at once followed by Ted Briseno and Roland Solano. All were officers of the Los Angeles Police Department, and as sergeant, Koon took charge. The officers again ordered King to assume the felony prone position. King got on his hands and knees but did not lie down. Officers Powell, Wind, Briseno and Solano tried to force King down, but King resisted and became combative, so the officers retreated. Koon then fired taser darts (designed to stun a combative suspect) into King.The events that occurred next were captured on videotape by a bystander. As the videotape begins, it shows that King rose from the ground and charged toward Officer Powell. Powell took a step and used his baton to strike King on the side of his head. King fell to the ground. From the 18th to the 30th second on the videotape, King attempted to rise, but Powell and Wind each struck him with their batons to prevent him from doing so. From the 35th to the 51st second, Powell administered repeated blows to King's lower extremities; one of the blows fractured King's leg. At the 55th87second, Powell struck King on the chest, and King rolled over and lay prone. At that point, the officers stepped back and observed King for about 10 seconds. Powell began to reach for his handcuffs. (At the sentencing phase, the District Court found that Powell no longer perceived King to be a threat at this point.)At one-minute-five-seconds (1:05) on the videotape, Briseno, in the District Court's words, "stomped" on King's upper back or neck. King's body writhed in response. At 1:07, Powell and Wind again began to strike King with a series of baton blows, and Wind kicked him in the upper thoracic or cervical area six times until 1:26. At about 1:29, King put his hands behind his back and was handcuffed. Where the baton blows fell and the intentions of King and the officers at various points were contested at trial, but, as noted, petitioners' guilt has been established.Powell radioed for an ambulance. He sent two messages over a communications network to the other officers that said " 'ooops'" and "'I havent [sic] beaten anyone this bad in a long time.'" 34 F.3d 1416, 1425 (CA9 1994). Koon sent a message to the police station that said: "'V[nit] just had a big time use of force .... Tased and beat the suspect of CHP pursuit big time.'" Ibid.King was taken to a hospital where he was treated for a fractured leg, multiple facial fractures, and numerous bruises and contusions. Learning that King worked at Dodger Stadium, Powell said to King: "'We played a little ball tonight, didn't we Rodney? ... You know, we played a little ball, we played a little hardball tonight, we hit quite a few home runs .... Yes, we played a little ball and you lost and we won.'" Ibid.BKoon, Powell, Briseno, and Wind were tried in state court on charges of assault with a deadly weapon and excessive use of force by a police officer. The officers were acquitted of all charges, with the exception of one assault charge88against Powell that resulted in a hung jury. The verdicts touched off widespread rioting in Los Angeles. More than 40 people were killed in the riots, more than 2,000 were injured, and nearly $1 billion in property was destroyed. New Initiatives for a New Los Angeles: Final Report and Recommendations, Senate Special Task Force on a New Los Angeles, Dec. 9, 1992, pp. 10-11.On August 4, 1992, a federal grand jury indicted the four officers under 18 U. S. C. § 242, charging them with violating King's constitutional rights under color of law. Powell, Briseno, and Wind were charged with willful use of unreasonable force in arresting King. Koon was charged with willfully permitting the other officers to use unreasonable force during the arrest. After a trial in United States District Court for the Central District of California, the jury convicted Koon and Powell but acquitted Wind and Briseno.We now consider the District Court's sentencing determinations. Under the Sentencing Guidelines, a district court identifies the base offense level assigned to the crime in question, adjusts the level as the Guidelines instruct, and determines the defendant's criminal history category. United States Sentencing Commission, Guidelines Manual § lB1.1 (Nov. 1992) (1992 USSG). Coordinating the adjusted offense level and criminal history category yields the appropriate sentencing range. Ibid.The District Court sentenced petitioners pursuant to 1992 USSG § 2H1.4, which applies to violations of 18 U. S. C. § 242. Section 2H1.4 prescribes a base offense level which is the greater of the following: 10, or 6 plus the offense level applicable to any underlying offense. The District Court found the underlying offense was aggravated assault, which carries a base offense level of 15, 1992 USSG § 2A2.2(a), to which 6 was added for a total of 21.The court increased the offense level by four because petitioners had used dangerous weapons, § 2A2.2(b)(2)(B). The Government asked the court also to add four levels for89King's serious bodily injury pursuant to § 2A2.2(b)(3)(B). The court found, however, that King's serious injuries were sustained when the officers were using lawful force. (At trial, the Government contended that all the blows administered after King fell to the ground 30 seconds into the videotape violated § 242. The District Court found that many of those blows "may have been tortious," but that the criminal violations did not commence until 1:07 on the videotape, after Briseno stomped King. 833 F. Supp. 769, 778 (CD Cal. 1993).) The court did add two levels for bodily injury pursuant to § 2A2.2(b)(3)(A). The adjusted offense level totaled 27, and because neither petitioner had a criminal record, each fell within criminal history category 1. The sentencing range for an offense level of 27 and a criminal history category I was, under the 1992 Guidelines, 70-to-87 months' imprisonment. Rather than sentencing petitioners to a term within the Guideline range, however, the District Court departed downward eight levels. The departure determinations are the subject of this controversy.The court granted a five-level departure because "the victim's wrongful conduct contributed significantly to provoking the offense behavior," § 5K2.10, p. s. 833 F. Supp., at 787. The court also granted a three-level departure, based on a combination of four factors. First, as a result of the "widespread publicity and emotional outrage which have surrounded this case," petitioners were "particularly likely to be targets of abuse" in prison. Id., at 788. Second, petitioners would face job-termination proceedings, after which they would lose their positions as police officers, be disqualified from prospective employment in the field of law enforcement, and suffer the "anguish and disgrace these deprivations entail." Id., at 789. Third, petitioners had been "significantly burden[edJ" by having been subjected to successive state and federal prosecutions. Id., at 790. Fourth, petitioners were not "violent, dangerous, or likely to engage in future criminal conduct," so there was "no reason to90impose a sentence that reflects a need to protect the public from [them]." Ibid. The court concluded these factors justified a departure when taken together, although none would have been sufficient standing alone. Id., at 786.The departures yielded an offense level of 19 and a sentencing range of 30-to-37 months' imprisonment. The court sentenced each petitioner to 30 months' imprisonment. The petitioners appealed their convictions, and the Government appealed the sentences, arguing that the District Court erred in granting the downward departures and in failing to adjust the offense level upward for serious bodily injury. The Court of Appeals affirmed petitioners' convictions, and affirmed the District Court's refusal to adjust the offense level, but it reversed the District Court's departure determinations. Only the last ruling is before us.The Court of Appeals reviewed "de novo whether the district court had authority to depart." 34 F. 3d, at 1451. The court reversed the five-level departure for victim misconduct, reasoning that misbehavior by suspects is typical in cases involving excessive use of force by police and is thus comprehended by the applicable Guideline. Id., at 1460.As for the three-level departure, the court rejected each factor cited. Acknowledging that a departure for susceptibility to abuse in prison may be appropriate in some instances and that police officers as a group are susceptible to prison abuse, the court nevertheless said the factor did not justify departure because "reliance solely on hostility toward a group of which the defendant is a member provides an unlimited open-ended rationale for departing." Id., at 1455. The court further noted that, unlike cases in which a defendant is vulnerable to prison abuse due to physical characteristics over which he has no control, here the petitioners' vulnerability stemmed from public condemnation of their crimes. Id., at 1456.As for petitioners' collateral employment consequences, the court first held consideration of the factor by the trial91court inconsistent with the sentencing goals of 18 U. S. C. § 3553(a) because the factor did not "speak to the offender's character, the nature or seriousness of the offense, or some other legitimate sentencing concern." 34 F. 3d, at 1453. The court noted further that because the societal consequences of a criminal conviction are almost unlimited, reliance on them "would create a system of sentencing that would be boundless in the moral, social, and psychological examinations it required courts to make." Id., at 1454. Third, the court noted the ease of using the factor to justify departures based on a defendant's socioeconomic status, a consideration that, under 1992 USSG § 5H1.10, is never a permitted basis for departure. As a final point, the Court of Appeals said the factor was "troubling" because petitioners, as police officers, held positions of trust they had abused. Section 3B1.3 of the Guidelines increases, rather than decreases, punishment for those who abuse positions of trust. 34 F. 3d, at 1454.The Court of Appeals next found the successive state and federal prosecutions could not be a downward departure factor. It deemed the factor irrelevant to the sentencing goals of § 3553(a)(2) and contradictory to the Attorney General's determination that compelling federal interests warranted a second prosecution. Id., at 1457. The court rejected the last departure factor as well, ruling that low risk of recidivism was comprehended in the criminal history category and so should not be double counted. Id., at 1456-1457.We granted certiorari to determine the standard of review governing appeals from a district court's decision to depart from the sentencing ranges in the Guidelines. 515 U. S. 1190 (1995). The appellate court should not review the departure decision de novo, but instead should ask whether the sentencing court abused its discretion. Having invoked the wrong standard, the Court of Appeals erred further in rejecting certain of the downward departure factors relied upon by the District Judge.92IIThe Sentencing Reform Act of 1984, as amended, 18 U. S. C. § 3551 et seq., 28 U. S. C. §§ 991-998, made farreaching changes in federal sentencing. Before the Act, sentencing judges enjoyed broad discretion in determining whether and how long an offender should be incarcerated. Mistretta v. United States, 488 U. S. 361, 363 (1989). The discretion led to perceptions that "federal judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances." S. Rep. No. 98-225, p. 38 (1983). In response, Congress created the United States Sentencing Commission and charged it with developing a comprehensive set of sentencing guidelines, 28 U. S. C. § 994. The Commission promulgated the United States Sentencing Guidelines, which "specify an appropriate [sentencing range] for each class of convicted persons" based on various factors related to the offense and the offender. United States Sentencing Commission, Guidelines Manual ch. 1, pt. A, p. 1 (Nov. 1995) (1995 USSG). A district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one.The Act did not eliminate all of the district court's discretion, however. Acknowledging the wisdom, even the necessity, of sentencing procedures that take into account individual circumstances, see 28 U. S. C. § 991(b)(1)(B), Congress allows district courts to depart from the applicable Guideline range if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U. S. C. § 3553(b). To determine whether a circumstance was adequately taken into consideration by the Commission, Congress instructed courts to "consider only the sentencing guidelines, policy93statements, and official commentary of the Sentencing Commission." Ibid.Turning our attention, as instructed, to the Guidelines Manual, we learn that the Commission did not adequately take into account cases that are, for one reason or another, "unusual." 1995 USSG ch. 1, pt. A, intro. comment. 4(b). The Introduction to the Guidelines explains:"The Commission intends the sentencing courts to treat each guideline as carving out a 'heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted." Ibid.The Commission lists certain factors that never can be bases for departure (race, sex, national origin, creed, religion, socioeconomic status, 1995 USSG § 5H1.10; lack of guidance as a youth, § 5H1.12; drug or alcohol dependence, § 5H1.4; and economic hardship, § 5K2.12), but then states that with the exception of those listed factors, it "does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case." 1995 USSG ch. 1, pt. A, intro. comment. 4(b). The Commission gives two reasons for its approach:"First, it is difficult to prescribe a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. The Commission also recognizes that the initial set of guidelines need not do so. The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so and court decisions with references thereto, the Commission, over time, will94be able to refine the guidelines to specify more precisely when departures should and should not be permitted."Second, the Commission believes that despite the courts' legal freedom to depart from the guidelines, they will not do so very often. This is because the guidelines, offense by offense, seek to take account of those factors that the Commission's data indicate made a significant difference in pre-guidelines sentencing practice." Ibid.So the Act authorizes district courts to depart in cases that feature aggravating or mitigating circumstances of a kind or degree not adequately taken into consideration by the Commission. The Commission, in turn, says it has formulated each Guideline to apply to a heartland of typical cases. Atypical cases were not "adequately taken into consideration," and factors that may make a case atypical provide potential bases for departure. Potential departure factors "cannot, by their very nature, be comprehensively listed and analyzed in advance," 1995 USSG § 5K2.0, of course. Faced with this reality, the Commission chose to prohibit consideration of only a few factors, and not otherwise to limit, as a categorical matter, the considerations that might bear upon the decision to depart.Sentencing courts are not left adrift, however. The Commission provides considerable guidance as to the factors that are apt or not apt to make a case atypical, by listing certain factors as either encouraged or discouraged bases for departure. Encouraged factors are those "the Commission has not been able to take into account fully in formulating the guidelines." § 5K2.0. Victim provocation, a factor relied upon by the District Court in this suit, is an example of an encouraged downward departure factor, § 5K2.10, whereas disruption of a governmental function is an example of an encouraged upward departure factor, § 5K2.7. Even an encouraged factor is not always an appropriate basis for departure, for on some occasions the applicable Guideline will have95taken the encouraged factor into account. For instance, a departure for disruption of a governmental function "ordinarily would not be justified when the offense of conviction is an offense such as bribery or obstruction of justice; in such cases interference with a governmental function is inherent in the offense." Ibid. A court still may depart on the basis of such a factor but only if it "is present to a degree substantially in excess of that which ordinarily is involved in the offense." § 5K2.0.Discouraged factors, by contrast, are those "not ordinarily relevant to the determination of whether a sentence should be outside the applicable guideline range." 1995 USSG ch. 5, pt. H, intro. comment. Examples include the defendant's family ties and responsibilities, 1995 USSG § 5H1.6, his or her education and vocational skills, § 5H1.2, and his or her military, civic, charitable, or public service record, § 5H1.11. The Commission does not view discouraged factors "as necessarily inappropriate" bases for departure but says they should be relied upon only "in exceptional cases." 1995 USSG ch. 5, pt. H, intro. comment.The Commission's treatment of departure factors led then-Chief Judge Breyer to explain that a sentencing court considering a departure should ask the following questions:"1) What features of this case, potentially, take it outside the Guidelines' 'heartland' and make of it a special, or unusual, case?"2) Has the Commission forbidden departures based on those features?"3) If not, has the Commission encouraged departures based on those features?"4) If not, has the Commission discouraged departures based on those features?" United States v. Rivera, 994 F.2d 942, 949 (CA1 1993).We agree with this summary. If the special factor is a forbidden factor, the sentencing court cannot use it as a basis96for departure. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. Cf. ibid. If a factor is unmentioned in the Guidelines, the court must, after considering the "structure and theory of both relevant individual guidelines and the Guidelines taken as a whole," ibid., decide whether it is sufficient to take the case out of the Guideline's heartland. The court must bear in mind the Commission's expectation that departures based on grounds not mentioned in the Guidelines will be "highly infrequent." 1995 USSG ch. 1, pt. A, p. 6.Against this background, we consider the standard of review.IIIBefore the Guidelines system, a federal criminal sentence within statutory limits was, for all practical purposes, not reviewable on appeal. Dorszynski v. United States, 418 U. S. 424, 431 (1974) (reiterating "the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end"); United States v. Tucker, 404 U. S. 443, 447 (1972) (same). The Act altered this scheme in favor of a limited appellate jurisdiction to review federal sentences. 18 U. S. C. § 3742. Among other things, it allows a defendant to appeal an upward departure and the Government to appeal a downward one. §§ 3742(a), (b).That much is clear. Less clear is the standard of review on appeal. The Government advocates de novo review, saying that, like the Guidelines themselves, appellate review of sentencing, and in particular of departure decisions, was intended to reduce unjustified disparities in sentencing. In its97view, de novo review of departure decisions is necessary "to protect against unwarranted disparities arising from the differing sentencing approaches of individual district judges." Brief for United States 12.We agree that Congress was concerned about sentencing disparities, but we are just as convinced that Congress did not intend, by establishing limited appellate review, to vest in appellate courts wide-ranging authority over district court sentencing decisions. Indeed, the text of § 3742 manifests an intent that district courts retain much of their traditional sentencing discretion. Section 3742(e)(4), as enacted in 1984, provided "[t]he court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous." In 1988, Congress amended the statute to impose the additional requirement that courts of appeals "give due deference to the district court's application of the guidelines to the facts." Examining §3742 in Williams v. United States, 503 U. S.193 (1992), we stated as follows:"Although the Act established a limited appellate review of sentencing decisions, it did not alter a court of appeals' traditional deference to a district court's exercise of its sentencing discretion .... The development of the guideline sentencing regime has not changed our view that, except to the extent specifically directed by statute, 'it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.'" Id., at 205 (quoting Solem v. Helm, 463 U. S. 277, 290, n. 16 (1983)).See also S. Rep. No. 225, at 150 ("The sentencing provisions of the reported bill are designed to preserve the concept that the discretion of a sentencing judge has a proper place in sentencing and should not be displaced by the discretion of an appellate court").98That the district court retains much of its traditional discretion does not mean appellate review is an empty exercise. Congress directed courts of appeals to "give due deference to the district court's application of the guidelines to the facts." 18 U. S. C. § 3742(e)(4). The deference that is due depends on the nature of the question presented. The district court may be owed no deference, for instance, when the claim on appeal is that it made some sort of mathematical error in applying the Guidelines; under these circumstances, the appellate court will be in as good a position to consider the question as the district court was in the first instance.A district court's decision to depart from the Guidelines, by contrast, will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court. See Mistretta, 488 U. S., at 367 (noting that although the Act makes the Guidelines binding on sentencing courts, "it preserves for the judge the discretion to depart from the guideline applicable to a particular case"). Before a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline. To resolve this question, the district court must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing. Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do. In 1994, for example, 93.9% of Guidelines cases were not appealed. Letter from Pamela G. Montgomery, Deputy General Counsel, United States Sen-99tencing Commission (Mar. 29, 1996). "To ignore the district court's special competence-about the 'ordinariness' or 'unusualness' of a particular case-would risk depriving the Sentencing Commission of an important source of information, namely, the reactions of the trial judge to the factspecific circumstances of the case .... " Rivera, 994 F. 2d, at 951.Considerations like these persuaded us to adopt the abuse-of-discretion standard in Cooter & Gell v. Hartmarx Corp., 496 U. S. 384 (1990), which involved review of a District Court's imposition of Rule 11 sanctions, and in Pierce v. Underwood, 487 U. S. 552 (1988), which involved review of a District Court's determination under the Equal Access to Justice Act, 28 U. S. C. § 2412(d), that the position of the United States was "substantially justified," thereby precluding an award of attorney's fees against the Government. There, as here, we noted that deference was owed to the "'judicial actor ... better positioned than another to decide the issue in question.'" Pierce, supra, at 559-560 (quoting Miller v. Fenton, 474 U. S. 104, 114 (1985)); Cooter & Gell, supra, at 403. Furthermore, we adopted deferential review to afford "the district court the necessary flexibility to resolve questions involving 'multifarious, fleeting, special, narrow facts that utterly resist generalization.'" 496 U. S., at 404 (quoting Pierce, supra, at 561-562). Like the questions involved in those cases, a district court's departure decision involves "the consideration of unique factors that are 'little susceptible ... of useful generalization,'" 496 U. S., at 404, and as a consequence, de novo review is "unlikely to establish clear guidelines for lower courts," id., at 405.The Government seeks to avoid the factual nature of the departure inquiry by describing it at a higher level of generality linked closely to questions of law. The relevant question, however, is not, as the Government says, "whether a particular factor is within the 'heartland'" as a general proposition, Brief for United States 28, but whether the particu-100lar factor is within the heartland given all the facts of the case. For example, it does not advance the analysis much to determine that a victim's misconduct might justify a departure in some aggravated assault cases. What the district court must determine is whether the misconduct that occurred in the particular instance suffices to make the case atypical. The answer is apt to vary depending on, for instance, the severity of the misconduct, its timing, and the disruption it causes. These considerations are factual matters.This does not mean that district courts do not confront questions of law in deciding whether to depart. In the present suit, for example, the Government argues that the District Court relied on factors that may not be considered in any case. The Government is quite correct that whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court's resolution of the point. Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a mistake of law is beyond appellate correction. Cooter & Gell, supra, at 402. A district court by definition abuses its discretion when it makes an error of law. 496 U. S., at 405. That a departure decision, in an occasional case, may call for a legal determination does not mean, as a consequence, that parts of the review must be labeled de novo while other parts are labeled an abuse of discretion. See id., at 403 (court of appeals should "appl[y] a unitary abuse-of-discretion standard"). The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.IVThe principles we have explained require us to reverse the rulings of the Court of Appeals in significant part.101AThe District Court departed downward five levels because King's "wrongful conduct contributed significantly to provoking the offense behavior." 833 F. Supp., at 786. Victim misconduct was an encouraged basis for departure under the 1992 Guidelines and is so now. 1992 USSG § 5K2.10; 1995 USSG § 5K2.10.Most Guidelines prescribe punishment for a single discrete statutory offense or a few similar statutory offenses with rather predictable fact patterns. Petitioners were convicted of violating 18 U. S. C. § 242, however, a statute unusual for its application in so many varied circumstances. It prohibits, among other things, subjecting any person under color of law "to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States." A violation of § 242 can arise in a myriad of forms, and the Guideline applicable to the statute applies to any violation of § 242 regardless of the form it takes. 1992 USSG § 2H1.4. Section 2H1.4 takes account of the different kinds of conduct that might constitute a § 242 violation by instructing courts to use as a base offense level the greater of 10, or 6 plus the offense level applicable to any underlying offense. In this way, § 2H1.4 incorporates the base offense level of the underlying offense; as a consequence, the heartland of § 2H1.4 will vary depending on the defendant's conduct.Here, the underlying offense was aggravated assault.After adjusting the offense level for use of a dangerous weapon and bodily injury, see 1992 USSG § lB1.5(a) (a Guideline that incorporates another Guideline incorporates as well the other's specific offense characteristics), the District Court added six levels as required by § 2H1.4. Section 2H1.4 adds the six levels to account for the fact that the offense was committed "under actual or purported legal authority," commentary to § 2H1.4, and that "the harm involved both the underlying conduct and activity intended102to deprive a person of his civil rights," ibid. (incorporating introductory commentary to § 2H1.1).The District Court's analysis of this departure factor showed a correct understanding in applying § 2H1.4 as a mechanical matter and in interpreting its heartland. After summarizing King's misconduct-his driving while intoxicated, fleeing from the police, refusing to obey the officers' commands, attempting to escape from police custody, etc.the District Court concluded that a downward departure pursuant to § 5K2.10 was justified:"Mr. King's provocative behavior eventually subsided. The Court recognizes that by the time the defendants' conduct crossed the line to unlawfulness, Mr. King was no longer resisting arrest. He posed no objective threat, and the defendants had no reasonable perception of danger. Nevertheless, the incident would not have escalated to this point, indeed it would not have occurred at all, but for Mr. King's initial misconduct." 833 F. Supp., at 787.The court placed these facts within the context of the relevant Guideline range:"Messrs. Koon and Powell were convicted of conduct which began as a legal use of force against a resistant suspect and subsequently crossed the line to unlawfulness, all in a matter of seconds, during the course of a dynamic arrest situation. However, the convicted offenses fall under the same Guideline Sections that would apply to a jailor, correctional officer, police officer or other state agent who intentionally used a dangerous weapon to assault an inmate, without legitimate cause to initiate a use of force."The two situations are clearly different. Police officers are always armed with 'dangerous weapons' and may legitimately employ those weapons to administer reasonable force. Where an officer's initial use of force103is provoked and lawful, the line between a legal arrest and an unlawful deprivation of civil rights within the aggravated assault Guideline is relatively thin. The stringent aggravated assault Guideline, along with its upward adjustments for use of a deadly weapon and bodily injury, contemplates a range of offenses involving deliberate and unprovoked assaultive conduct. The Guidelines do not adequately account for the differences between such 'heartland' offenses and the case at hand." Ibid.The Court of Appeals rejected this analysis. It interpreted the District Court to have found that King had been the but-for cause of the crime, not that he had provoked it. According to the Court of Appeals, the District Court "ultimately focused not on provocation itself but rather on the volatility of the incident, and the close proximity between, on the one hand, the victim's misconduct and the officers' concomitant lawful use of force, and, on the other hand, the appellants' unlawful use or authorization of the use of force." 34 F. 3d, at 1459. The Court of Appeals thought these considerations did not justify departure for victim misconduct. It first quoted the test this Court formulated for excessive force cases under the Fourth Amendment:"'The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.'" Ibid. (quoting Graham v. Connor, 490 U. S. 386, 396-397 (1989)).The Court of Appeals reasoned that "before a use of force can be found excessive, the Graham 'calculus,' embracing the very factor which the district court found to be unusual in this case-the 'dynamic arrest situation' -has been taken into consideration." 34 F. 3d, at 1459. Indeed, it noted the104jury not only had to take the Graham factors into account, but also, to establish criminal liability, had to conclude that the petitioners "willfully came down on the wrong side of the Graham standard." 34 F. 3d, at 1459 (emphasis in original). The Court of Appeals concluded that "the feature which the district court found unusual, and exculpatory, is built into the most fundamental structure of excessive force jurisprudence, and in criminal cases is built in twice." Ibid.The court misinterpreted both the District Court's opinion and the heartland of the applicable Guideline range. The District Court's observation that the incident would not have occurred at all "but for" King's misconduct does not alter the further ruling that King provoked petitioners' illegal use of force. At the outset of its analysis, the District Court stated: "[T]he Court finds, and considers as a mitigating circumstance, that Mr. King's wrongful conduct contributed significantly to provoking the offense behavior." 833 F. Supp., at 786. It later discussed "Mr. King's wrongdoing and the substantial role it played in bringing about the defendants' unlawful conduct." Id., at 787. Indeed, a finding that King's misconduct provoked lawful force but not the unlawful force that followed without interruption would be a startling interpretation and contrary to ordinary understandings of provocation. A response need not immediately follow an action in order to be provoked by it. The Commission recognized this when it noted that although victim misconduct would rarely be a basis for departure in a nonviolent offense, "an extended course of provocation and harassment might lead a defendant to steal or destroy property in retaliation." 1992 USSG § 5K2.10. Furthermore, even if an immediate response were required by § 5K2.10, it occurred here: The excessive force followed within seconds of King's misconduct.The Court of Appeals misinterpreted the heartland of § 2H1.4 by concentrating on whether King's misconduct105made this an unusual case of excessive force. If § 2H1.4 covered punishment only for excessive force cases, it might well be a close question whether victim misconduct of this kind would be sufficient to take the case out of the heartland. Section 2H1.4 is not so designed, however. It incorporates the Guideline for the underlying offense, here § 2A2.2 for aggravated assault, and thus creates a Guideline range and a heartland for aggravated assault committed under color of law. As the District Court was correct to point out, the same Guideline range applies both to a government official who assaults a citizen without provocation as well as instances like this where what begins as legitimate force becomes excessive. The District Court did not abuse its discretion in differentiating between the classes of cases, nor did it do so in concluding that unprovoked assaults constitute the relevant heartland. Victim misconduct is an encouraged ground for departure. A district court, without question, would have had discretion to conclude that victim misconduct could take an aggravated assault case outside the heartland of § 2A2.2. That petitioners' aggravated assaults were committed under color of law does not change the analysis. The Court of Appeals thought that it did because § 2H1.4 "explicitly enhances sentences for official misconduct beyond those for civilian misconduct." 34 F. 3d, at 1460. The statement is a non sequitur. Section 2H1.4 imposes a sixlevel increase regardless of whether the government official's aggravated assault is provoked or unprovoked. Aggravated assault committed under color of law always will be punished more severely than ordinary aggravated assault. The District Court did not compare civilian offenders with official offenders; it compared official offenders who are provoked with official offenders who are not. That was the correct inquiry. The punishment prescribed by § 2A2.2 contemplates unprovoked assaults, and as a consequence, the District Court did not abuse its discretion in departing downward for King's misconduct in provoking the wrong.106BWe turn now to the three-level departure. As an initial matter, the Government urges us to hold each of the factors relied upon by the District Court to be impermissible departure factors under all circumstances. A defendant's loss of career opportunities must always be an improper consideration, the Government argues, because "persons convicted of crimes suffer a wide range of consequences in addition to the sentence." Brief for United States 38. Susceptibility to prison abuse, continues the Government, likewise never should be considered because the "degree of vulnerability to assault is an entirely 'subjective' judgment, and the number of defendants who may qualify for that departure is 'virtually unlimited.'" Id., at 39 (quoting 34 F. 3d, at 1455). And so on.Those arguments, however persuasive as a matter of sentencing policy, should be directed to the Commission. Congress did not grant federal courts authority to decide what sorts of sentencing considerations are inappropriate in every circumstance. Rather, 18 U. S. C. § 3553(b) instructs a court that, in determining whether there exists an aggravating or mitigating circumstance of a kind or to a degree not adequately considered by the Commission, it should consider "only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." The Guidelines, however, "place essentially no limit on the number of potential factors that may warrant a departure." Burns v. United States, 501 U. S. 129, 136-137 (1991). The Commission set forth factors courts may not consider under any circumstances but made clear that with those exceptions, it "does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case." 1995 USSG ch. I, pt. A, intro. comment. 4(b). Thus, for the courts to conclude a factor must not be considered107under any circumstances would be to transgress the policymaking authority vested in the Commission.An example is helpful. In United States v. Lara, 905 F.2d 599 (1990), the Court of Appeals for the Second Circuit upheld a District Court's downward departure based on the defendant's "potential for victimization" in prison due to his diminutive size, immature appearance, and bisexual orientation. Id., at 601. In what appeared to be a response to Lara, the Commission amended 1989 USSG § 5H1.4, to make [p]hysicial ... appearance, including physique," a discouraged factor. 1995 USSG App. C, Arndt. 386 (effective Nov. 1, 1991). The Commission did not see fit, however, to prohibit consideration of physical appearance in all cases, nor did it address the broader category of susceptibility to abuse in prison. By urging us to hold susceptibility to abuse in prison to be an impermissible factor in all cases, the Government would have us reject the Commission's considered judgment in favor of our own.The Government acknowledges as much but says its position is required by 18 U. S. C. § 3553(a)(2). The statute provides:"The court, in determining the particular sentence to be imposed, shall consider-"(2) the need for the sentence imposed-"(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;"(B) to afford adequate deterrence to criminal conduct; "(C) to protect the public from further crimes of the defendant; and"(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner."108Echoing the Court of Appeals, the Government interprets § 3553(a)(2) to direct courts to test potential departure factors against its broad sentencing goals and to reject, as a categorical matter, factors that are inconsistent with them. The Government and the Court of Appeals read too much into § 3553(a)(2). The statute requires a court to consider the listed goals in determining "the particular sentence to be imposed." The wording suggests that the goals should be considered in determining which sentence to choose from a given Guideline range or from outside the range, if a departure is appropriate. The statute says nothing about requiring each potential departure factor to advance one of the specified goals. So long as the overall sentence is "sufficient, but not greater than necessary, to comply" with the above-listed goals, the statute is satisfied. § 3553(a).Even if the text of the statute were ambiguous, we would reject the Government's interpretation. The Government's theory-that § 3553(a)(2) directs courts to decide for themselves, by reference to the broad, open-ended goals of the provision, whether a given factor ever can be an appropriate sentencing consideration-would impose widespread judicial control over sentencing policy. This in turn would nullify the Commission's treatment of particular departure factors and its determination that, with few exceptions, departure factors should not be ruled out on a categorical basis. The sparse text of § 3553(a)(2) cannot support this implausible result. Congress created the Commission to "establish sentencing policies and practices for the Federal criminal justice system," 28 U. S. C. § 991(b)(1), and Congress instructed the Commission, not the courts, to "review and revise" the Guidelines periodically, § 994(0). As a result, the Commission has assumed that its role is "over time [to] ... refine the guidelines to specify more precisely when departures should and should not be permitted." 1992 USSG ch. I, pt. A, intro. comment. 4(b). Had Congress intended the courts to supervise the Commission's treatment of departure factors, we ex-109pect it would have said so in a clear way. It did not, and we will not assume this role.We conclude, then, that a federal court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, consideration of the factor. If the answer to the question is no-as it will be most of the time-the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline. We now turn to the four factors underlying the District Court's three-level departure.1The first question is whether the District Court abused its discretion in relying on the collateral employment consequences petitioners would face as a result of their convictions. The District Court stated:"Defendants Koon and Powell will be subjected to a multiplicity of adversarial proceedings. The LAPD Board of Rights will charge Koon and Powell with a felony conviction and, in a quasi-judicial proceeding, will strip them of their positions and tenure. Koon and Powell will be disqualified from other law enforcement careers. In combination, the additional proceedings, the loss of employment and tenure, prospective disqualification from the field of law enforcement, and the anguish and disgrace these deprivations entail, will constitute substantial punishment in addition to any courtimposed sentence. In short, because Koon and Powell are police officers, certain unique burdens flow from their convictions." 833 F. Supp., at 789 (footnotes omitted).The Court of Appeals rejected the District Court's analysis, noting among other things the "ease with which this fac-110tor can be used to justify departures that are based, either consciously or unconsciously, on the defendant's socioeconomic status, a factor that is never a permissible basis for review." 34 F. 3d, at 1454. We agree with the Court of Appeals that a defendant's career may relate to his or her socioeconomic status, but the link is not so close as to justify categorical exclusion of the effect of conviction on a career. Although an impermissible factor need not be invoked by name to be rejected, socioeconomic status and job loss are not the semantic or practical equivalents of each other.We nonetheless conclude that the District Court abused its discretion by considering petitioners' career loss because the factor, as it exists in these circumstances, cannot take the suit out of the heartland of 1992 USSG § 2H1.4. As noted above, 18 U. S. C. § 242 offenses may take a variety of forms, but they must involve willful violations of rights under color of law. Although cognizant of the deference owed to the District Court, we must conclude it is not unusual for a public official who is convicted of using his governmental authority to violate a person's rights to lose his or her job and to be barred from future work in that field. Indeed, many public employees are subject to termination and are prevented from obtaining future government employment following conviction of a serious crime, whether or not the crime relates to their employment. See Cal. Govt. Code Ann. § 19572(k) (West 1995) ("Conviction of a felony or conviction of a misdemeanor involving moral turpitude" constitutes cause for dismissal); § 18935(f) (State Personnel Board may refuse to declare eligible for state employment one who has "been convicted of a felony, or convicted of a misdemeanor involving moral turpitude"); Ky. Rev. Stat. Ann. 18A.146(2) (Michie 1992); 4 Pa. Code § 7.173 (1995). Public officials convicted of violating § 242 have done more than engage in serious criminal conduct; they have done so under color of the law they have sworn to uphold. It is to be expected that a government official would be subject111to the career-related consequences petitioners faced after violating § 242, so we conclude these consequences were adequately considered by the Commission in formulating §2H1.4.2We further agree with the Court of Appeals that the low likelihood of petitioners' recidivism was not an appropriate basis for departure. Petitioners were first-time offenders and so were classified in criminal history category 1. The District Court found that "[w]ithin Criminal History Category I, the Guidelines do not adequately distinguish defendants who, for a variety of reasons, are particularly unlikely to commit crimes in the future. Here, the need to protect the public from the defendants' future criminal conduct is absent 'to a degree' not contemplated by the Guidelines." 833 F. Supp., at 790, n. 20. The District Court failed to account for the Commission's specific treatment of this issue, however. After explaining that a district court may depart upward from the highest criminal offense category, the Commission stated:"However, this provision is not symmetrical. The lower limit of the range for Criminal History Category I is set for a first offender with the lowest risk of recidivism. Therefore, a departure below the lower limit of the guideline range for Criminal History Category I on the basis of the adequacy of criminal history cannot be appropriate." 1992 USSG § 4A1.3.The District Court abused its discretion by considering appellants' low likelihood of recidivism. The Commission took that factor into account in formulating the criminal history category.3The two remaining factors are susceptibility to abuse in prison and successive prosecutions. The District Court did not abuse its discretion in considering these factors. The112Court of Appeals did not dispute, and neither do we, the District Court's finding that "[t]he extraordinary notoriety and national media coverage of this case, coupled with the defendants' status as police officers, make Koon and Powell unusually susceptible to prison abuse," 833 F. Supp., at 785-786. Petitioners' crimes, however brutal, were by definition the same for purposes of sentencing law as those of any other police officers convicted under 18 U. S. C. § 242 of using unreasonable force in arresting a suspect, sentenced under § 2H1.4, and receiving the upward adjustments petitioners received. Had the crimes been still more severe, petitioners would have been assigned a different base offense level or received additional upward adjustments. Yet, due in large part to the existence of the videotape and all the events that ensued, "widespread publicity and emotional outrage ... have surrounded this case from the outset," 833 F. Supp., at 788, which led the District Court to find petitioners "particularly likely to be targets of abuse during their incarceration," ibid. The District Court's conclusion that this factor made the case unusual is just the sort of determination that must be accorded deference by the appellate courts.As for petitioners' successive prosecutions, it is true that consideration of this factor could be incongruous with the dual responsibilities of citizenship in our federal system in some instances. Successive state and federal prosecutions do not violate the Double Jeopardy Clause. Heath v. Alabama, 474 U. S. 82 (1985). Nonetheless, the District Court did not abuse its discretion in determining that a "federal conviction following a state acquittal based on the same underlying conduct ... significantly burden[ed] the defendants." 833 F. Supp., at 790. The state trial was lengthy, and the toll it took is not beyond the cognizance of the District Court.113VThe goal of the Sentencing Guidelines is, of course, to reduce unjustified disparities and so reach toward the evenhandedness and neutrality that are the distinguishing marks of any principled system of justice. In this respect, the Guidelines provide uniformity, predictability, and a degree of detachment lacking in our earlier system. This, too, must be remembered, however. It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue. We do not understand it to have been the congressional purpose to withdraw all sentencing discretion from the United States district judge. Discretion is reserved within the Sentencing Guidelines, and reflected by the standard of appellate review we adopt.***The Court of Appeals identified the wrong standard of review. It erred as well in finding that victim misconduct did not justify the five-level departure and that susceptibility to prison abuse and the burdens of successive prosecutions could not be relied upon for the three-level departure. Those sentencing determinations were well within the sound discretion of the District Court. The District Court did abuse its discretion in relying on the other two factors forming the three-level departure: career loss and low recidivism risk. When a reviewing court concludes that a district court based a departure on both valid and invalid factors, a remand is required unless it determines the district court would have imposed the same sentence absent reliance on the invalid factors. Williams, 503 U. S., at 203. As the District Court here stated that none of the four factors standing alone would justify the three-level departure, it is not evident that114Opinion of SOUTER, J.the court would have imposed the same sentence if it had relied only on susceptibility to abuse in prison and the hardship of successive prosecutions. The Court of Appeals should therefore remand the case to the District Court.The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1995SyllabusKOON v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 94-1664. Argued February 20, 1996-Decided June 13, 1996*After petitioners, Los Angeles police officers, were acquitted on state charges of assault and excessive use of force in the beating of a suspect during an arrest, they were convicted under 18 U. S. C. § 242 of violating the victim's constitutional rights under color of law. Although the applicable United States Sentencing Guideline, 1992 USSG § 2H1.4, indicated that they should be imprisoned for 70 to 87 months, the District Court granted them two downward departures from that range. The first was based on the victim's misconduct, which contributed significantly to provoking the offense. The second was based on a combination of four factors: (1) that petitioners were unusually susceptible to abuse in prison; (2) that petitioners would lose their jobs and be precluded from employment in law enforcement; (3) that petitioners had been subject to successive state and federal prosecutions; and (4) that petitioners posed a low risk of recidivism. The sentencing range after the departures was 30 to 37 months, and the court sentenced each petitioner to 30 months. The Ninth Circuit reviewed the departure decisions de novo and rejected all of them.Held:1. An appellate court should not review de novo a decision to depart from the Guideline sentencing range, but instead should ask whether the sentencing court abused its discretion. Pp. 92-100.(a) Although the Sentencing Reform Act of 1984 requires that a district court impose a sentence within the applicable Guideline range in an ordinary case, 18 U. S. C. § 3553(a), it does not eliminate all of the district court's traditional sentencing discretion. Rather, it allows a departure from the range if the court finds "there exists an aggravating or mitigating circumstance of a kind, to a degree, not adequately taken into consideration" by the Sentencing Commission in formulating the Guidelines, § 3553(b). The Commission states that it has formulated each Guideline to apply to a "heartland" of typical cases and that it did not "adequately ... conside[r]" atypical cases, 1995 USSG ch. 1, pt. A,*Together with No. 94-8842, Powell v. United States, also on certiorari to the same court.82Syllabusintro. comment. 4(b). The Commission prohibits consideration of a few factors, and it provides guidance as to the factors that are likely to make a case atypical by delineating certain of them as "encouraged" bases for departure and others as "discouraged" bases for departure. Courts may depart on the basis of an encouraged factor if the applicable Guideline does not already take the factor into account. A court may depart on the basis of a discouraged factor, or an encouraged factor already taken into account, however, only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case. If the Guidelines do not mention a factor, the court must, after considering the structure and theory of relevant individual Guidelines and the Guidelines as a whole, decide whether the factor is sufficiently unusual to take the case out of the Guideline's heartland, bearing in mind the Commission's expectation that departures based on factors not mentioned in the Guidelines will be "highly infrequent." Pp.92-96.(b) Although 18 U. S. C. §3742 established a limited appellate review of sentencing decisions, § 37 42(e)( 4)'s direction to "give due deference to the district court's application of the guidelines to the facts" demonstrates that the Act was not intended to vest in appellate courts wide-ranging authority over district court sentencing decisions. See, e. g., Williams v. United States, 503 U. S. 193,205. The deference that is due depends on the nature of the question presented. A departure decision will in most cases be due substantial deference, for it embodies the sentencing court's traditional exercise of discretion. See Mistretta v. United States, 488 U. S. 361, 367. To determine if a departure is appropriate, the district court must make a refined assessment of the many facts that bear on the outcome, informed by its vantage point and dayto-day sentencing experience. Whether a given factor is present to a degree not adequately considered by the Commission, or whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially given that they see so many more Guidelines cases. Such considerations require adoption of the abuseof-discretion standard of review, not de novo review. See, e. g., Cooter & Gell v. Hartmarx Corp., 496 U. S. 384,403. Pp. 96-100.2. Because the Court of Appeals erred in rejecting certain of the downward departure factors relied upon by the District Judge, the foregoing principles require reversal of the appellate court's rulings in significant part. Pp. 100-114.83Full Text of Opinion

1999_99-224

a continuing, executory decree remains subject to alteration due to changes in the underlying law. Cf. Landgraf v. USI Film Products, 511 U. S. 244, 273. This conclusion follows from the Court's decision in Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 432 (Wheeling Bridge II), that prospective relief it issued in Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518 (Wheeling Bridge I), became unenforceable after Congress altered the law underlying the ongoing relief. Applied here, the Wheeling Bridge II principles demonstrate that § 3626(e)(2)'s automatic stay does not unconstitutionally suspend or reopen an Article III court's judgment. It does not tell judges when, how, or what to do, but reflects the change implemented by § 3626(b), which establishes new standards for prospective relief. As Plaut and Wheeling Bridge II instruct, when Congress changes the law underlying the judgment awarding such relief, that relief is no longer enforceable to the extent it is inconsistent with the new law. Although the remedial injunction here is a final judgment for purposes of appeal, it is not the last word of the judicial department, for it is subject to the court's continuing supervisory jurisdiction, and therefore may be altered according to subsequent changes in the law. For the same reasons, § 3626(e)(2) does not violate the separation of powers principle articulated in United States v. Klein, 13 Wall. 128, where the Court found unconstitutional a statute purporting to prescribe rules of decision to the Federal Judiciary in cases pending before it. That § 3626(e)(2) does not itself amend the legal standard does not help respondents; when read in the context of § 3626 as a whole, the provision does not prescribe a rule of decision but imposes the consequences of the court's application of the new legal standard. Finally, Congress' imposition of the time limit in § 3626(e)(2) does not offend the structural concerns underlying the separation of powers. Whether that time is so short that it deprives litigants of an opportunity to be heard is a due process question not before this Court. Nor does the Court have occasion to decide here whether there could be a time constraint on judicial action that was so severe that it implicated structural separation of powers concerns. Pp.341-350.178 F.3d 437, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and in which SOUTER and GINSBURG, JJ., joined as to Parts I and II. SOUTER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined, post, p. 350. BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined, post, p. 353.330CounselJon Laramore, Deputy Attorney General of Indiana, argued the cause for petitioners in No. 99-224. With him on the briefs were Karen M. Freeman-Wilson, Attorney General, Jeffrey A. Modisett, former Attorney General, and Wayne E. Uhl and Geoffrey G. Slaughter, Deputy Attorneys General.Deputy Solicitor General Underwood argued the cause for the United States in No. 99-582. With her on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Lee, Irving L. Gornstein, and Mark L. Gross.Kenneth J. Falk argued the cause for respondents in both cases. With him on the brief were Jacquelyn E. Bowie, Hamid R. Kashani, Steven R. Shapiro, and Elizabeth Alexander. ttBriefs of amici curiae urging reversal were filed for the State of Texas et al. by John Cornyn, Attorney General of Texas, Andy Taylor, First Assistant Attorney General, Shane Phelps, Deputy Attorney General, Gregory S. Coleman, Solicitor General, Charles K. Eldred, Assistant Attorney General, and Robert Rigsby, Acting Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Robert A. Russell, Jr., of Arkansas, Bill Lockyer of California, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, John J. Farmer, Jr., of New Jersey, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Charlie Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, Jan Graham of Utah, Christine O. Gregoire of Washington, and Gay Woodhouse of Wyoming; for Americans for Effective Law Enforcement, Inc., et al. by Wayne W Schmidt, Bernard J. Farber, James P. Manak, and Richard Weintraub; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; for the National Governors' Association et al. by Richard Ruda and James I. Crowley; and for the Washington Legal Foundation et al. by Paul D. Clement, Daniel J. Popeo, and R. Shawn Gunnarson.Briefs of amici curiae urging affirmance were filed for Public Citizen by Alan B. Morrison and David C. Vladeck; for Arizona State Prison331JUSTICE O'CONNOR delivered the opinion of the Court. The Prison Litigation Reform Act of 1995 (PLRA) establishes standards for the entry and termination of prospective relief in civil actions challenging prison conditions. §§ 801-810, 110 Stat. 1321-66 to 1321-77. If prospective relief under an existing injunction does not satisfy these standards, a defendant or intervenor is entitled to "immediate termination" of that relief. 18 U. S. C. § 3626(b)(2) (1994 ed., Supp. IV). And under the PLRA's "automatic stay" provision, a motion to terminate prospective relief "shall operate as a stay" of that relief during the period beginning 30 days after the filing of the motion (extendable to up to 90 days for "good cause") and ending when the court rules on the motion. §§ 3626(e)(2), (3). The superintendent of Indiana's Pendleton Correctional Facility, which is currently operating under an ongoing injunction to remedy violations of the Eighth Amendment regarding conditions of confinement, filed a motion to terminate prospective relief under the PLRA. Respondent prisoners moved to enjoin the operation of the automatic stay provision of § 3626(e)(2), arguing that it is unconstitutional. The District Court enjoined the stay, and the Court of Appeals for the Seventh Circuit affirmed. We must decide whether a district court may enjoin the operation of the PLRA's automatic stay provision and, if not, whether that provision violates separation of powers principles.I AThis litigation began in 1975, when four inmates at what is now the Pendleton Correctional Facility brought a classSystem Inmates by John P. Frank; and for Erwin Chemerinsky et al. by Mr. Chemerinsky, pro se.Sarah B. Vandenbraak, Michael D. Hess, Leonard J. Koerner, and Lorna B. Goodman filed a brief for the Association of State Correctional Administrators et al. as amici curiae.332action under Rev. Stat. § 1979, 42 U. S. C. § 1983, on behalf of all persons who were, or would be, confined at the facility against the predecessors in office of petitioners (hereinafter State). 1 Record, Doc. No.1, p. 2. After a trial, the District Court found that living conditions at the prison violated both state and federal law, including the Eighth Amendment's prohibition against cruel and unusual punishment, and the court issued an injunction to correct those violations. French v. Owens, 538 F. Supp. 910 (SD Ind. 1982), aff'd in part, vacated and remanded in part, 777 F.2d 1250 (CA7 1985). While the State's appeal was pending, this Court decided Pennhurst State School and Hospital v. Halderman, 465 U. S. 89 (1984), which held that the Eleventh Amendment deprives federal courts of jurisdiction over claims for injunctive relief against state officials based on state law. Accordingly, the Court of Appeals for the Seventh Circuit remanded the action to the District Court for reconsideration. 777 F. 2d, at 1251. On remand, the District Court concluded that most of the state law violations also ran afoul of the Eighth Amendment, and it issued an amended remedial order to address those constitutional violations. The order also accounted for improvements in living conditions at the Pendleton facility that had occurred in the interim. Ibid.The Court of Appeals affirmed the amended remedial order as to those aspects governing overcrowding and double celling, the use of mechanical restraints, staffing, and the quality of food and medical services, but it vacated those portions pertaining to exercise and recreation, protective custody, and fire and occupational safety standards. Id., at 1258. This ongoing injunctive relief has remained in effect ever since, with the last modification occurring in October 1988, when the parties resolved by joint stipulation the remaining issues related to fire and occupational safety standards. 1 Record, Doc. No. 14.333BIn 1996, Congress enacted the PLRA. As relevant here, the PLRA establishes standards for the entry and termination of prospective relief in civil actions challenging conditions at prison facilities. Specifically, a court "shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." 18 U. S. C. § 3626(a)(1)(A) (1994 ed., Supp. IV). The same criteria apply to existing injunctions, and a defendant or intervenor may move to terminate prospective relief that does not meet this standard. See § 3626(b)(2). In particular, § 3626(b)(2) provides:"In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right."A court may not terminate prospective relief, however, if it "makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means necessary to correct the violation." § 3626(b)(3). The PLRA also requires courts to rule "promptly" on motions to terminate prospective relief, with mandamus available to remedy a court's failure to do so. § 3626(e)(1).Finally, the provision at issue here, § 3626(e)(2), dictates that, in certain circumstances, prospective relief shall be334stayed pending resolution of a motion to terminate. Specifically, subsection (e)(2), entitled "Automatic Stay," states:"Any motion to modify or terminate prospective relief made under subsection (b) shall operate as a stay during the period-"(A)(i) beginning on the 30th day after such motion is filed, in the case of a motion made under paragraph (1) or (2) of subsection (b); ..."(ii) ... and "(B) ending on the date the court enters a final order ruling on the motion."As one of several 1997 amendments to the PLRA, Congress permitted courts to postpone the entry of the automatic stay for not more than 60 days for "good cause," which cannot include general congestion of the court's docket. § 123, 111 Stat. 2470, codified at 18 U. S. C. §3626(e)(3).*COn June 5, 1997, the State filed a motion under § 3626(b) to terminate the prospective relief governing the conditions of confinement at the Pendleton Correctional Facility. 1 Record, Doc. No. 16. In response, the prisoner class moved for a temporary restraining order or preliminary injunction to enjoin the operation of the automatic stay, arguing that § 3626(e)(2) is unconstitutional as both a violation of the Due Process Clause of the Fifth Amendment and separation of powers principles. The District Court granted* As originally enacted, § 3626(e)(2) provided that "[a]ny prospective relief subject to a pending motion [for termination] shall be automatically stayed during the period ... beginning on the 30th day after such motion is filed ... and ending on the date the court enters a final order ruling on the motion." §802, 110 Stat. 1321-68 to 1321-69. The 1997 amendments to the PLRA revised the automatic stay provision to its current form, and Congress specified that the 1997 amendments "shall apply to pending cases." 18 U. S. C. § 3626 note (1994 ed., Supp. IV).335the prisoners' motion, enjoining the automatic stay. See id., Doc. No. 23; see also French v. Duckworth, 178 F.3d 437, 440-441 (CA7 1999). The State appealed, and the United States intervened pursuant to 28 U. S. C. § 2403(a) to defend the constitutionality of § 3626(e)(2).The Court of Appeals for the Seventh Circuit affirmed the District Court's order, concluding that although § 3626(e)(2) precluded courts from exercising their equitable powers to enjoin operation of the automatic stay, the statute, so construed, was unconstitutional on separation of powers grounds. See 178 F. 3d, at 447-448. The court reasoned that Congress drafted § 3626(e)(2) in unequivocal terms, clearly providing that a motion to terminate under § 3626(b)(2) "shall operate" as a stay during a specified time period. Id., at 443. While acknowledging that courts should not lightly assume that Congress meant to restrict the equitable powers of the federal courts, the Court of Appeals found "it impossible to read this language as doing anything less than that." Ibid. Turning to the constitutional question, the court characterized § 3626(e)(2) as "a self-executing legislative determination that a specific decree of a federal court ... must be set aside at least for a period of time." Id., at 446. As such, it concluded that § 3626(e)(2) directly suspends a court order in violation of the separation of powers doctrine under Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 (1995), and mandates a particular rule of decision, at least during the pendency of the § 3626(b)(2) termination motion, contrary to United States v. Klein, 13 Wall. 128 (1872). See 178 F. 3d, at 446. Having concluded that § 3626(e)(2) is unconstitutional on separation of powers grounds, the Court of Appeals did not reach the prisoners' due process claims. Over the dissent of three judges, the court denied rehearing en bane. See id., at 448-453 (Easterbrook, J., dissenting from denial of rehearing en bane).We granted certiorari, 528 U. S. 1045 (1999), to resolve a conflict among the Courts of Appeals as to whether336§ 3626(e)(2) permits federal courts, in the exercise of their traditional equitable authority, to enjoin operation of the PLRA's automatic stay provision and, if not, to review the Court of Appeals' judgment that § 3626(e)(2), so construed, is unconstitutional. Compare Ruiz v. Johnson, 178 F.3d 385 (CA5 1999) (holding that district courts retain the equitable discretion to suspend the automatic stay and that § 3626(e)(2) is therefore constitutional); Hadix v. Johnson, 144 F. 3d 925 (CA6 1998) (same), with 178 F.3d 437 (CA7 1999) (case below).IIWe address the statutory question first. Both the State and the prisoner class agree, as did the majority and dissenting judges below, that § 3626(e)(2) precludes a district court from exercising its equitable powers to enjoin the automatic stay. The Government argues, however, that § 3626(e)(2) should be construed to leave intact the federal courts' traditional equitable discretion to "stay the stay," invoking two canons of statutory construction. First, the Government contends that we should not interpret a statute as displacing courts' traditional equitable authority to preserve the status quo pending resolution on the merits "[a]bsent the clearest command to the contrary." Califano v. Yamasaki, 442 U. S. 682, 705 (1979). Second, the Government asserts that reading § 3626(e)(2) to remove that equitable power would raise serious separation of powers questions, and therefore should be avoided under the canon of constitutional doubt. Like the Court of Appeals, we do not lightly assume that Congress meant to restrict the equitable powers of the federal courts, and we agree that constitutionally doubtful constructions should be avoided where "fairly possible." Communications Workers v. Beck, 487 U. S. 735, 762 (1988). But where Congress has made its intent clear, "we must give effect to that intent." Sinclair Refining Co. v. Atkinson, 370 U. S. 195, 215 (1962).337The text of § 3626(e)(2) provides that "[a]ny motion to ... terminate prospective relief made under subsection (b) shall operate as a stay" during a fixed period of time, i. e., from 30 (or 90) days after the motion is filed until the court enters a final order ruling on the motion. 18 U. S. C. § 3626(e)(2) (1994 ed., Supp. IV) (emphasis added). The stay is "automatic" once a state defendant has filed a § 3626(b) motion, and the statutory command that such a motion "shall operate as a stay during the [specified time] period" indicates that the stay is mandatory throughout that period of time. See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) ("[T]he mandatory 'shall' ... normally creates an obligation impervious to judicial discretion").Nonetheless, the Government contends that reading the statute to preserve courts' traditional equitable powers to enter appropriate injunctive relief is consistent with this text because, in its view, § 3626(e)(2) is simply a burdenshifting mechanism. That is, the purpose of the automatic stay provision is merely to relieve defendants of the burden of establishing the prerequisites for a stay and to eliminate courts' discretion to deny a stay, even if those prerequisites are established, based on the public interest or hardship to the plaintiffs. Thus, under this reading, nothing in § 3626(e)(2) prevents courts from subsequently suspending the automatic stay by applying the traditional standards for injunctive relief.Such an interpretation, however, would subvert the plain meaning of the statute, making its mandatory language merely permissive. Section 3626(e)(2) states that a motion to terminate prospective relief "shall operate as a stay during" the specified time period from 30 (or 90) days after the filing of the § 3626(b) motion until the court rules on that motion. (Emphasis added.) Thus, not only does the statute employ the mandatory term "shall," but it also specifies the points at which the operation of the stay is to begin and end. In other words, contrary to JUSTICE BREYER'S suggestion338that the language of § 3626(e)(2) "says nothing ... about the district court's power to modify or suspend the operation of the 'stay,'" post, at 358 (dissenting opinion), § 3626(e)(2) unequivocally mandates that the stay "shall operate during" this specific interval. To allow courts to exercise their equitable discretion to prevent the stay from "operating" during this statutorily prescribed period would be to contradict § 3626(e)(2)'s plain terms. It would mean that the motion to terminate merely may operate as a stay, despite the statute's command that it "shall" have such effect. If Congress had intended to accomplish nothing more than to relieve state defendants of the burden of establishing the prerequisites for a stay, the language of § 3626(e)(2) is, at best, an awkward and indirect means to achieve that result.Viewing the automatic stay provision in the context of § 3626 as a whole further confirms that Congress intended to prohibit federal courts from exercising their equitable authority to suspend operation of the automatic stay. The specific appeal provision contained in § 3626(e) states that "[a]ny order staying, suspending, delaying, or barring the operation of the automatic stay" of § 3626(e)(2) "shall be appealable" pursuant to 28 U. S. C. § 1292(a)(1). § 3626(e)(4). At first blush, this provision might be read as supporting the view that Congress expressly recognized the possibility that a district court could exercise its equitable discretion to enjoin the stay. The two Courts of Appeals that have construed § 3626(e)(2) as preserving the federal courts' equitable powers have reached that conclusion based on this reading of § 3626(e)(4). See Ruiz v. Johnson, 178 F. 3d, at 394; Hadix v. Johnson, 144 F. 3d, at 938. They reasoned that Congress would not have provided for expedited review of such orders had it not intended that district courts would retain the power to enter the orders in the first place. See ibid. In other words, "Congress understood that there would be some cases in which a conscientious district court acting in good faith would perceive that equity required that it suspend"339the § 3626(e)(2) stay, and "Congress therefore permitted the district court to do so, subject to appellate review." Ruiz v. Johnson, supra, at 394.The critical flaw in this construction, however, is that § 3626(e)(4) only provides for an appeal from an order preventing the operation of the automatic stay. § 3626(e)(4) ("Any order staying, suspending, delaying, or barring the operation of the automatic stay" under § 3626(e)(2) "shall be appealable"). If the rationale for the provision were that in some situations equity demands that the automatic stay be suspended, then presumably the denial of a motion to enjoin the stay should also be appealable. The one-way nature of the appeal provision only makes sense if the automatic stay is required to operate during a specific time period, such that any attempt by a district court to circumvent the mandatory stay is immediately reviewable.The Government contends that if Congress' goal were to prevent courts from circumventing the PLRA's plain commands, mandamus would have been a more appropriate remedy than appellate review. But that proposition is doubtful, as mandamus is an extraordinary remedy that is "granted only in the exercise of sound discretion." Whitehouse v. Illinois Central R. Co., 349 U. S. 366, 373 (1955). Given that curbing the equitable discretion of district courts was one of the PLRA's principal objectives, it would have been odd for Congress to have left enforcement of § 3626(e)(2) to that very same discretion. Instead, Congress sensibly chose to make available an immediate appeal to resolve situations in which courts mistakenly believe-under the novel scheme created by the PLRA-that they have the authority to enjoin the automatic stay, rather than the extraordinary remedy of mandamus, which requires a showing of a "clear and indisputable" right to the issuance of the writ. See Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490 U. S. 296, 309 (1989). In any event, § 3626(e) as originally enacted did not provide for interlocutory review. It was340only after some courts refused to enter the automatic stay, and after the Court of Appeals for the Fifth Circuit would not review such a refusal, that Congress amended § 3626(e) to provide for interlocutory review. See In re Scott, 163 F. 3d 282, 284 (CAS 1998); Ruiz v. Johnson, supra, at 388; see also 18 U. S. C. § 3626(e)(4) (1994 ed., Supp. IV).Finally, the Government finds support for its view in § 3626(e)(3). That provision authorizes an extension, for "good cause," of the starting point for the automatic stay, from 30 days after the § 3626(b) motion is filed until 90 days after that motion is filed. The Government explains that, by allowing the court to prevent the entry of the stay for up to 60 days under the relatively generous "good cause" standard, Congress by negative implication has preserved courts' discretion to suspend the stay after that time under the more stringent standard for injunctive relief. To be sure, allowing a delay in entry of the stay for 60 days based on a good cause standard does not by itself necessarily imply that any other reason for preventing the operation of the stay-for example, on the basis of traditional equitable principles-is precluded. But § 3626(e)(3) cannot be read in isolation. When §§ 3626(e)(2) and (3) are read together, it is clear that the district court cannot enjoin the operation of the automatic stay. The § 3626(b) motion "shall operate as a stay during" a specific time period. Section 3626(e)(3) only adjusts the starting point for the stay, and it merely permits that starting point to be delayed. Once the 90-day period has passed, the § 3626(b) motion "shall operate as a stay" until the court rules on the § 3626(b) motion. During that time, any attempt to enjoin the stay is irreconcilable with the plain language of the statute.Thus, although we should not construe a statute to displace courts' traditional equitable authority absent the "clearest command," Califano v. Yamasaki, 442 U. S., at 705, or an "inescapable inference" to the contrary, Porter v. Warner Holding Co., 328 U. S. 395, 398 (1946), we are con-341vinced that Congress' intent to remove such discretion is unmistakable in § 3626(e)(2). And while this construction raises constitutional questions, the canon of constitutional doubt permits us to avoid such questions only where the saving construction is not "plainly contrary to the intent of Congress." Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). "We cannot press statutory construction 'to the point of disingenuous evasion' even to avoid a constitutional question." United States v. Locke, 471 U. S. 84, 96 (1985) (quoting George Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379 (1933)); see also Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (constitutional doubt canon does not apply where the statute is unambiguous); Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 841 (1986) (constitutional doubt canon "does not give a court the prerogative to ignore the legislative will"). Like the Court of Appeals, we find that § 3626(e)(2) is unambiguous, and accordingly, we cannot adopt JUSTICE BREYER'S "more flexible interpretation" of the statute. Post, at 355. Any construction that preserved courts' equitable discretion to enjoin the automatic stay would effectively convert the PLRA's mandatory stay into a discretionary one. Because this would be plainly contrary to Congress' intent in enacting the stay provision, we must confront the constitutional issue.IIIThe Constitution enumerates and separates the powers of the three branches of Government in Articles I, II, and III, and it is this "very structure" of the Constitution that exemplifies the concept of separation of powers. INS v. Chadha, 462 U. S. 919, 946 (1983). While the boundaries between the three branches are not" 'hermetically' sealed," see id., at 951, the Constitution prohibits one branch from encroaching on the central prerogatives of another, see Loving v. United States, 517 U. S. 748, 757 (1996); Buckley v.342Valeo, 424 U. S. 1, 121-122 (1976) (per curiam). The powers of the Judicial Branch are set forth in Article III, § 1, which states that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," and provides that these federal courts shall be staffed by judges who hold office during good behavior, and whose compensation shall not be diminished during tenure in office. As we explained in Plaut v. Spendthrift Farm, Inc., 514 U. S., at 218-219, Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy."Respondent prisoners contend that § 3626(e)(2) encroaches on the central prerogatives of the Judiciary and thereby violates the separation of powers doctrine. It does this, the prisoners assert, by legislatively suspending a final judgment of an Article III court in violation of Plaut and Hayburn's Case, 2 Dall. 409 (1792). According to the prisoners, the remedial order governing living conditions at the Pendleton Correctional Facility is a final judgment of an Article III court, and § 3626(e)(2) constitutes an impermissible usurpation of judicial power because it commands the district court to suspend prospective relief under that order, albeit temporarily. An analysis of the principles underlying Hayburn's Case and Plaut, as well as an examination of § 3626(e)(2)'s interaction with the other provisions of § 3626, makes clear that § 3626(e)(2) does not offend these separation of powers principles.Hayburn's Case arose out of a 1792 statute that authorized pensions for veterans of the Revolutionary War. See Act of Mar. 23, 1792, ch. 11, 1 Stat. 243. The statute provided that the circuit courts were to review the applications and determine the appropriate amount of the pension, but that the Secretary of War had the discretion either to adopt or reject the courts' findings. Hayburn's Case, supra, at 408-410.343Although this Court did not reach the constitutional issue in Hayburn's Case, the statements of five Justices, acting as circuit judges, were reported, and we have since recognized that the case "stands for the principle that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch." Plaut, supra, at 218; see also Morrison v. Olson, 487 U. S. 654, 677, n. 15 (1988). As we recognized in Plaut, such an effort by a coequal branch to "annul a final judgment" is "'an assumption of Judicial power' and therefore forbidden." 514 U. S., at 224 (quoting Bates v. Kimball, 2 Chipman 77 (Vt. 1824)).Unlike the situation in Hayburn's Case, § 3626(e)(2) does not involve the direct review of a judicial decision by officials of the Legislative or Executive Branches. Nonetheless, the prisoners suggest that § 3626(e)(2) falls within Hayburn's prohibition against an indirect legislative "suspension" or reopening of a final judgment, such as that addressed in Plaut. See Plaut, supra, at 226 (quoting Hayburn's Case, supra, at 413 (letter of Iredell, J., and Sitgreaves, D. J.) (" '[N]o decision of any court of the United States can, under any circumstances, ... be liable to a revision, or even suspension, by the [l]egislature itself, in whom no judicial power of any kind appears to be vested' ")). In Plaut, we held that a federal statute that required federal courts to reopen final judgments that had been entered before the statute's enactment was unconstitutional on separation of powers grounds. 514 U. S., at 211. The plaintiffs had brought a civil securities fraud action seeking money damages. Id., at 213. While that action was pending, we ruled in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350 (1991), that such suits must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation. In light of this intervening decision, the Plaut plaintiffs' suit was untimely, and the District Court accordingly dismissed the action as time barred. Plaut, supra, at 214. After the judgment dismissing the344case had become final, Congress enacted a statute providing for the reinstatement of those actions, including the Plaut plaintiffs', that had been dismissed under Lamp! but that would have been timely under the previously applicable statute of limitations. 514 U. S., at 215.We concluded that this retroactive command that federal courts reopen final judgments exceeded Congress' authority. Id., at 218-219. The decision of an inferior court within the Article III hierarchy is not the final word of the department (unless the time for appeal has expired), and "[i]t is the obligation of the last court in the hierarchy that rules on the case to give effect to Congress's latest enactment, even when that has the effect of overturning the judgment of an inferior court, since each court, at every level, must 'decide according to existing laws.'" Id., at 227 (quoting United States v. Schooner Peggy, 1 Cranch 103, 109 (1801)). But once a judicial decision achieves finality, it "becomes the last word of the judicial department." 514 U. S., at 227. And because Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy," id., at 218-219, the "judicial Power is one to render dispositive judgments," and Congress cannot retroactively command Article III courts to reopen final judgments, id., at 219 (quoting Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 926 (1990) (internal quotation marks omitted)).Plaut, however, was careful to distinguish the situation before the Court in that case-legislation that attempted to reopen the dismissal of a suit seeking money damages-from legislation that "altered the prospective effect of injunctions entered by Article III courts." 514 U. S., at 232. We emphasized that "nothing in our holding today calls ... into question" Congress' authority to alter the prospective effect of previously entered injunctions. Ibid. Prospective relief under a continuing, executory decree remains subject to alteration due to changes in the underlying law. Cf. Land-345graf v. USI Film Products, 511 U. S. 244, 273 (1994) ("When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive"). This conclusion follows from our decisions in Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518 (1852) (Wheeling Bridge 1), and Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421 (1856) (Wheeling Bridge II).In Wheeling Bridge I, we held that a bridge across the Ohio River, because it was too low, unlawfully "obstruct[edJ the navigation of the Ohio," and ordered that the bridge be raised or permanently removed. 13 How., at 578. Shortly thereafter, Congress enacted legislation declaring the bridge to be a "lawful structur[eJ," establishing the bridge as a "'post-roa[dJ for the passage of the mails of the United States,'" and declaring that the Wheeling and Belmont Bridge Company was authorized to maintain the bridge at its then-current site and elevation. Wheeling Bridge II, supra, at 429. After the bridge was destroyed in a storm, Pennsylvania sued to enjoin the bridge's reconstruction, arguing that the statute legalizing the bridge was unconstitutional because it effectively annulled the Court's decision in Wheeling Bridge 1. We rejected that argument, concluding that the decree in Wheeling Bridge I provided for ongoing relief by "directing the abatement of the obstruction" which enjoined the defendants' from any continuance or reconstruction of the obstruction. Because the intervening statute altered the underlying law such that the bridge was no longer an unlawful obstruction, we held that it was "quite plain the decree of the court cannot be enforced." Wheeling Bridge II, supra, at 431-432. The Court explained that had Wheeling Bridge I awarded money damages in an action at law, then that judgment would be final, and Congress' later action could not have affected plaintiff's right to those damages. See 18 How., at 431. But because the decree entered in Wheeling Bridge I provided for pro spec-346tive relief-a continuing injunction against the continuation or reconstruction of the bridge-the ongoing validity of the injunctive relief depended on "whether or not [the bridge] interferes with the right of navigation." 18 How., at 431. When Congress altered the underlying law such that the bridge was no longer an unlawful obstruction, the injunction against the maintenance of the bridge was not enforceable. See id., at 432.Applied here, the principles of Wheeling Bridge II demonstrate that the automatic stay of § 3626(e)(2) does not unconstitutionally "suspend" or reopen a judgment of an Article III court. Section 3626(e)(2) does not by itself "tell judges when, how, or what to do." 178 F. 3d, at 449 (Easterbrook, J., dissenting from denial of rehearing en banc). Instead, § 3626(e)(2) merely reflects the change implemented by § 3626(b), which does the "heavy lifting" in the statutory scheme by establishing new standards for prospective relief. See Berwanger v. Cottey, 178 F.3d 834, 839 (CA7 1999). Section 3626 prohibits the continuation of prospective relief that was "approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means to correct the violation," § 3626(b)(2), or in the absence of "findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of a Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation," § 3626(b)(3). Accordingly, if prospective relief under an existing decree had been granted or approved absent such findings, then that prospective relief must cease, see § 3626(b)(2), unless and until the court makes findings on the record that such relief remains necessary to correct an ongoing violation and is narrowly tailored, see § 3626(b)(3). The PLRA's automatic stay provision assists in the enforce-347ment of §§ 3626(b)(2) and (3) by requiring the court to stay any prospective relief that, due to the change in the underlying standard, is no longer enforceable, i. e., prospective relief that is not supported by the findings specified in §§ 3626(b)(2) and (3).By establishing new standards for the enforcement of prospective relief in § 3626(b), Congress has altered the relevant underlying law. The PLRA has restricted courts' authority to issue and enforce prospective relief concerning prison conditions, requiring that such relief be supported by findings and precisely tailored to what is needed to remedy the violation of a federal right. See Benjamin v. Jacobson, 172 F.3d 144, 163 (CA2 1999) (en bane); Imprisoned Citizens Union v. Ridge, 169 F.3d 178, 184-185 (CA3 1999); Tyler v. Murphy, 135 F.3d 594, 597 (CA8 1998); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 657 (CA1 1997). We note that the constitutionality of § 3626(b) is not challenged here; we assume, without deciding, that the new standards it pronounces are effective. As Plaut and Wheeling Bridge II instruct, when Congress changes the law underlying a judgment awarding prospective relief, that relief is no longer enforceable to the extent it is inconsistent with the new law. Although the remedial injunction here is a "final judgment" for purposes of appeal, it is not the "last word of the judicial department." Plaut, 514 U. S., at 227. The provision of prospective relief is subject to the continuing supervisory jurisdiction of the court, and therefore may be altered according to subsequent changes in the law. See Rufo v. Inmates of Suffolk County Jail, 502 U. S. 367, 388 (1992). Prospective relief must be "modified if, as it later turns out, one or more of the obligations placed upon the parties has become impermissible under federal law." Ibid.; see also Railway Employees v. Wright, 364 U. S. 642, 646-647 (1961) (a court has the authority to alter the prospective effect of an injunction to reflect a change in circumstances, whether of law or fact, that has occurred since the injunction was348entered); Lauf v. E. G. Skinner & Co., 303 U. S. 323, 329 (1938) (applying the Norris-LaGuardia Act's prohibition on a district court's entry of injunctive relief in the absence of findings).The entry of the automatic stay under § 3626(e)(2) helps to implement the change in the law caused by §§ 3626(b)(2) and (3). If the prospective relief under the existing decree is not supported by the findings required under § 3626(b)(2), and the court has not made the findings required by § 3626(b)(3), then prospective relief is no longer enforceable and must be stayed. The entry of the stay does not reopen or "suspend" the previous judgment, nor does it divest the court of authority to decide the merits of the termination motion. Rather, the stay merely reflects the changed legal circumstances-that prospective relief under the existing decree is no longer enforceable, and remains unenforceable unless and until the court makes the findings required by § 3626(b)(3).For the same reasons, § 3626(e)(2) does not violate the separation of powers principle articulated in United States v. Klein, 13 Wall. 128 (1872). In that case, Klein, the executor of the estate of a Confederate sympathizer, sought to recover the value of property seized by the United States during the Civil War, which by statute was recoverable if Klein could demonstrate that the decedent had not given aid or comfort to the rebellion. See id., at 131. In United States v. Padelford, 9 Wall. 531, 542-543 (1870), we held that a Presidential pardon satisfied the burden of proving that no such aid or comfort had been given. While Klein's case was pending, Congress enacted a statute providing that a pardon would instead be taken as proof that the pardoned individual had in fact aided the enemy, and if the claimant offered proof of a pardon the court must dismiss the case for lack of jurisdiction. Klein, 13 Wall., at 133-134. We concluded that the statute was unconstitutional because it purported to "pre-349scribe rules of decision to the Judicial Department of the government in cases pending before it." Id., at 146.Here, the prisoners argue that Congress has similarly prescribed a rule of decision because, for the period of time until the district court makes a final decision on the merits of the motion to terminate prospective relief, § 3626(e)(2) mandates a particular outcome: the termination of prospective relief. As we noted in Plaut, however, "[w]hatever the precise scope of Klein, ... later decisions have made clear that its prohibition does not take hold when Congress 'amendes] applicable law.''' 514 U. S., at 218 (quoting Robertson v. Seattle Audubon Soc., 503 U. S. 429, 441 (1992)). The prisoners concede this point but contend that, because § 3626(e)(2) does not itself amend the legal standard, Klein is still applicable. As we have explained, however, § 3626(e)(2) must be read not in isolation, but in the context of § 3626 as a whole. Section 3626(e)(2) operates in conjunction with the new standards for the continuation of prospective relief; if the new standards of § 3626(b)(2) are not met, then the stay "shall operate" unless and until the court makes the findings required by § 3626(b)(3). Rather than prescribing a rule of decision, § 3626(e)(2) simply imposes the consequences of the court's application of the new legal standard.Finally, the prisoners assert that, even if § 3626(e)(2) does not fall within the recognized prohibitions of Hayburn's Case, Plaut, or Klein, it still offends the principles of separation of powers because it places a deadline on judicial decisionmaking, thereby interfering with core judicial functions. Congress' imposition of a time limit in § 3626(e)(2), however, does not in itself offend the structural concerns underlying the Constitution's separation of powers. For example, if the PLRA granted courts 10 years to determine whether they could make the required findings, then certainly the PLRA would raise no apprehensions that Congress had encroached on the core function of the Judiciary to decide "cases and controversies properly before them." United350Opinion of SOUTER, J.States v. Raines, 362 U. S. 17, 20 (1960). Respondents' concern with the time limit, then, must be its relative brevity. But whether the time is so short that it deprives litigants of a meaningful opportunity to be heard is a due process question, an issue that is not before us. We leave open, therefore, the question whether this time limit, particularly in a complex case, may implicate due process concerns.In contrast to due process, which principally serves to protect the personal rights of litigants to a full and fair hearing, separation of powers principles are primarily addressed to the structural concerns of protecting the role of the independent Judiciary within the constitutional design. In this action, we have no occasion to decide whether there could be a time constraint on judicial action that was so severe that it implicated these structural separation of powers concerns. The PLRA does not deprive courts of their adjudicatory role, but merely provides a new legal standard for relief and encourages courts to apply that standard promptly.Through the PLRA, Congress clearly intended to make operation of the automatic stay mandatory, precluding courts from exercising their equitable powers to enjoin the stay. And we conclude that this provision does not violate separation of powers principles. Accordingly, the judgment of the Court of Appeals for the Seventh Circuit is reversed, and the action is remanded for further proceedings consistent with this opinion.It is so ordered

OCTOBER TERM, 1999SyllabusMILLER, SUPERINTENDENT, PENDLETON CORRECTIONAL FACILITY, ET AL. v. FRENCH ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUITNo. 99-224. Argued April 18, 2000-Decided June 19,2000*In 1975, prison inmates at Indiana's Pendleton Correctional Facility brought a class action, and the District Court issued an injunction, which remains in effect, to remedy violations of the Eighth Amendment regarding conditions of confinement. Congress subsequently enacted the Prison Litigation Reform Act of 1995 (PLRA), which, as relevant here, sets a standard for the entry and termination of prospective relief in civil actions challenging prison conditions. Specifically, 18 U. S. C. § 3626(b)(2) provides that a defendant or intervenor may move to terminate prospective relief under an existing injunction that does not meet that standard; § 3626(b)(3) provides that a court may not terminate such relief if it makes certain findings; and § 3626(e)(2) dictates that a motion to terminate such relief "shall operate as a stay" of that relief beginning 30 days after the motion is filed and ending when the court rules on the motion. In 1997, petitioner prison officials (hereinafter State) filed a motion to terminate the remedial order under § 3626(b). Respondent prisoners moved to enjoin the operation of the automatic stay, arguing that § 3626(e)(2) violates due process and separation of powers principles. The District Court enjoined the stay, the State appealed, and the United States intervened to defend § 3626(e)(2)'s constitutionality. In affirming, the Seventh Circuit concluded that § 3626(e)(2) precluded courts from exercising their equitable powers to enjoin the stay, but that the statute, so construed, was unconstitutional on separation of powers grounds.Held:1. Congress clearly intended to make operation of the PLRA's automatic stay provision mandatory, precluding courts from exercising their equitable power to enjoin the stay. The Government contends that (1) the Court should not interpret a statute as displacing courts' traditional equitable authority to preserve the status quo pending resolution on the merits absent the clearest command to the contrary and (2) reading § 3626(e)(2) to remove that equitable power would*Together with No. 99-582, United States v. French et al., also on certiorari to the same court.328Syllabusraise serious separation of powers questions, and therefore should be avoided under the canon of constitutional doubt. But where, as here, Congress has made its intent clear, this Court must give effect to that intent. Sinclair Refining Co. v. Atkinson, 370 U. S. 195, 215. Under § 3626(e)(2), a stay is automatic once a state defendant has filed a § 3626(b) motion, and the command that it "shall operate as a stay during" the specified time period indicates that it is mandatory throughout that period. The statute's plain meaning would be subverted were § 3626(e)(2) interpreted merely as a burden-shifting mechanism that does not prevent courts from suspending the stay. Viewing the automatic stay provision in the context of § 3626 as a whole confirms the Court's conclusion. Section 3626(e)(4) provides for an appeal from an order preventing the automatic stay's operation, not from the denial of a motion to enjoin a stay. This provision's one-way nature only makes sense if the stay is required to operate during a specific time period, such that any attempt by a district court to circumvent the mandatory stay is immediately reviewable. Mandamus is not a more appropriate remedy because it is granted only in the exercise of sound discretion. Given that curbing the courts' equitable discretion was a principal objective of the PLRA, it would have been odd for Congress to have left § 3626(e)(2)'s enforcement to that discretion. Section 3626(e)(3) also does not support the Government's view, for it only permits the stay's starting point to be delayed for up to 90 days; it does not affect the stay's operation once it begins. While construing § 3626(e)(2) to remove courts' equitable discretion raises constitutional questions, the canon of constitutional doubt permits the Court to avoid such questions only where the saving construction is not plainly contrary to Congress' intent. Pp. 336-341.2. Section 3626(e) does not violate separation of powers principles.The Constitution prohibits one branch of the Government from encroaching on the central prerogatives of another. Article III gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior Article III courts. Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 218-219. Respondents contend that § 3626(e)(2) violates the separation of powers principle by legislatively suspending a final judgment of an Article III court in violation of Plaut and Hayburn's Case, 2 Dall. 409. Unlike the situation in Hayburn's Case, § 3626(e)(2) does not involve direct review of a judicial decision by the Legislative or Executive Branch. Nor does it involve the reopening of a final judgment, as was addressed in Plaut. Plaut was careful to distinguish legislation that attempted to reopen the dismissal of a money damages suit from that altering the prospective effect of injunctions entered by Article III courts. Prospective relief under329Full Text of Opinion

1956_183

MR. JUSTICE HARLAN delivered the opinion of the Court.The three petitioners were convicted on Count 1 of an indictment brought under 18 U.S.C. § 371 [Footnote 1] for conspiracy to defraud the United States with reference to certain tax matters. Petitioner Halperin was also convicted on Counts 5, 6, and 7 of the same indictment, charging him with violating 18 U.S.C. § 1503 [Footnote 2] by endeavoring corruptly to influence certain witnesses before a grand jury which was investigating matters involved in the conspiracy charged in Count 1 of the indictment. Each petitioner was sentenced to five years' imprisonment and fined under Count 1. On each of Counts 5, 6, and 7, Halperin was sentenced to two years' imprisonment and a fine of $1,000, the prison sentences on these Counts and that on Count 1 to run concurrently. The Court of Appeals for the Second Circuit affirmed, with the late Judge Frank dissenting. 233 F.2d 556. We granted certiorari, 352 U. S. 866, in order to resolve important questions relating to (a) the statute of limitations in conspiracy Page 353 U. S. 394 prosecutions, as to which the decision below was alleged to be in conflict with this Court's decisions in Krulewitch v. United States, 336 U. S. 440, and Lutwak v. United States, 344 U. S. 604; and (b) the use on Halperin's cross-examination of his prior claim of the Fifth Amendment's privilege against self-incrimination before a grand jury. For the reasons discussed hereafter, we conclude that these convictions must be reversed, and the petitioners granted a new trial.On October 25, 1954, a grand jury returned an indictment, Count 1 of which charged petitioners and others with conspiring among themselves and with others"to defraud the United States in the exercise of its governmental functions of administering the internal revenue laws and of detecting and prosecuting violations of the internal revenue laws free from bribery, unlawful impairment, obstruction, improper influence, dishonesty, fraud and corruption. . . ."The indictment further charged that a part of the conspiracy was an agreement to conceal the acts of the conspirators. [Footnote 3] Overt acts within three years of the date of the indictment were charged. Counts 5, 6, and 7 of the indictment charged petitioners with violating 18 U.S.C. § 1503 in the manner already indicated.The proofs at the trial presented a sordid picture of a ring engaged in the business of "fixing" tax fraud cases Page 353 U. S. 395 by the use of bribes and improper influence. In general outline, the petitioners' scheme, which is set forth in more detail in the Court of Appeals' opinion, [Footnote 4] was as follows:In 1947 and 1948, two New York business firms, Patullo Modes and Gotham Beef Co., were under investigation by the Bureau of Internal Revenue for suspected fraudulent tax evasion. Through intermediaries, both firms established contact with Halperin, a New York attorney, and his associates in law practice. Halperin, in turn, conducted negotiations on behalf of these firms with Grunewald, an "influential" friend in Washington, and reported that Grunewald, for a large cash fee, would undertake to prevent criminal prosecution of the taxpayers. Grunewald then used his influence with Bolich, an official in the Bureau, to obtain "no prosecution" rulings [Footnote 5] in the two tax cases. These rulings were handed down in 1948 and 1949. Grunewald, through Halperin, was subsequently paid $60,000 by Gotham and $100,000 by Patullo. [Footnote 6]Subsequent activities of the conspirators were directed at concealing the irregularities in the disposition of the Patullo and Gotham cases. Bolich attempted to have the Bureau of Internal Revenue report on the Patullo case "doctored," and careful steps were taken to cover up the traces of the cash fees paid to Grunewald. In 1951, a congressional investigation was started by the King Committee of the House of Representatives; the conspirators felt themselves threatened, and took steps to hide their traces. Thus, Bolich caused the disappearance Page 353 U. S. 396 of certain records linking him to Grunewald, and the taxpayers were repeatedly warned to keep quiet. In 1952, the taxpayers and the conspirators were called before a Brooklyn grand jury. Halperin attempted to induce the taxpayers not to reveal the conspiracy, and Grunewald asked his secretary not to talk to the grand jury. These attempts at concealment were, however, in vain. The taxpayers and some of Halperin's associates revealed the entire scheme, and petitioners' indictment and conviction followed. [Footnote 7]The first question before us is whether the prosecution of these petitioners on Count 1 of the indictment was barred by the applicable three-year statute of limitations. [Footnote 8]The indictment in these cases was returned on October 25, 1954. It was therefore incumbent on the Government to prove that the conspiracy, as contemplated in the agreement as finally formulated, was still in existence on October 25, 1951, and that at least one overt act in furtherance of the conspiracy was performed after that date. [Footnote 9] For where substantiation of a conspiracy charge Page 353 U. S. 397 requires proof of an overt act, it must be shown both that the conspiracy still subsisted within the three years prior to the return of the indictment and that at least one overt act in furtherance of the conspiratorial agreement was performed within that period. Hence, in both of these aspects, the crucial question in determining whether the statute of limitations has run is the scope of the conspiratorial agreement, for it is that which determines both the duration of the conspiracy and whether the act relied on as an overt act may properly be regarded as in furtherance of the conspiracy. [Footnote 10]Petitioners, in contending that this prosecution was barred by limitations, state that the object of the conspiratorial agreement was a narrow one: to obtain "no prosecution" rulings in the two tax cases. When these rulings were obtained, in October, 1948, in the case of Gotham Beef, and in January, 1949, in the case of Patullo Modes, the criminal object of the conspiracy, petitioners say, was attained, and the conspirators' function ended. They argue, therefore, that the statute of limitations started running no later than January, 1949, and that the Page 353 U. S. 398 prosecution was therefore barred by 1954, when the indictment was returned. [Footnote 11]The Government counters with two principal contentions: first, it urges that, even if the main object of the conspiracy was to obtain decisions from the Bureau of Internal Revenue not to institute criminal tax prosecutions -- decisions obtained in 1948 and 1949 -- the indictment alleged, [Footnote 12] and the proofs showed, that the conspiracy also included as a subsidiary element an agreement to conceal the conspiracy to "fix" these tax cases, to the end that the conspirators would escape detection and punishment for their crime. Says the Government,"from the very nature of the conspiracy . . . there had to be, and was, from the outset a conscious, deliberate, agreement to conceal . . . each and every aspect of the conspiracy. . . ."It is then argued that, since the alleged conspiracy to conceal clearly continued long after the main criminal purpose of the conspiracy was accomplished, and since overt acts in furtherance of the agreement to conceal were performed well within the indictment period, the prosecution was timely.Second, and alternatively, the Government contends that the central aim of the conspiracy was to obtain Page 353 U. S. 399 for these taxpayers, not merely a "no prosecution" ruling, but absolute immunity from tax prosecution; in other words, that the objectives of the conspiracy were not attained until 1952, when the statute of limitations ran on the tax cases which these petitioners undertook to "fix." The argument, then, is that, since the conspiracy did not end until 1952, and since the 1949-1952 acts of concealment may be regarded as at least in part, in furtherance of the objective of the conspirators to immunize the taxpayers from tax prosecution, the indictment was timely.For reasons hereafter given, we hold that the Government's first contention must be rejected, and that, as to its second, which the Court of Appeals accepted, a new trial must be ordered.IWe think that the Government's first theory -- that an agreement to conceal a conspiracy can, on facts such as these, be deemed part of the conspiracy, and can extend its duration for the purposes of the statute of limitations -- has already been rejected by this Court in Krulewitch v. United States, 336 U. S. 440, and in Lutwak v. United States, 344 U. S. 604.In Krulewitch, the question before the Court was whether certain hearsay declarations could be introduced against one of the conspirators. The declarations in question were made by one named in the indictment as a co-conspirator after the main object of the conspiracy (transporting a woman to Florida for immoral purposes) had been accomplished. The Government argued that the conspiracy was not ended, however, since it included an implied subsidiary conspiracy to conceal the crime after its commission, and that the declarations were therefore still in furtherance of the conspiracy, and binding on Page 353 U. S. 400 co-conspirators. This Court rejected the Government's argument. It then stated:"Conspirators about to commit crimes always expressly or implicitly agree to collaborate with each other to conceal facts in order to prevent detection, conviction and punishment. Thus, the [Government's] argument is that, even after the central criminal objectives of a conspiracy have succeeded or failed, an implicit subsidiary phase of the conspiracy always survives, the phase which has concealment as its sole objective.""We cannot accept the Government's contention. . . . The rule contended for by the Government could have far-reaching results. For, under this rule, plausible arguments could generally be made in conspiracy cases that most out-of-court statements offered in evidence tended to shield co-conspirators. We are not persuaded to adopt the Government's implicit conspiracy theory, which, in all criminal conspiracy case,s would create automatically a further breach of the general rule against the admission of hearsay evidence. [Footnote 13]"Mr. Justice Jackson, concurring, added:"I suppose no person planning a crime would accept as a collaborator one on whom he thought he could not rely for help if he were caught, but I doubt that this fact warrants an inference of conspiracy for that purpose. . . .""It is difficult to see any logical limit to the 'implied conspiracy,' either as to duration or means. . . . On the theory that the law will impute to the confederates a continuing conspiracy to defeat justice, one conceivably could be bound by Page 353 U. S. 401 another's unauthorized and unknown commission of perjury, bribery of a juror or witness, [etc.]. . . .""Moreover, the assumption of an indefinitely continuing offense would result in an indeterminate extension of the statute of limitations. If the law implies an agreement to cooperate in defeating prosecution, it must imply that it continues as long as prosecution is a possibility, and prosecution is a possibility as long as the conspiracy to defeat it is implied to continue. [Footnote 14]"The Krulewitch case was reaffirmed in Lutwak v. United States, supra. Here again, the question was the admissibility of hearsay declarations of co-conspirators after the main purpose of the conspiracy had been accomplished; again, the Government attempted to extend the life of the conspiracy by an alleged subsidiary conspiracy to conceal. Although, in Lutwak, unlike in Krulewitch, the existence of a subsidiary conspiracy to conceal was charged in the indictment, the Court again rejected the Government's theory, holding that no such agreement to conceal had been proved or could be implied.The Government urges us to distinguish Krulewitch and Lutwak on the ground that, in those cases, the attempt was to imply a conspiracy to conceal from the mere fact that the main conspiracy was kept secret and that overt acts of concealment occurred. In contrast, says the Government, here, there was an actual agreement to conceal the conspirators which was charged and proved to be an express part of the initial conspiracy itself.We are unable to agree with the Government that, on this record, the cases before us can be distinguished on such a basis.The crucial teaching of Krulewitch and Lutwak is that, after the central criminal purposes of a conspiracy have Page 353 U. S. 402 been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret, and that the conspirators took care to cover up their crime in order to escape detection and punishment. As was there stated, allowing such a conspiracy to conceal to be inferred or implied from mere overt acts of concealment would result in a great widening of the scope of conspiracy prosecutions, since it would extend the life of a conspiracy indefinitely. Acts of covering up, even though done in the context of a mutually understood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators. For every conspiracy is, by its very nature, secret; a case can hardly be supposed where men concert together for crime and advertise their purpose to the world. And again, every conspiracy will inevitably be followed by actions taken to cover the conspirators' traces. Sanctioning the Government's theory would, for all practical purposes, wipe out the statute of limitations in conspiracy cases, as well as extend indefinitely the time within which hearsay declarations will bind co-conspirators.A reading of the record before us reveals that, on the facts of this case, the distinction between "actual" and "implied" conspiracies to conceal, as urged upon us by the Government, is no more than a verbal tour de force. True, in both Krulewitch and Lutwak, there is language in the opinions stressing the fact that only an implied agreement to conceal was relied on. [Footnote 15] Yet, when we look to the facts of the present cases, we see that the evidence from which the Government here asks us to deduce an "actual" agreement to conceal reveals nothing beyond that adduced in prior cases. What is this evidence? Page 353 U. S. 403 First, we have the fact that, from the beginning, the conspirators insisted on secrecy. Thus, the identities of Grunewald and Bolich were sedulously kept from the taxpayers; careful steps were taken to hide the conspiracy from an independent law firm which was also working on Patullo's tax problems; and the taxpayers were told to make sure that their books did not reflect the large cash payments made to Grunewald. Secondly, after the "no prosecution" rulings were obtained, we have facts showing that this secrecy was still maintained. Thus, a deliberate attempt was made to make the above-mentioned independent law firm believe that it was its (quite legitimate) efforts which produced the successful ruling. Finally, we have the fact that great efforts were made to conceal the conspiracy when the danger of exposure appeared. For example, Bolich got rid of certain records showing that he had used Grunewald's hotel suite in Washington; Patullo's accountant was persuaded to lie to the grand jury concerning a check made out to an associate of the conspirators; Grunewald attempted to persuade his secretary not to talk to the grand jury; and the taxpayers were repeatedly told by Halperin and his associates to keep quiet.We find in all this nothing more than what was involved in Krulewitch, that is, (1) a criminal conspiracy which is carried out in secrecy; (2) a continuation of the secrecy after the accomplishment of the crime; and (3) desperate attempts to cover up after the crime begins to come to light; and so we cannot agree that this case does not fall within the ban of those prior opinions.In effect, the differentiation pressed upon us by the Government is one of words rather than of substance. In Krulewitch it was urged that a continuing agreement to conceal should be implied out of the mere fact of conspiracy, and that acts of concealment should be taken as overt acts in furtherance of that implied agreement to Page 353 U. S. 404 conceal. Today the Government merely rearranges the argument. It states that the very same acts of concealment should be used as circumstantial evidence from which it can be inferred that there was from the beginning an "actual" agreement to conceal. As we see it, the two arguments amount to the same thing: a conspiracy to conceal is being implied from elements which will be present in virtually every conspiracy case, that is, secrecy plus overt acts of concealment. [Footnote 16] There is not a shred of direct evidence in this record to show anything like an express original agreement among the conspirators to continue to act in concert in order to cover up, for their own self-protection, traces of the crime after its commission.Prior cases in this Court have repeatedly warned that we will view with disfavor attempts to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions. [Footnote 17] The important considerations of policy behind such warnings need not be again detailed. See Jackson, J., concurring in Krulewitch v. United States, supra. It is these considerations of policy which govern our holding today. As this case was tried, we have before us a typical example of a situation where the Government, Page 353 U. S. 405 faced by the bar of the three-year statute, is attempting to open the very floodgates against which Krulewitch warned. We cannot accede to the proposition that the duration of a conspiracy can be indefinitely lengthened merely because the conspiracy is kept a secret, and merely because the conspirators take steps to bury their traces, in order to avoid detection and punishment after the central criminal purpose has been accomplished.By no means does this mean that acts of concealment can never have significance in furthering a criminal conspiracy. But a vital distinction must be made between acts of concealment done in furtherance of the main criminal objectives of the conspiracy and acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime. Thus, the Government argues in its brief that,"in the crime of kidnapping, the acts of conspirators in hiding while waiting for ransom would clearly by planned acts of concealment which would be in aid of the conspiracy to kidnap. So here, there can be no doubt that . . . all acts of concealment, whether to hide the identity of the conspirators or the action theretofore taken, were unquestionably in furtherance of the initial conspiracy. . . ."We do not think the analogy is valid. Kidnappers in hiding, waiting for ransom, commit acts of concealment in furtherance of the objectives of the conspiracy itself, just as repainting a stolen car would be in furtherance of a conspiracy to steal; in both cases, the successful accomplishment of the crime necessitates concealment. [Footnote 18] More closely analogous to our case would be conspiring kidnappers who cover their traces after the main conspiracy is finally ended -- i.e., after they have abandoned the kidnapped person and then take care to escape detection. In the latter case, as here, the acts of covering up can, by Page 353 U. S. 406 themselves, indicate nothing more than that the conspirators do not wish to be apprehended -- a concomitant, certainly, of every crime since Cain attempted to conceal the murder of Abel from the Lord.We hold, therefore, that, considering the main objective of the conspiracy to have been the obtaining of "no prosecution" rulings, prosecution was barred by the three-year statute of limitations, since no agreement to conceal the conspiracy after its accomplishment was shown or can be implied on the evidence before us to have been part of the conspiratorial agreement.IIIn view of how the case was submitted to the jury, we are also unable to accept the Government's second theory for avoiding the statute of limitations. This theory is (1) that the main objective of the conspiracy was not merely to obtain the initial "no prosecution" rulings in 1948 and 1949, but to obtain final immunity for Gotham and Patullo from criminal tax prosecution; (2) that such immunity was not obtained until 1952, when the statute of limitations had run on the tax evasion cases which the petitioners conspired to fix; [Footnote 19] (3) that the conspiracy therefore did not end until 1952, when this object was attained; (4) that the acts of concealment within the indictment period were overt acts in furtherance of this conspiracy; and (5) that the prosecution was thus timely. [Footnote 20] In short, the contention is that the agreement Page 353 U. S. 407 to conceal was to protect the taxpayers, rather than the conspirators, and, as such, was part of the main conspiracy, rather than a subsidiary appendage to it, as under the Government's first theory.The Court of Appeals accepted this theory of the case in affirming these convictions. It stated:"What the fixers had to sell was freedom from criminal prosecution for tax frauds. What the taxpayers bargained for was protection from a tax evasion prosecution.""* * * *" "This conspiracy is wholly unlike the ordinary illegal scheme, in that the jury may well have inferred that the official announcement that there would be no criminal prosecution of the taxpayers Page 353 U. S. 408 was merely the delivery of a substantial installment of what appellants agreed to deliver for the huge sums paid. The six-year Statute of Limitations . . . did not run in favor of the taxpayers until some time after the commission of the overt acts relied upon. In the interval, there was no assurance, other than continuing efforts by Grunewald, Bolich, and the others, that the whole nefarious business might not be brought to light, followed by the revocation of the decision not to criminally prosecute the taxpayers. This is a significant element in the proofs adduced by the government, as concealment of the conspiratorial acts was necessary not only to protect the conspirators from a conspiracy prosecution, but also to protect the taxpayers from a tax evasion prosecution."233 F.2d at 564-565.We find the legal theory of the Court of Appeals unexceptionable. If the central objective of the conspiracy was to protect the taxpayers from tax evasion prosecutions, on which the statute of limitations did not run until 1952, and if the 1948 and 1949 "no prosecution" rulings were but an "installment" of what the conspirators aimed to accomplish, then it is clear that the statute of limitations on the conspiracy did not begin to run until 1952, within three years of the indictment. [Footnote 21]Furthermore, we agree with the Court of Appeals that there is evidence in this record which would warrant submission of the case to the jury on the theory that the central object of the conspiracy was not attained in 1948 and 1949, but rather was to immunize the taxpayers completely from prosecution for tax evasion, and thus continued into 1952. The many overt acts of concealment occurring after 1949 could easily have been motivated at Page 353 U. S. 409 least in part by the purpose of the conspirators to deliver the remaining "installments" owing under the bargain -- to-wit, the safeguarding of the continued vitality of the "no prosecution" rulings. [Footnote 22] Furthermore, there is evidence showing that, from the beginning, the aim of the scheme was not restricted to the merely provisional and necessarily precarious "fixing" of the taxpayers' troubles which was achieved in 1948 and 1949. [Footnote 23] A jury might therefore Page 353 U. S. 410 fairly infer that it was part of the conspiratorial agreement that Grunewald and Bolich would make continuing efforts to safeguard the fruits of the partial victories won in 1948 and 1949 by trying to immunize the "no prosecution" rulings from change. In other words, we think a jury could infer from this evidence that the conspirators were prepared and had agreed to engage in further frauds and bribery if necessary in order to maintain in effect the tentative rulings obtained in 1948 and 1949. [Footnote 24] Page 353 U. S. 411If, therefore, the jury could have found that the aim of the conspiratorial agreement was to protect the taxpayers from tax prosecution, and that the overt acts occurring in the indictment period were in furtherance of that aim, we would affirm. We do not think, however, that we may safely assume that the jury so found, for we cannot agree with the Court of Appeals' holding that this theory of the case was adequately submitted to the jury.The trial judge's charge on the problem of the scope and duration of the conspiracy was as follows:"You will recall that the indictment states, among other things, that it was part of the conspiracy that the defendants and co-conspirators would make""continuing efforts to avoid detection and prosecution by any governmental body, executive, legislative, and judicial of tax frauds perpetrated by the defendants and co-conspirators through the use of any means whatsoever, including, but not limited to, . . . the influencing, intimidating, and impeding of prospective witnesses to refrain from disclosing the true facts.""In other words, the indictment alleges that the conspiracy comprehended within it a conspiracy to conceal the true facts from investigation, should investigation thereafter eventuate. This is an important element of the first count of the indictment which you must take into consideration, inasmuch as the Statute of Limitations of the charge of criminal conspiracy is three years, and, unless the conspiracy was continuing to a period within three years prior to the date of the indictment, October 25, 1954, and some overt act was performed within that three-year period, the crime, if any, alleged in the first count of the indictment would be outlawed. It is the contention of the government that the conspiracy did not end when the Page 353 U. S. 412 taxpayers were advised that there would be no criminal prosecution recommended by the Special Agent's office, but that an integral part of the entire conspiracy was an agreement to conceal the acts of the conspirators, and that, when thereafter an investigation was started by Congress and by the Grand Jury in the Eastern District of New York, the conspirators performed overt acts in pursuance of the original conspiracy designed to conceal the true facts; and that these acts occurred within three years prior to the date of the indictment. On this issue, it will be necessary for you to determine whether, beyond a reasonable doubt, you can conclude that the conspiracy was of the nature described in the first count of the indictment and comprehended an agreement to conceal, and whether some overt act took place in the period of three years prior to October 25, 1954, to carry out such purpose of the conspiracy.""* * * *" "To determine whether certain of the alleged overt acts were in furtherance of the object of the conspiracy, you have to determine the duration of the conspiracy. Did it end when the Pattullo [sic] Modes people and the Gotham Beef people received an assurance of no prosecution from the Bureau of Internal Revenue, or was a part of the conspiracy a continuing agreement to conceal the acts done pursuant thereto? In determining whether a part of the conspiracy was an agreement to continue to conceal the illegal acts after their consummation, you may not imply that such an agreement was part of the conspiracy. You would have to find from the evidence of the acts and declarations of the co-conspirators that there was an understanding or agreement to conceal the conspiracy. If you find that Page 353 U. S. 413 such an agreement or understanding to conceal the conspiracy was not a part of the conspiracy to defraud the government, but no more than an afterthought brought to the surface when the co-conspirators were confronted with the Grand Jury and King Committee investigations, then you must find, as a matter of law, that the defendants are not guilty of the crime charged in the first count of the indictment. If you find that the evidence shows beyond a reasonable doubt that, as a part of a conspiracy to defraud the government, there was an agreement or understanding to conceal the illegal acts, and that this too was an objective or part of the conspiracy, then you may find that such understanding was a part of the conspiracy. However, you must additionally determine whether this objective of the conspiracy was known to the defendants. If this objective was known originally by only part of the conspirators, but thereafter, during the existence of the conspiracy, the scope of the conspiracy was extended so as to include such an agreement to conceal, and if you find that some of the defendants did not know of the expansion to include the agreement to conceal, you may not impute to them the knowledge of their co-conspirators, and they could not be found guilty of the crime charged in Count One."We are constrained to agree with Judge Frank that this charge did not adequately enlighten the jury as to what they would have to find in order to conclude that the conspiracy was still alive after October 25, 1951. For the charge as given failed completely to distinguish between concealment in order to achieve the central purpose of the conspiracy (that is, the immunization of the taxpayers from tax evasion prosecution), and concealment intended solely to cover up an already executed crime -- Page 353 U. S. 414 (that is, the obtaining of the "no prosecution" rulings). The jury was never told that these overt acts of concealment could be taken as furthering the conspiracy only if the basic criminal aim of the conspiracy was not yet attained in 1949. On the charge as given, the jury might easily have concluded that the petitioners were guilty even though they found merely (1) that the central aim of the conspiracy was accomplished in 1949, and (2) that the subsequent acts of concealment were motivated exclusively by the conspirators' fear of a conspiracy prosecution. As far as we know, therefore, the present convictions were based on the impermissible theory discussed in the first part of this opinion -- namely, that a subordinate agreement to conceal the conspiracy continued after the central aim of the conspiracy had been accomplished.Furthermore, if the convictions were based on a finding that the overt acts of concealment were done with the single intention of protecting the conspirators' own interests, then it is irrelevant that these acts in fact happened to have the effect also of protecting the taxpayers against revocation of the "no prosecution" rulings. For overt acts in a prosecution such as this one are meaningful only if they are within the scope of the conspiratorial agreement. If that agreement did not, expressly or impliedly, contemplate that the conspiracy would continue in its efforts to protect the taxpayers in order to immunize them from tax prosecution, then the scope of the agreement cannot be broadened retroactively by the fact that the conspirators took steps after the conspiracy which incidentally had that effect.We thus find that the judge's charge left it open for the jury to convict even though they found that the acts of concealment were motivated purely by the purpose of the conspirators to cover up their already accomplished crime. And this, we think, was fatal error. For the facts in this record are equivocal. The jury might easily have Page 353 U. S. 415 concluded that the aim of the conspiracy was accomplished in 1949, and that the overt acts of concealment occurring after that date were done pursuant to the alleged conspiracy to hide the conspirators. As we have said, a conviction on such a theory could not be sustained. Under such circumstances, therefore, it was essential for the judge to charge clearly and unequivocally that, on these facts, the jury could not infer a continuing conspiracy to conceal the conspiracy, whether actual or implied. Further, it was incumbent on the judge to charge that, in order to convict, the jury would have to find that the central aim of the conspiracy was to immunize the taxpayers from tax prosecution, that this objective continued in being through 1951, and that the overt acts of concealment proved at trial were at least partly calculated to further this aim.Since, under the judge's charge, the convictions on Count 1 might have rested on an impermissible ground, we conclude that they cannot stand, and the petitioners must be given a new trial as to this Count.IIIWhat we have held as to the statute of limitations disposes of the conviction of the three petitioners under Count 1, but does not touch Halperin's conviction on Counts 5, 6, and 7 for violating 18 U.S.C. § 1503. [Footnote 25] As to those Counts, Halperin, who took the stand in his own defense at the trial, contends (a) that the Government was improperly allowed to cross-examine him as to the assertion of his Fifth Amendment privilege before a grand jury investigating this conspiracy, before which he had been called as a witness, [Footnote 26] and (b) that the evidence did Page 353 U. S. 416 not justify his conviction on these Counts. For the reasons given hereafter, we think that the first contention is well taken, but that the second one is untenable.In 1952, Halperin was subpoenaed before a Brooklyn grand jury which was investigating corruption in the Bureau of Internal Revenue. Testimony had already been received by the grand jury from the Patullo and Gotham taxpayers, which linked Halperin with the tax fixing ring. Halperin was asked a series of questions before the grand jury, including, among others, such questions as whether he knew Max Steinberg (an employee of the Bureau of Internal Revenue and a co-defendant in the charge under Count 1); whether he knew Grunewald; whether he had held and delivered escrow money paid to Grunewald by Gotham after the "no prosecution" ruling; and whether he had phoned Grunewald to arrange a meeting between one of his own associates and Bolich. Halperin declined to answer any of these questions on the ground that the answers would tend to incriminate him, and that the Fifth Amendment therefore entitled him not to answer. He repeatedly insisted before the grand jury that he was wholly innocent, and that he pleaded his Fifth Amendment privilege only on the advice of counsel that answers to these questions might furnish evidence which could be used against him, particularly when he was not represented by counsel and could not cross-examine witnesses before the grand jury.When the Government cross-examined Halperin at the trial, some of the questions which he had been asked before the grand jury were put to him. [Footnote 27] He answered Page 353 U. S. 417 each question in a way consistent with innocence. The Government was then allowed, over objection, to bring out in cross-examination that petitioner had pleaded his privilege before the grand jury as to these very questions. Later, in his charge to the jury, the trial judge informed them that petitioner's Fifth Amendment plea could be taken only as reflecting on his credibility, and that no inference as to guilt or innocence could be drawn therefrom as to Halperin or any co-defendant. [Footnote 28] Page 353 U. S. 418In thus allowing this cross-examination, the District Court relied on Raffel v. United States, 271 U. S. 494, where this Court held that a defendant's failure to take the stand at his first trial to deny testimony as to an incriminating admission could be used on cross-examination at the second trial, where he did take the stand, to impugn the credibility of his denial of the same admission. In upholding the District Court here, the Court of Appeals likewise relied on Raffel, and also on one of its own earlier decisions. [Footnote 29] Halperin attacks these rulings on these principal grounds: (a) Raffel is distinguishable from the present case; (b) if Raffel permitted this cross-examination, then the trial court erred in refusing to charge, as Halperin requested, that "an innocent man may honestly claim that his answers may tend to incriminate him"; (c) in any case, Raffel has impliedly been overruled by Johnson v. United States, 318 U. S. 189; and (d) compelling Halperin to testify before the grand jury, when he had already been marked as a putative defendant, violated his constitutional rights, so that, by analogy to the rule of Weeks v. United States, 232 U. S. 383, his claim of privilege could in no event be used against him. We find that, in the circumstances presented here, Raffel is not controlling, and that this cross-examination was not permissible.It is, of course, an elementary rule of evidence that prior statements may be used to impeach the credibility of a criminal defendant or an ordinary witness. But this can be done only if the judge is satisfied that the prior statements are in fact inconsistent. 3 Wigmore, Evidence, Page 353 U. S. 419 § 1040. And so the threshold question here is simply whether, in the circumstances of this case, the trial court erred in holding that Halperin's plea of the Fifth Amendment privilege before the grand jury involved such inconsistency with any of his trial testimony as to permit its use against him for impeachment purposes. [Footnote 30] We do not think that Raffel is properly to be read either as dispensing with the need for such preliminary scrutiny by the judge or as establishing as a matter of law that such a prior claim of privilege with reference to a question Page 353 U. S. 420 later answered at the trial is always to be deemed to be a prior inconsistent statement, irrespective of the circumstances under which the claim of privilege was made. The issue decided in Raffel came to the Court as a certified question in quite an abstract form, [Footnote 31] and was really centered on the question whether a defendant who takes the stand on a second trial can continue to take advantage of the privilege asserted at the first trial. This Court held, in effect, that, when a criminal defendant takes the stand, he waives his privilege completely and becomes subject to cross-examination impeaching his credibility just like any other witness:"His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will whenever cross-examination may be inconvenient or embarrassing."The Court, in Raffel, did not focus on the question whether the cross-examination there involved was in fact probative in impeaching the defendant's credibility. In other words, we may assume that, under Raffel, Halperin in this case was subject to cross-examination impeaching his credibility just like any other witness, and that his Fifth Amendment plea before the grand jury could not carry over any form of immunity when he voluntarily took the stand at the trial. This does not, however, solve the question whether, in the particular circumstances of this case, the cross-examination should have been excluded because its probative value on the issue of Halperin's credibility was so negligible as to be far outweighed by its possible impermissible impact on the jury. [Footnote 32] As we consider that, in the Page 353 U. S. 421 circumstances of the present case, the trial court, in the exercise of a sound discretion, should have refused to permit this line of cross-examination, we are not faced with the necessity of deciding whether Raffel has been stripped of vitality by the later Johnson case, supra, or of otherwise reexamining Raffel.We need not tarry long to reiterate our view that, as the two courts below held, no implication of guilt could be drawn from Halperin's invocation of his Fifth Amendment privilege before the grand jury. Recent reexamination of the history and meaning of the Fifth Amendment has emphasized anew that one of the basic functions of the privilege is to protect innocent men. Griswold, The Fifth Amendment Today, 9-30, 53-82."Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege."Ullmann v. United States, 350 U. S. 422, 350 U. S. 426. See also Slochower v. Board of Higher Education, 350 U. S. 551 at 350 U. S. 557-558, when, at the same Term, this Court said: "The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances."When we pass to the issue of credibility, we deem it evident that Halperin's claim of the Fifth Amendment privilege before the Brooklyn grand jury in response to questions which he answered at the trial was wholly consistent with innocence. Had he answered the questions put to him before the grand jury in the same way he subsequently answered them at trial, this nevertheless Page 353 U. S. 422 would have provided the Government with incriminating evidence from his own mouth. For example, had he stated to the grand jury that he knew Grunewald, the admission would have constituted a link between him and a criminal conspiracy, and this would be true even though he was entirely innocent and even though his friendship with Grunewald was above reproach. There was, therefore, as we see it, no inconsistency between Halperin's statement to the grand jury that answering the question whether he knew Grunewald would tend to furnish incriminating evidence against him and his subsequent testimony at trial that his acquaintance with Grunewald was free of criminal elements. And the same thing is also true, as we see it, as to his claim of privilege with respect to the other questions asked him before the grand jury and his answers to those same questions when they were put to him at the trial. These conclusions are fortified by a number of other considerations surrounding Halperin's claim of privilege:First, Halperin repeatedly insisted before the grand jury that he was innocent and that he pleaded his Fifth Amendment privilege solely on the advice of counsel.Second, the Fifth Amendment claim was made before a grand jury where Halperin was a compelled, and not a voluntary, witness; where he was not represented by counsel; where he could summon no witnesses; and where he had no opportunity to cross-examine witnesses testifying against him. These factors are crucial in weighing whether a plea of the privilege is inconsistent with later exculpatory testimony on the same questions, for the nature of the tribunal which subjects the witness to questioning bears heavily on what inferences can be drawn from a plea of the Fifth Amendment. See Griswold, supra, at 62. Innocent men are more likely to plead the privilege in secret proceedings, where they testify Page 353 U. S. 423 without advice of counsel and without opportunity for cross-examination, than in open court proceedings, where cross-examination and judicially supervised procedure provide safeguards for the establishing of the whole, as against the possibility of merely partial, truth.Finally, and most important, we cannot deem Halperin's plea of the Fifth Amendment to be inconsistent with his later testimony at the trial because of the nature of this particular grand jury proceeding. For, when Halperin was questioned before the grand jury, he was quite evidently already considered a potential defendant. The taxpayers whose cases had been "fixed" by the conspiratorial ring had already testified before the grand jury, and they gave there largely the same evidence as they did later at trial. The scheme was thus in essence already revealed when Halperin was called to testify. Under these circumstances, it was evident that Halperin was faced with the possibility of an early indictment, and it was quite natural for him to fear that he was being asked questions for the very purpose of providing evidence against himself. It was thus quite consistent with innocence for him to refuse to provide evidence which could be used by the Government in building its incriminating chain. For many innocent men who know that they are about to be indicted will refuse to help create a case against themselves under circumstances where lack of counsel's assistance and lack of opportunity for cross-examination will prevent them from bringing out the exculpatory circumstances in the context of which superficially incriminating acts occurred.We are not unmindful that the question whether a prior statement is sufficiently inconsistent to be allowed to go to the jury on the question of credibility is usually within the discretion of the trial judge. But where such evidentiary matter has grave constitutional overtones, as Page 353 U. S. 424 it does here, we feel justified in exercising this Court's supervisory control to pass on such a question. This is particularly so because, in this case, the dangers of impermissible use of this evidence far outweighed whatever advantage the Government might have derived from it if properly used. If the jury here followed the judge's instructions, namely, that the plea of the Fifth Amendment was relevant only to credibility, then the weight to be given this evidence was less than negligible, since, as we have outlined above, there was no true inconsistency involved; it could therefore hardly have affected the Government's case seriously to exclude the matter completely. On the other hand, the danger that the jury made impermissible use of the testimony by implicitly equating the plea of the Fifth Amendment with guilt is, in light of contemporary history, far from negligible. Weighing these factors, therefore, we feel that we should draw upon our supervisory power over the administration of federal criminal justice in order to rule on the matter. Cf. McNabb v. United States, 318 U. S. 332.We hold that, under the circumstances of this case, it was prejudicial error for the trial judge to permit cross-examination of petitioner on his plea of the Fifth Amendment privilege before the grand jury, and that Halperin must therefore be given a new trial on Counts 5, 6, and 7.Finally, we find no substance to Halperin's contention that he was, in effect, convicted for advising, as a lawyer, some of the witnesses before the grand jury that they had a right to plead their Fifth Amendment privilege. The evidence against Halperin under these Counts was quite sufficient to make out a case for submission to the jury.For the reasons given, we hold that the judgments below must be reversed, and the cases remanded to the District Court for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtGrunewald v. United States, 353 U.S. 391 (1957)Grunewald v. United StatesArgued April 3-4, 1957Decided May 27, 1957*353 U.S. 391Syllabus1. The three petitioners were convicted in a federal district court of violating 18 U.S.C. § 371 by conspiring to defraud the United States by preventing the criminal prosecution of certain taxpayers for fraudulent tax evasion. They had succeeded in obtaining "no prosecution" rulings from the Bureau of Internal Revenue in 1948 and 1949, and their subsequent activities were directed at concealing the irregularities through which these rulings were obtained. They were not indicted until October 25, 1954.Held: if the main objective of the conspiracy was to obtain the "no prosecution" rulings, petitioners' prosecution was barred by the three-year statute of limitations, since no agreement to conceal the conspiracy after its accomplishment was shown or can be implied on the record in this case to have been a part of the conspiracy. Pp. 353 U. S. 399-406.(a) After the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal the crime may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment. Krulewitch v. United States, 336 U. S. 440; Lutwak v. United States, 344 U. S. 604. Pp. 353 U. S. 399-402.(b) On the record in this case, nothing more is shown than (1) a criminal conspiracy carried out in secrecy, (2) a continuation of the secrecy after accomplishment of the crime, and (3) attempts to cover up after the crime began to come to light. Pp. 353 U. S. 402-404.(c) The duration of a conspiracy cannot be lengthened indefinitely for the purpose of the statute of limitations merely because the conspiracy is kept secret and the conspirators take steps to bury their traces in order to avoid detection and punishment after the central criminal purpose has been accomplished. Pp. 353 U. S. 399, 353 U. S. 404-405.2. The judge's charge to the jury was not adequate to justify petitioners' conviction on the theory that the main objective of the conspiracy was not merely to obtain the initial "no prosecution" Page 353 U. S. 392 rulings, but to obtain final immunity of the taxpayers from criminal prosecution by preventing their prosecution until after expiration of the six-year statute of limitations applicable to their tax-evasion offenses, which did not expire until less than three years before petitioners were indicted for conspiracy -- since the judge's charge left it open for the jury to convict even though it found merely (1) that the central aim of the conspiracy was accomplished in 1949, and (2) that the subsequent acts of concealment were motivated exclusively by petitioners' fear of a conspiracy prosecution. Pp. 353 U. S. 406-415.3. Petitioner Halperin was also convicted on other counts of the indictment charging him with violating 18 U.S.C. § 1503 by endeavoring corruptly to influence certain witnesses before a grand jury which was investigating matters involved in the conspiracy. At his trial, he answered certain questions in a manner consistent with innocence, and then, over his objection, was subjected to cross-examination which revealed that he had refused to answer the same questions, on grounds of possible self-incrimination, while he was appearing before a grand jury, under subpoena, without benefit of counsel, without the right to summon witnesses, and without any opportunity to cross-examine witnesses testifying against him.Held: in the circumstances of this case, it was prejudicial error for the trial judge to permit cross-examination of Halperin on his plea of the Fifth Amendment privilege before the grand jury. Raffel v. United States, 271 U. S. 494, distinguished. Pp. 353 U. S. 415-424.233 F.2d 556, reversed and remanded. Page 353 U. S. 393

1999_98-1464

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.The Driver's Privacy Protection Act of 1994 (DPPA or Act), 18 U. S. C. §§ 2721-2725 (1994 ed. and Supp. IV), regulates the disclosure of personal information contained in the records of state motor vehicle departments (DMVs). We hold that in enacting this statute Congress did not run afoul of the federalism principles enunciated in New York v. United States, 505 U. S. 144 (1992), and Printz v. United States, 521 U. S. 898 (1997).The DPPA regulates the disclosure and resale of personal information contained in the records of state DMVs. State DMV s require drivers and automobile owners to provide personal information, which may include a person's name, address, telephone number, vehicle description, Social Security number, medical information, and photograph, as a condition of obtaining a driver's license or registering an automobile. Congress found that many States, in turn, sell this personal information to individuals and businesses. See, e. g., 139 Congo Rec. 29466, 29468, 29469 (1993); 140 Congo Rec. 7929Foundation et al. by Erwin Chemerinsky; and for the Screen Actors Guild et al.Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Bill Pryor, Attorney General of Alabama, John J. Park, Jr., Assistant Attorney General, and Thomas H. Odom, and by the Attorneys General for their respective States as follows: Ken Salazar of Colorado, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Philip T. McLaughlin of New Hampshire, Michael F. Easley of North Carolina, W A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Jan Graham of Utah, Mark L. Earley of Virginia, and James E. Doyle of Wisconsin; for the Home School Legal Defense Association by Michael P. Farris; for the National Conference of State Legislatures et al. by Richard Ruda and Charles A. Rothfeld; for the Pacific Legal Foundation by Anne M. Hayes and Deborah J. La Fetra; for the Washington Legal Foundation by Daniel J. Popeo and R. Shawn Gunnarson; and for the Reporters Committee for Freedom of the Press et al. by Gregg P. Leslie.144(1994) (remarks of Rep. Goss). These sales generate significant revenues for the States. See Travis v. Reno, 163 F. 3d 1000, 1002 (CA7 1998) (noting that the Wisconsin Department of Transportation receives approximately $8 million each year from the sale of motor vehicle information).The DPPA establishes a regulatory scheme that restricts the States' ability to disclose a driver's personal information without the driver's consent. The DPPA generally prohibits any state DMV, or officer, employee, or contractor thereof, from "knowingly disclos[ing] or otherwise mak[ing] available to any person or entity personal information about any individual obtained by the department in connection with a motor vehicle record." 18 U. S. C. § 2721(a). The DPPA defines "personal information" as any information "that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information," but not including "information on vehicular accidents, driving violations, and driver's status." § 2725(3). A "motor vehicle record" is defined as "any record that pertains to a motor vehicle operator's permit, motor vehicle title, motor vehicle registration, or identification card issued by a department of motor vehicles." § 2725(1).The DPPA's ban on disclosure of personal information does not apply if drivers have consented to the release of their data. When we granted certiorari in this case, the DPPA provided that a DMV could obtain that consent either on a case-by-case basis or could imply consent if the State provided drivers with an opportunity to block disclosure of their personal information when they received or renewed their licenses and drivers did not avail themselves of that opportunity. §§ 2721(b)(11), (13), and (d). However, Public Law 106-69, 113 Stat. 986, which was signed into law on October 9, 1999, changed this "opt-out" alternative to an "opt-in" requirement. Under the amended DPPA, States may not imply consent from a driver's failure to take advantage of a145state-afforded opportunity to block disclosure, but must rather obtain a driver's affirmative consent to disclose the driver's personal information for use in surveys, marketing, solicitations, and other restricted purposes. See Pub. L. 106-69, 113 Stat. 986 §§ 350(c), (d), and (e), App. to Supp. Brief for Petitioners l(a), 2(a).The DPPA's prohibition of nonconsensual disclosures is also subject to a number of statutory exceptions. For example, the DPPA requires disclosure of personal information "for use in connection with matters of motor vehicle or driver safety and theft, motor vehicle emissions, motor vehicle product alterations, recalls, or advisories, performance monitoring of motor vehicles and dealers by motor vehicle manufacturers, and removal of non-owner records from the original owner records of motor vehicle manufacturers to carry out the purposes of titles I and IV of the Anti Car Theft Act of 1992, the Automobile Information Disclosure Act, the Clean Air Act, and chapters 301, 305, and 321-331 of title 49." 18 U. S. C. § 2721(b) (1994 ed., Supp. III) (citations omitted). The DPPA permits DMVs to disclose personal information from motor vehicle records for a number of purposes.11 Disclosure is permitted for use "by any government agency" or by "any private person or entity acting on behalf of a Federal, State or local agency in carrying out its functions." 18 U. S. C. § 2721(b)(I) (1994 ed. and Supp. III). The Act also allows States to divulge drivers' personal information for any state-authorized purpose relating to the operation of a motor vehicle or public safety, § 2721(b)(14); for use in connection with car safety, prevention of car theft, and promotion of driver safety, § 2721(b)(2); for use by a business to verify the accuracy of personal information submitted to that business and to prevent fraud or pursue legal remedies if the information that the individual submitted to the business is revealed to have been inaccurate, § 2721(b)(3); in connection with court, agency, or self-regulatory body proceedings, § 2721(b)(4); for research purposes so long as the information is not further disclosed or used to contact the individuals to whom the data pertain, § 2721(b)(5); for use by insurers in connection with claims investigations, antifraud activities, rating or underwriting, § 2721(b)(6); to notify vehicle owners that their vehicle has been146The DPPA's provisions do not apply solely to States. The Act also regulates the resale and redisclosure of drivers' personal information by private persons who have obtained that information from a state DM\T. 18 U. S. C. § 2721(c) (1994 ed. and Supp. III). In general, the Act allows private persons who have obtained drivers' personal information for one of the aforementioned permissible purposes to further disclose that information for anyone of those purposes. Ibid. If a State has obtained drivers' consent to disclose their personal information to private persons generally and a private person has obtained that information, the private person may redisclose the information for any purpose. Ibid. Additionally, a private actor who has obtained drivers' information from DMV records specifically for direct-marketing purposes may resell that information for other direct-marketing uses, but not otherwise. Ibid. Any person who rediscloses or resells personal information from DMV records must, for five years, maintain records identifying to whom the records were disclosed and the permitted purpose for the resale or redisclosure. Ibid.The DPPA establishes several penalties to be imposed on States and private actors that fail to comply with its requirements. The Act makes it unlawful for any "person" knowingly to obtain or disclose any record for a use that is not permitted under its provisions, or to make a false representation in order to obtain personal information from a motor vehicle record. §§ 2722(a) and (b). Any person who knowingly violates the DPPA may be subject to a criminal fine, §§ 2723(a), 2725(2). Additionally, any person who knowingly obtains, discloses, or uses information from a state motor vehicle record for a use other than those specifically permitted by the DPPA may be subject to liability in a civil actiontowed or impounded, § 2721(b)(7); for use by licensed private investigative agencies or security services for any purpose permitted by the DPPA, § 2721(b)(8); and in connection with private toll transportation services, § 2721(b)(10).147brought by the driver to whom the information pertains. § 2724. While the DPPA defines "person" to exclude States and state agencies, § 2725(2), a state agency that maintains a "policy or practice of substantial noncompliance" with the Act may be subject to a civil penalty imposed by the United States Attorney General of not more than $5,000 per day of substantial noncompliance. § 2723(b).South Carolina law conflicts with the DPPA's provisions.Under that law, the information contained in the State's DMV records is available to any person or entity that fills out a form listing the requester's name and address and stating that the information will not be used for telephone solicitation. S. C. Code Ann. §§ 56-3-510 to 56-3-540 (Supp. 1998). South Carolina's DMV retains a copy of all requests for information from the State's motor vehicle records, and it is required to release copies of all requests relating to a person upon that person's written petition. § 56-3-520. State law authorizes the South Carolina DMV to charge a fee for releasing motor vehicle information, and it requires the DMV to allow drivers to prohibit the use of their motor vehicle information for certain commercial activities. §§ 563-530, 56-3-540.Following the DPPA's enactment, South Carolina and its Attorney General, respondent Condon, filed suit in the United States District Court for the District of South Carolina, alleging that the DPPA violates the Tenth and Eleventh Amendments to the United States Constitution. The District Court concluded that the Act is incompatible with the principles of federalism inherent in the Constitution's division of power between the States and the Federal Government. The court accordingly granted summary judgment for the State and permanently enjoined the Act's enforcement against the State and its officers. See 972 F. Supp. 977, 979 (1997). The Court of Appeals for the Fourth Circuit affirmed, concluding that the Act violates constitutional prin-148ciples of federalism. See 155 F.3d 453 (1998). We granted certiorari, 526 U. S. 1111 (1999), and now reverse.We of course begin with the time-honored presumption that the DPPA is a "constitutional exercise of legislative power." Close v. Glenwood Cemetery, 107 U. S. 466, 475 (1883); see also INS v. Chadha, 462 U. S. 919, 944 (1983).The United States asserts that the DPPA is a proper exercise of Congress' authority to regulate interstate commerce under the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3.2 The United States bases its Commerce Clause argument on the fact that the personal, identifying information that the DPPA regulates is a "thin[g] in interstate commerce," and that the sale or release of that information in interstate commerce is therefore a proper subject of congressional regulation. United States v. Lopez, 514 U. S. 549, 558-559 (1995). We agree with the United States' contention. The motor vehicle information which the States have historically sold is used by insurers, manufacturers, direct marketers, and others engaged in interstate commerce to contact drivers with customized solicitations. The information is also used in the stream of interstate commerce by various public and private entities for matters related to interstate motoring. Because drivers' information is, in this context, an article of commerce, its sale or release into the interstate stream of business is sufficient to support congressional regulation. We therefore need not address the Government's alternative argument that the States' individual, intrastate activities in gathering, maintaining, and distributing drivers' personal2 In the lower courts, the United States also asserted that the DPPA was lawfully enacted pursuant to Congress' power under § 5 of the Fourteenth Amendment. See 155 F.3d 453, 463-465 (1998); 972 F. Supp. 977-979, 986-992 (1997). The District Court and Court of Appeals rejected that argument. See 155 F. 3d, at 465; 972 F. Supp., at 992. The United States' petition for certiorari and briefs to this Court do not address the § 5 issue and, at oral argument, the Solicitor General expressly disavowed any reliance on it.149information have a sufficiently substantial impact on interstate commerce to create a constitutional base for federal legislation.But the fact that drivers' personal information is, in the context of this case, an article in interstate commerce does not conclusively resolve the constitutionality of the DPPA. In New York and Printz, we held federal statutes invalid, not because Congress lacked legislative authority over the subject matter, but because those statutes violated the principles of federalism contained in the Tenth Amendment. In New York, Congress commandeered the state legislative process by requiring a state legislature to enact a particular kind of law. We said:"While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress' instructions. See Coyle v. Smith, 221 U. S. 559, 565 (1911)." 505 U. S., at 162.In Printz, we invalidated a provision of the Brady Act which commanded "state and local enforcement officers to conduct background checks on prospective handgun purchasers." 521 U. S., at 902. We said:"We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States' officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." Id., at 935.South Carolina contends that the DPPA violates the Tenth Amendment because it "thrusts upon the States all of the150day-to-day responsibility for administering its complex provisions," Brief for Respondents 10, and thereby makes "state officials the unwilling implementors of federal policy," id., at 11.3 South Carolina emphasizes that the DPPA requires the State's employees to learn and apply the Act's substantive restrictions, which are summarized above, and notes that these activities will consume the employees' time and thus the State's resources. South Carolina further notes that the DPPA's penalty provisions hang over the States as a potential punishment should they fail to comply with the Act.We agree with South Carolina's assertion that the DPPA's provisions will require time and effort on the part of state employees, but reject the State's argument that the DPPA violates the principles laid down in either New York or Printz. We think, instead, that this case is governed by our decision in South Carolina v. Baker, 485 U. S. 505 (1988). In Baker, we upheld a statute that prohibited States from issuing unregistered bonds because the law "regulate[d] state activities," rather than "seek[ing] to control or influence the manner in which States regulate private parties." Id., at 514-515. We further noted:"The [National Governor's Association] nonetheless contends that § 310 has commandeered the state legislative and administrative process because many state legislatures had to amend a substantial number of statutes in order to issue bonds in registered form and because state officials had to devote substantial effort to determine how best to implement a registered bond system. Such 'commandeering' is, however, an inevitable consequence of regulating a state activity. Any federal regulation demands compliance. That a State wishing to en-3 South Carolina has not asserted that it does not participate in the interstate market for personal information. Rather, South Carolina asks that the DPPA be invalidated in its entirety, even as it is applied to the States acting purely as commercial sellers.151gage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect." Ibid.Like the statute at issue in Baker, the DPPA does not require the States in their sovereign capacity to regulate their own citizens. The DPPA regulates the States as the owners of data bases. It does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals. We accordingly conclude that the DPPA is consistent with the constitutional principles enunciated in New York and Printz.As a final matter, we turn to South Carolina's argument that the DPPA is unconstitutional because it regulates the States exclusively. The essence of South Carolina's argument is that Congress may only regulate the States by means of "generally applicable" laws, or laws that apply to individuals as well as States. But we need not address the question whether general applicability is a constitutional requirement for federal regulation of the States, because the DPPA is generally applicable. The DPPA regulates the universe of entities that participate as suppliers to the market for motor vehicle information-the States as initial suppliers of the information in interstate commerce and private resellers or redisclosers of that information in commerce.The judgment of the Court of Appeals is thereforeReversed

OCTOBER TERM, 1999SyllabusRENO, ATTORNEY GENERAL, ET AL. v. CONDON, ATTORNEY GENERAL OF SOUTH CAROLINA, ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUITNo. 98-1464. Argued November 10, 1999-Decided January 12,2000State departments of motor vehicles (DMVs) require drivers and automobile owners to provide personal information, which may include a person's name, address, telephone number, vehicle description, Social Security number, medical information, and photograph, as a condition of obtaining a driver's license or registering an automobile. Finding that many States sell this information to individuals and businesses for significant revenues, Congress enacted the Driver's Privacy Protection Act of 1994 (DPPA), which establishes a regulatory scheme that restricts the States' ability to disclose a driver's personal information without the driver's consent. South Carolina law conflicts with the DPPA's provisions. Following the DPPA's enactment, South Carolina and its Attorney General filed this suit, alleging that the DPPA violates the Tenth and Eleventh Amendments to the United States Constitution. Concluding that the DPPA is incompatible with the principles of federalism inherent in the Constitution's division of power between the States and the Federal Government, the District Court granted summary judgment for the State and permanently enjoined the DPPA's enforcement against the State and its officers. The Fourth Circuit affirmed, concluding that the DPPA violates constitutional principles of federalism.Held: In enacting the DPPA, Congress did not run afoul of the federalism principles enunciated in New York v. United States, 505 U. S. 144, and Printz v. United States, 521 U. S. 898. The Federal Government correctly asserts that the DPPA is a proper exercise of Congress' authority to regulate interstate commerce under the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3. The motor vehicle information, which the States have historically sold, is used by insurers, manufacturers, direct marketers, and others engaged in interstate commerce to contact drivers with customized solicitations. The information is also used in the stream of interstate commerce by various public and private entities for matters related to interstate motoring. Because drivers' personal, identifying information is, in this context, an article of commerce, its sale or release into the interstate stream of business is sufficient to142Syllabussupport congressional regulation. See United States v. Lopez, 514 U. S. 549, 558-559. This does not conclusively resolve the DPPA's constitutionality because in New York and Printz the Court held that federal statutes were invalid, not because Congress lacked legislative authority over the subject matter, but because those statutes violated Tenth Amendment federalism principles. However, the DPPA does not violate those principles. This case is instead governed by South Carolina v. Baker, 485 U. S. 505, in which a statute prohibiting States from issuing unregistered bonds was upheld because it regulated state activities, rather than seeking to control or influence the manner in which States regulated private parties, id., at 514-515. Like that statute, the DPPA does not require the States in their sovereign capacity to regulate their own citizens; rather, it regulates the States as the owners of data bases. It does not require the South Carolina Legislature to enact any laws or regulations, as did the statute at issue in New York, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals, as did the law considered in Printz. Thus, the DPPA is consistent with the principles set forth in those cases. The Court need not address South Carolina's argument that the DPPA unconstitutionally regulates the States exclusively rather than by means of a generally applicable law. The DPPA is generally applicable because it regulates the universe of entities that participate as suppliers to the market for motor vehicle information-the States as initial suppliers of the information in interstate commerce and private resellers or redisclosers of that information in commerce. Pp. 148-151.155 F.3d 453, reversed.REHNQUIST, C. J., delivered the opinion for a unanimous Court.Solicitor General Waxman argued the cause for petitioners. With him on the briefs were Acting Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Paul R. Q. Wolfson, Mark B. Stern, and Alisa B. Klein.Charlie Condon, pro se, Attorney General of South Carolina, argued the cause for respondents. With him on the briefs were Treva Ashworth, Deputy Attorney General, and Kenneth P. Woodington, Senior Assistant Attorney General. **Briefs of amici curiae urging reversal were filed for the Electronic Privacy Information Center by Marc Rotenberg; for the Feminist Majority143Full Text of Opinion

1973_72-1057

MR. JUSTICE WHITE delivered the opinion of the Court.Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211-225, 18 U.S.C. §§ 2510-2520, prescribes the procedure for securing judicial authority to intercept wire communications in the investigation of specified serious offenses. The Court must here determine whether the Government sufficiently complied with the required application procedures in this case and whether, if not, evidence obtained as a result of such surveillance, under a court order based on the applications, is admissible at the criminal trial of those whose conversations were overheard. In particular, we must decide whether the provision of 18 U.S.C. Page 416 U. S. 508 § 2516(1) [Footnote 1] conferring power on that "Attorney General, or any Assistant Attorney General specially designated by the Attorney General" to "authorize an application to a Federal judge . . . for . . . an order authorizing or approving the interception of wire or oral communications" by federal investigative agencies seeking evidence of certain designated offenses permits the Attorney General's Executive Assistant to validly authorize a wiretap application to be made. We conclude that Congress did not intend the power to authorize wiretap applications to be exercised by any individuals other than the Attorney General or an Assistant Attorney General specially designated by him, and that primary or derivative evidence secured by wire interceptions pursuant to a court order issued in response to an application which was, in fact, not authorized by one of the statutorily designated officials must be suppressed under 18 U.S.C. § 2515 upon a motion properly made under 18 U.S.C. § 2518(10)(a). Accordingly, we affirm the judgment of the Court of Appeals.IIn the course of an initial investigation of suspected narcotics dealings on the part of respondent Giordano, it developed that Giordano himself sold narcotics to an undercover agent on October 5, 1970, and also told an informant to call a specified number when interested in transacting narcotics business. Based on this and other information, Francis Brocato, an Assistant United States Attorney, on October 16, 1970, submitted an application to the Chief Judge of the District of Maryland for an order permitting interception of the communications of Giordano, and of others as yet unknown, to or from Giordano's telephone. The application recited that Page 416 U. S. 509 Assistant Attorney General Will Wilson had been specially designated by the Attorney General to authorize the application. Attached to the application was a letter from Will Wilson to Brocato which stated that Wilson had reviewed Brocato's request for authorization and had made the necessary probable cause determinations, and which then purported to authorize Brocato to proceed with the application to the court. Also attached were various affidavits of law enforcement officers stating the reasons and justification for the proposed interception. Upon reviewing the application, the Chief Judge issued an order on the same day authorizing the interception"pursuant to application authorized by the Assistant Attorney General . . . Will Wilson, who has been specially designated in this proceeding by the Attorney General . . . to exercise the powers conferred on him by [18 U.S.C. § 2516]."On November 6, the same judge extended the intercept authority based on an application similar in form to the original, but also including information obtained from the interception already authorized and carried out and extending the authority to conversations of additional named individuals calling from or to Giordano's telephone. The interception was terminated on November 18, when Giordano and the other respondents were arrested and charged with violations of the narcotics laws.Suppression hearings followed pretrial notification by the Government, see § 2518(9), that it intended to use in evidence the results of the court-authorized interceptions of communications on Giordano's telephone. It developed at the hearings that the applications for interception authority presented to the District Court had inaccurately described the official who had authorized the applications, and that neither the initial application for the October 16 order nor the application for the Page 416 U. S. 510 November 6 extension order had been approved and authorized by Assistant Attorney General Will Wilson, as the applications had indicated. An affidavit of the Executive Assistant to the Attorney General divulged that he, the Executive Assistant, had reviewed the request for authorization to apply for the initial order, had concluded, from his "knowledge of the Attorney General's actions on previous cases, that he would approve the request if submitted to him," and, because the Attorney General was then on a trip away from Washington, D.C., and pursuant to authorization by the Attorney General for him to do so in such circumstances, had approved the request and caused the Attorney General's initials to be placed on a memorandum to Wilson instructing him to authorize Brocato to proceed. The affidavit also stated that the Attorney General himself had approved the November 6 request for extension, and had initialed the memorandum to Wilson designating him to authorize Brocato to make application for an extension order. It was also revealed that, although the applications recited that they had been authorized by Will Wilson, he had not himself reviewed Brocato's applications, and that his action was, at best, only formal authorization to Brocato. Furthermore, it became apparent that Wilson did not himself sign either of the letters bearing his name and accompanying the applications to the District Court. Instead, it appeared that someone in Wilson's office had affixed his signature after the signing of the letters had been authorized by a Deputy Assistant Attorney General in the Criminal Division who had, in turn, acted after the approval of the request for authorization had occurred in and had been received from the Office of the Attorney General.The District Court sustained the motions to suppress on the ground that the officer in the Justice Department Page 416 U. S. 511 approving each application had been misidentified in the applications and intercept orders, in violation of 18 U.S.C. §§ 2518(1)(a) and (4)(d), United States v. Focarile, 340 F. Supp. 1033, 1060 (Md.1972). On the Government's pretrial appeal under 18 U.S.C. § 3731, the Court of Appeals affirmed on the different ground that the authorization of the October 16 wiretap application by the Attorney General's Executive Assistant violated § 2516(1) of the statute and struck at "the very heart" of Title III, thereby requiring suppression of the wiretap and derivative evidence under §§ 2515 and 2518(10)(a)(i) and (ii). [Footnote 2] 469 F.2d 522, 531 (CA4 1972). We granted certiorari to resolve the conflict with decisions of the Court of Appeals for the Second Circuit [Footnote 3] Page 416 U. S. 512 with respect to the administration of the circumscribed authority Congress has granted in Title III for the use of wiretapping and wiretap evidence by law enforcement officers. 411 U.S. 905.IIThe United States contends that the authorization of intercept applications by the Attorney General's Executive Assistant was not inconsistent with the statute, and that, even if it were, there being no constitutional violation, the wiretap and derivative evidence should not have been ordered suppressed. We disagree with both contentions. [Footnote 4]Turning first to whether the statute permits the authorization of wiretap applications by the Attorney General's Executive Assistant, we begin with the language Page 416 U. S. 513 of § 2516(1), which provides that "[t]he Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize" an application for intercept authority. Plainly enough, the Executive Assistant is neither the Attorney General nor a specially designated Assistant Attorney General; but the United States argues that 28 U.S.C. § 509, [Footnote 5] deriving from the Reorganization Acts of 1949 and 1950, vests all functions of the Department of Justice, with some exceptions, in the Attorney General, and that Congress characteristically assigns newly created duties to the Attorney General, rather than to the Department of Justice, thus making essential the provision for delegation appearing in 28 U.S.C. § 510:"The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General."It is therefore argued that merely vesting a duty in the Attorney General, as it is said Congress did in § 2516(1), evinces no intention whatsoever to preclude delegation to other officers in the Department of Justice, including those on the Attorney General's own staff. Page 416 U. S. 514As a general proposition, the argument is unexceptionable. But here the matter of delegation is expressly addressed by § 2516, and the power of the Attorney General in this respect is specifically limited to delegating his authority to "any Assistant Attorney General specially designated by the Attorney General." Despite § 510, Congress does not always contemplate that the duties assigned to the Attorney General may be freely delegated. Under the Civil Rights Act of 1968, for instance, certain prosecutions are authorized only on the certification of the Attorney General or the Deputy Attorney General, "which function of certification may not be delegated." 18 U.S.C. § 245(a)(1). Equally precise language forbidding delegation was not employed in the legislation before us; but we think § 2516(1), fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate. This interpretation of the statute is also strongly supported by its purpose and legislative history.The purpose of the legislation, which was passed in 1968, was effectively to prohibit, on the pain of criminal and civil penalties, [Footnote 6] all interceptions of oral and wire communications except those specifically provided for in the Act, most notably those interceptions permitted to law enforcement officers when authorized by court order in connection with the investigation of the serious crimes listed in § 2516. Judicial wiretap orders must be preceded by applications containing prescribed information, § 2518(1). The judge must make certain findings before authorizing interceptions, including the existence of probable cause, § 2518(3). The orders themselves Page 416 U. S. 515 must particularize the extent and nature of the interceptions that they authorize, § 2518(4), and they expire within a specified time unless expressly extended by a judge based on further application by enforcement officials, § 2518(5). Judicial supervision of the progress of the interception is provided for, § 2518(6), as is official control of the custody of any recordings or tapes produced by the interceptions carried out pursuant to the order, § 2518(8). The Act also contains provisions specifying the circumstances and procedures under and by which aggrieved persons may seek and obtain orders for the suppression of intercepted wire or oral communication sought to be used in evidence by the Government. § 2518(10)(a).The Act is not as clear, in some respects, as it might be, but it is at once apparent that it not only limits the crimes for which intercept authority may be obtained, but also imposes important preconditions to obtaining any intercept authority at all. Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping, and evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications. These procedures were not to be routinely employed as the initial step in criminal investigation. Rather, the applicant must state and the court must find that normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. §§ 2518(1)(c) and (3)(c). The Act plainly calls for the prior, informed judgment of enforcement officers desiring court approval for intercept authority, and investigative personnel may not themselves ask a judge for authority to wiretap or eavesdrop. The mature judgment of a particular, Page 416 U. S. 516 responsible Department of Justice official is interposed as a critical precondition to any judicial order.The legislative history of the Act supports this view. As we have indicated, the Act was passed in 1968, but the provision of § 2516 requiring approval of applications by the Attorney General or a designated Assistant Attorney General dates from 1961, when a predecessor bill was being considered in the 87th Congress. Section 4(b) of that bill, S. 1495, which was also aimed at prohibiting all but designated official interception, initially provided that the "Attorney General, or any officer of the Department of Justice or any United States Attorney specially designated by the Attorney General, may authorize any investigative or law enforcement officer of the United States or any Federal agency to apply to a judge" for a wire interception order. Hearings on Wiretapping and Eavesdropping Legislation before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 87th Cong., 1st Sess., 5 (1961). Under that phraseology, the authority was centered in the Attorney General, but he could empower any officer of the Department of Justice, including United States Attorneys and the Executive Assistant, to authorize applications for intercept orders. At hearings on the bill, the Assistant Attorney General in charge of the Criminal Division stated the views of the Department of Justice, and the Department later officially proposed, that the authority to approve applications be substantially narrowed so that the Attorney General could delegate his authority only to an Assistant Attorney General. The testimony was:"This is the approach of S. 1495, with which the Department of Justice is in general agreement. The bill makes wiretapping a crime unless specifically authorized by a Federal judge in situations involving Page 416 U. S. 517 specified crimes. As I understand the bill, the application for a court order could be made only by the authority of the Attorney General or an officer of the Department of Justice or U.S. Attorney authorized by him. I suggest that the bill should confine the power to authorize an application for a court order to the Attorney General and ally assistant Attorney General whom he may designate. This would give greater assurance of a responsible executive determination of the need and justifiability of each interception."Id. at 356. The official proposal was that § 4(b) be changed to provide that the"Attorney General, or any Assistant Attorney General of the Department of Justice specially designated by the Attorney General, may authorize"a wiretap application. Id. at 372.S. 1495 was not enacted, but its provision limiting those who could approve applications for court orders survived, and was included in almost identical form in later legislative proposals, including the bill that became Title III of the Act now before us. [Footnote 7] In the course of Page 416 U. S. 518 testimony before a House Committee in 1967, the draftsman of the bill containing the basic outline of Title III engaged in the following colloquy:"The CHAIRMAN. . . . About the origin of the application, as I understand it, your bill provides it must be originated by the Attorney General or an Assistant Attorney General. Am I correct in that regard?""Professor BLAKEY. Yes, you are, Mr. Chairman.""The CHAIRMAN. The application must be made by the Attorney General or an Assistant Attorney General.""Professor BLAKEY. If I am not mistaken, the present procedure is before any wiretapping or electronic equipment is used now, it is generally approved at that level anyway, Mr. Chairman, and I would not want this equipment used without high level responsible officials passing on it. It may very well be that, in some number of cases there will not be time to get the Attorney General to approve it. I think we are going to have just [sic] to let those cases go, and that, if this equipment is to be used, it ought to be approved by the highest level in the Page 416 U. S. 519 Department of Justice. If we cannot make certain cases, that is going to have to be the price we will have to pay."Hearings on Anti-Crime Program before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 1379 (1967). [Footnote 8] Page 416 U. S. 520 As it turned out, the House Judiciary Committee did not report out a wiretap bill, but the House did pass H.R. 5037, entitled the "Law Enforcement and Criminal Justice Assistance Act of 1967," 113 Cong.Rec. 21861 (Aug. 8, 1967). The Senate amended that bill by adding to it Title III, which, in turn, essentially reflected the provisions of S. 917, which had been favorably reported by the Senate Judiciary Committee and which contained the Committee's own proposals with respect to the interception of oral and wire communications. The report on the bill stated:"Section 2516 of the new chapter authorizes the interception of particular wire or oral communication under court order pursuant to the authorization of the appropriate Federal, State, or local prosecuting officer.""Paragraph (1) . . . centralizes in a publicly responsible official subject to the political process the formulation of law enforcement policy on the use of electronic surveillance techniques. Centralization will avoid the possibility that divergent practices might develop. Should abuses occur, the lines of responsibility lead to an identifiable person. This provision, in itself, should go a long way toward guaranteeing that no abuses will happen."S.Rep. No. 1097, 90th Cong., 2d Sess., 96-97 (1968). This report is particularly significant in that it not only recognizes that the authority to apply for court orders is to be narrowly confined, but also declares that it is to be limited to those responsive to the political process, a category to which the Executive Assistant to the Attorney General obviously does not belong. [Footnote 9] Page 416 U. S. 521The Senate passed H.R. 5037, with the amendments tracking the provisions of S. 917, on May 23, 1968, as the Omnibus Crime Control and Safe Street Act of 1968, 114 Cong.Rec. 14798 and 14889. During the proceedings leading to the passage of the bill, emphasis was again placed on § 2516. That the Attorney General had the exclusive authority to approve or provide for the approval of wiretap applications was reiterated, and it was made clear that, as the bill was drafted, no United States Attorney would have or could be given the authority to apply for an intercept order without the advance approval of a senior officer in the Department. [Footnote 10] Page 416 U. S. 522 There was no congressional attempt, however, to extend that authority beyond the Attorney General or his Assistant Attorney General designate.The Government insists that, because § 2516(2) provides for a wider dispersal of authority among state officers to approve wiretap applications and leaves the matter of delegation up to state law, [Footnote 11] it is inappropriate Page 416 U. S. 523 to confine the authority so narrowly on the federal level. But it is apparent that Congress desired to centralize and limit this authority where it was feasible to do so, a desire easily implemented in the federal establishment by confining the authority to approve wiretap applications to the Attorney General or a designated Assistant Attorney General. To us, it appears wholly at odds with the scheme and history of the Act to construe § 2516(1) to permit the Attorney General to delegate his authority at will, whether it be to his Executive Assistant or to any officer in the Department other than an Assistant Attorney General. [Footnote 12] Page 416 U. S. 524IIIWe also reject the Government's contention that, even if the approval by the Attorney General's Executive Assistant of the October 16 application did not comply with the statutory requirements, the evidence obtained from the interceptions should not have been suppressed. The issue does not turn on the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights, but upon the provisions of Title III; and, in our view, the Court of Appeals correctly suppressed the challenged wiretap evidence.Section 2515 provides that no part of the contents of any wire or oral communication, and no evidence derived therefrom, may be received at certain proceedings, including trials, "if the disclosure of that information would be in violation of this chapter." What disclosures are forbidden, and are subject to motions to suppress, is, in turn, governed by § 2518(10)(a), which provides for suppression of evidence on the following grounds:"(i) the communication was unlawfully intercepted; "Page 416 U. S. 525"(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or""(iii) the interception was not made in conformity with the order of authorization or approval. [Footnote 13]"The Court of Appeals held that the communications the Government desired to offer in evidence had been "unlawfully intercepted" within the meaning of paragraph (i), because the October application had been approved by the Executive Assistant to the Attorney General, rather than by the Attorney General himself or a designated Assistant Attorney General. [Footnote 14] We have already determined that delegation to the Executive Assistant was indeed contrary to the statute; but the Government contends that approval by the wrong official is a statutory violation only and that paragraph (i) must be construed to reach constitutional, but not statutory, violations. [Footnote 15] The argument is a straightforward one based on the structure of § 2518(10)(a). On the one hand, the unlawful interceptions referred to in paragraph Page 416 U. S. 526 (i) must include some constitutional violations. Suppression for lack of probable cause, for example, is not provided for in so many words, and must fall within paragraph (i) unless, as is most unlikely, the statutory suppression procedures were not intended to reach constitutional violations at all. On the other hand paragraphs (ii) and (iii) plainly reach some purely statutory defaults without constitutional overtones, and these omissions cannot be deemed unlawful interceptions under paragraph (i), else there would have been no necessity for paragraphs (ii) and (iii) -- or, to put the matter another way, if unlawful interceptions under paragraph (i) include purely statutory issues, paragraphs (ii) and (iii) are drained of all meaning, and are surplusage. The conclusion of the argument is that, if nonconstitutional omissions reached by paragraphs (ii) and (iii) are not unlawful interceptions under paragraph (i), then there is no basis for holding that "unlawful interceptions" include any such statutory matters; the only purely statutory transgressions warranting suppression are those falling within paragraphs (ii) and (iii).The position gains some support from the fact that predecessor bills specified a fourth ground for suppression -- the lack of probable cause -- which was omitted in subsequent bills, apparently on the ground that it was not needed because official interceptions without probable cause would be unlawful within the meaning of paragraph (i). [Footnote 16] Arguably, the inference is that, since Page 416 U. S. 527 paragraphs (ii) and (iii) were retained, they must have been considered "necessary," that is, not covered by paragraph (i).The argument of the United States has substance, and it does appear that paragraphs (ii) and (iii) must be deemed to provide suppression for failure to observe some statutory requirements that would not render interceptions unlawful under paragraph (i). But it does not necessarily follow, and we cannot believe, that no statutory infringements whatsoever are also unlawful interceptions within the meaning of paragraph (i). The words "unlawfully intercepted" are themselves not limited to constitutional violations, and we think Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device. We have already determined that Congress intended not only to limit resort to wiretapping to certain crimes and situations where probable cause is present, but also to condition the use of intercept procedures upon the judgment of a senior official in the Department of Justice that the situation is one of those warranting their use. It is Page 416 U. S. 528 reasonable to believe that such a precondition would inevitably foreclose resort to wiretapping in various situations where investigative personnel would otherwise seek intercept authority from the court, and the court would very likely authorize its use. We are confident that the provision for pre-application approval was intended to play a central role in the statutory scheme, and that suppression must follow when it is shown that this statutory requirement has been ignored.The principal piece of legislative history relative to this question is S.Rep. No. 1097, 90th Cong., 2d Sess. (1968). The Government emphasizes that the report expressly states that § 2518(10)(a) "largely reflects existing law," and that there was no intention to "press the scope of the suppression role beyond present search and seizure law." Id. at 96. But the report also states that the section provides for suppression of evidence directly or indirectly obtained "in violation of the chapter," and that the provision"should serve to guarantee that the standards of the new chapter will sharply curtail the unlawful interception of wire and oral communications. [Footnote 17]"Moreover, it would not extend existing search Page 416 U. S. 529 and seizure law for Congress to provide for the suppression of evidence obtained in violation of explicit statutory prohibitions. Nardone v. United States, 302 U. S. 379 (1937); Nardone v. United States, 308 U. S. 338 (1939). [Footnote 18]IVEven though suppression of the wire communications intercepted under the October 16, 1970, order is required, the Government nevertheless contends that communications Page 416 U. S. 530 intercepted under the November 6 extension order are admissible, because they are not "evidence derived" from the contents of communications intercepted under the October 16 order within the meaning of §§ 2515 and 2518(10)(a). This position is untenable.Under § 2518, extension orders do not stand on the same footing as original authorizations, but are provided for separately."Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section."§ 2518(5). Under subsection (1)(e), applications for extensions must reveal previous applications and orders, and, under (1)(f), must contain "a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results." Based on the application, the court is required to make the same findings that are required in connection with the original order; that is, it must be found not only that there is probable cause in the traditional sense and that normal investigative procedures are unlikely to succeed, but also that there is probable cause for believing that particular communications concerning the offense will be obtained through the interception and for believing that the facilities or place from which the wire or oral communications are to be intercepted are used or will be used in connection with the commission of such offense or are under lease to the suspect or commonly used by him. § 2518(3).In its November 6 application, the Government sought authority to intercept the conversations of not only Giordano, who alone was expressly named in the initial application and order, but of nine other named persons who were alleged to be involved with Giordano in narcotics violations. Based on the attached affidavit, it was alleged that there was probable cause to believe that Page 416 U. S. 531 communications concerning the offense involved would be intercepted, particularly those between Giordano and the other named individuals, as well as those with others as yet unnamed, and that the telephone listed in the name of Giordano and whose monitoring was sought to be continued "has been used, and is being used and will be used, in connection with the commission of the offenses described." App. 62.In the affidavit supporting the application, the United States set out the previous applications and orders, incorporated by reference, and reasserted the "facts, details and conclusions contained in [the] affidavits" supporting the prior wiretap application, and set down in detail the relevant communications overheard under the existing order, as well as the physical movements of Giordano observed as the result of an around-the-clock surveillance that had been conducted by the authorities. App. 6581. The Government concluded, "[a]fter analyzing the intercepted conversations to and from [Giordano's telephone] and the results of BNDD surveillance," that nine listed individuals, some identified only by aliases, were associated with Giordano as suppliers or buyers in illegal narcotics trafficking, and that certain other persons were perhaps connected with the operation in an as yet undisclosed fashion. Id. at 79-80. It was also said that the full scope of Giordano's organization was not yet known. Id. at 80. Assertedly, Giordano was extremely guarded in his telephone conversations, "any specific narcotics conversations he makes are from pay phones" and "[c]onventional surveillance would be completely ineffective except as an adjunct to electronic interception." Id. at 81. The United States accordingly requested an extension of the interception order for no longer than a 15-day period.It is apparent from the foregoing that the communications intercepted pursuant to the extension order were Page 416 U. S. 532 evidence derived from the communications invalidly intercepted pursuant to the initial order. In the first place, the application sought and the order granted authority to intercept the communications of various named individuals not mentioned in the initial order. It is plain from the affidavit submitted that information about most of these persons was obtained through the initial illegal interceptions. It is equally plain that the telephone monitoring and accompanying surveillance were coordinated operations, necessarily intertwined. As the Government asserted, the surveillance and conventional investigative techniques "would be completely ineffective except as an adjunct to electronic interception." That the extension order and the interceptions under it were not, in fact, the product of the earlier electronic surveillance is incredible.Second, an extension order could validly be granted only upon an application complying with subsection (1) of § 2518. Subsection (1)(e) requires that the fact of prior applications and orders be revealed, and (1)(f) directs that the application set out either the results obtained under the prior order or an explanation for the absence of such results. Plainly, the function of § 2518(1)(f) is to permit the court realistically to appraise the probability that relevant conversations will be overheard in the future. If, during the initial period, no communications of the kind that had been anticipated had been overheard, the Act requires an adequate explanation for the failure before the necessary findings can be made as a predicate to an extension order. But here there were results, and they were set out in great detail. Had they been omitted, no extension order at all could have been granted; but with them, there were sufficient facts to warrant the trial court's finding, in accordance with § 2518(3)(b), of probable cause to believe that wire communications concerning the offenses involved "will Page 416 U. S. 533 be obtained through the interception," App. 83, as well as the finding complying with § 2518(3)(d) that there was probable cause to believe that Giordano's telephone"has been used, is being used, and will be, used in connection with the commission of the offenses described above, and is commonly used by Nicholas Giordano . . ."and nine other named persons. Ibid.It is urged in dissent that the information obtained from the illegal October 16 interception order may be ignored, and that the remaining evidence submitted in the extension application was sufficient to support the extension order. But whether or not the application, without the facts obtained from monitoring Giordano's telephone, would independently support original wiretap authority, the Act itself forbids extensions of prior authorizations without consideration of the results meanwhile obtained. Obviously, those results were presented, considered, and relied on in this case. Moreover, as previously noted, the Government itself had stated that the wire interception was an indispensable factor in its investigation, and that ordinary surveillance alone would have been insufficient. In our view, the results of the conversations overheard under the initial order were essential, both in fact and in law, to any extension of the intercept authority. Accordingly, communications intercepted under the extension order are derivative evidence and must be suppressed. [Footnote 19] The judgment of the Court of Appeals isAffirmed

U.S. Supreme CourtUnited States v. Giordano, 416 U.S. 505 (1974)United States v. GiordanoNo. 72-1057Argued January 8, 1974Decided May 13, 1974416 U.S. 505SyllabusTitle III of the Omnibus Crime Control and Safe Streets Act of 1968 provides in 18 U.S.C. § 2516(1) that"the Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge . . . for . . . an order authorizing or approving the interception of wire or oral communications"by federal investigative agencies seeking evidence of certain designated offenses; and further provides that the contents of intercepted communications, or evidence derived therefrom, may not be received in evidence at a trial if the disclosure of the information would violate Title III, 18 U.S.C. § 2515, and may be suppressed on the ground, inter alia, that the communication was "unlawfully intercepted," 18 U.S.C. § 2518(10)(a)(i). In this case, an application purportedly authorized by a specially designated Assistant Attorney General for an order permitting the wiretap of the telephone of respondent Giordano, a narcotics offense suspect, was submitted to the Chief Judge of the District Court, who then issued an interception order and later an extension order based on a similar application, but also including information obtained from the previously authorized interception and extending the authority to conversations of additional named individuals calling to or from Giordano's telephone. The interception was terminated when Giordano and the other respondents were arrested and charged with narcotics violations. During suppression hearings, it developed that the wiretap applications had not, in fact, been authorized by a specially designated Assistant Attorney General, but that the initial application was authorized by the Attorney General's Executive Assistant and the extension application had been approved by the Attorney General himself. The District Court sustained the motions to suppress on the ground that the Justice Department officer approving each application had been misidentified in the applications and intercept orders. The Court of Appeals affirmed, but on the ground that the initial authorization violated § 2516(1), thereby requiring suppression of the wiretap Page 416 U. S. 506 and derivative evidence under §§ 2515 and 2518(10)(a)(i), inter alia.Held:1. Congress did not intend the power to authorize wiretap applications to be exercised by any individuals other than the Attorney General or an Assistant Attorney General specially designated by him. Pp. 416 U. S. 512-523.(a) Notwithstanding 28 U.S.C. § 510, which authorizes the Attorney General to delegate any of his functions to any other officer, employee, or agency of the Justice Department, § 2516(1), fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate. Pp. 416 U. S. 512-514.(b) This interpretation of § 2516(1) is strongly supported by the purpose of the Act effectively to prohibit all interceptions of oral and wire communications except those specifically provided for, and by its legislative history. Pp. 416 U. S. 514-523.2. Primary or derivative evidence secured by wire interceptions pursuant to a court order issued in response to an application which was, in fact, not authorized by the Attorney General or a specially designated Assistant Attorney General must be suppressed under § 2515 upon a motion properly made under § 2518(10)(a), and hence the evidence obtained from the interceptions pursuant to the initial court order was properly suppressed. Pp. 416 U. S. 524-529.(a) Under § 2518(10)(a)(i) the words "unlawfully intercepted" are not limited to constitutional violations, but the statute was intended to require suppression where there is a failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device. Pp. 416 U. S. 524-528.(b) Since Congress intended to condition the use of intercept procedures upon the judgment of a senior Justice Department official that the situation is one of those warranting their use, thus precluding resort to wiretapping in various situations where investigative personnel would otherwise seek intercept authority from the court and the court would very likely authorize its use, it is evident that the provision for pre-application approval was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored. Pp. 416 U. S. 528-529. Page 416 U. S. 5073. Communications intercepted pursuant to the extension order were inadmissible, since they were evidence derived from the communications invalidly intercepted pursuant to the initial order. Pp. 416 U. S. 529-533.469 F.2d 522, affirmed.WHITE, J., delivered the opinion of the Court, in Parts I, II, and III of which all Members joined, and in Part IV of which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. DOUGLAS, J., filed a concurring opinion, in which BRENNAN, STEWART, and MARSHALL, JJ., joined, post, p. 416 U. S. 580. POWELL, J., filed an opinion concurring in Parts I, II, and III of the Court's opinion and dissenting from Part IV, in which BURGER, C.J., and BLACKMUN and REHNQUIST, JJ., joined, post, p. 416 U. S. 548.

1970_203

MR. JUSTICE HARLAN delivered the opinion of the Court.Petitioners McGautha and Crampton were convicted of murder in the first degree in the courts of California and Ohio respectively and sentenced to death pursuant to the statutes of those States. In each case, the decision whether the defendant should live or die was left to the absolute discretion of the jury. In McGautha's case, the jury, in accordance with California law, determined punishment in a separate proceeding following the trial on the issue of guilt. In Crampton's case, in accordance with Ohio law, the jury determined guilt and punishment after a single trial and in a single verdict. We granted certiorari in the McGautha case limited to the question whether petitioner's constitutional rights were infringed by permitting the jury to impose the death penalty without any governing standards. 398 U. S. 936 (1970). We granted certiorari in the Crampton case limited to that same question and to the further question whether the jury's imposition of the death sentence in the same proceeding and verdict as determined the issue of guilt was constitutionally permissible. Ibid. [Footnote 1] For the reasons Page 402 U. S. 186 that follow, we find no constitutional infirmity in the conviction of either petitioner, and we affirm in both cases.IIt will put the constitutional issues in clearer focus to begin by setting out the course which each trial took.A. McGautha's Guilt TrialMcGautha and his codefendant Wilkinson were charged with committing two armed robberies and a murder on February 14, 1967. [Footnote 2] In accordance with California procedure in capital cases, the trial was in two stages, a guilt stage and a punishment stage. [Footnote 3] At the guilt trial, the Page 402 U. S. 187 evidence tended to show that the defendants, armed with pistols, entered the market of Mrs. Pon Lock early in the afternoon of the murder. While Wilkinson kept a customer under guard, McGautha trained his gun on Mrs. Lock and took almost $300. Roughly three hours later, McGautha and Wilkinson held up another store, this one owned by Mrs. Benjamin Smetana and operated by her with her husband's assistance. While one defendant forcibly restrained a customer, the other struck Mrs. Smetana on the head. A shot was fired, fatally wounding Mr. Smetana. Wilkinson's former girlfriend testified that, shortly after the robbery, McGautha told her he had shot a man and showed her an empty cartridge in the cylinder of his gun. Other evidence at the guilt stage was inconclusive on the issue as to who fired the fatal shot. The jury found both defendants guilty of two counts of armed robbery and one count of first-degree murder as charged.B. McGautha's Penalty TrialAt the penalty trial, which took place on the following day but before the same jury, the State waived its opening, presented evidence of McGautha's prior felony convictions and sentences, see n 2, supra, and then rested. Wilkinson testified in his own behalf, relating his unhappy childhood in Mississippi as the son of a white Page 402 U. S. 188 father and a Negro mother, his honorable discharge from the Army on the score of his low intelligence, his regular attendance at church, and his good record for holding Jobs and supporting his mother and siblings up to the time he was shot in the back in an unprovoked assault by a street gang. Thereafter, he testified, he had difficulty obtaining or holding employment. About a year later, he fell in with McGautha and his companions, and when they found themselves short of funds, one of the group suggested that they "knock over somebody." This was the first time, Wilkinson said, that he had ever had any thoughts of committing a robbery. He admitted participating in the two robberies, but said he had not known that the stores were to be held up until McGautha drew his gun. He testified that it had been McGautha who struck Mrs. Smetana and shot Mr. Smetana.Wilkinson called several witnesses in his behalf. An undercover narcotics agent testified that he had seen the murder weapon in McGautha's possession and had seen McGautha demonstrating his quick draw. A minister with whom Wilkinson had boarded testified to Wilkinson's church attendance and good reputation. He also stated that, before trial Wilkinson had expressed his horror at what had happened and requested the minister's prayers on his behalf. A former fellow employee testified that Wilkinson had a good reputation and was honest and peaceable.McGautha also testified in his own behalf at the penalty hearing. He admitted that the murder weapon was his, but testified that he and Wilkinson had traded guns, and that it was Wilkinson who had struck Mrs. Smetana and killed her husband. McGautha testified that he came from a broken home, and that he had been wounded during World War II. He related his employment record, medical condition, and remorse. He admitted his criminal record, see n 2, supra, but testified that he had Page 402 U. S. 189 been a mere accomplice in two of those robberies, and that his prior conviction for murder had resulted from a slaying in self-defense. McGautha also admitted to a 1964 guilty plea to a charge of carrying a concealed weapon. He called no witnesses in his behalf.The jury was instructed in the following language:"in this part of the trial, the law does not forbid you from being influenced by pity for the defendants, and you may be governed by mere sentiment and sympathy for the defendants in arriving at a proper penalty in this case; however, the law does forbid you from being governed by mere conjecture, prejudice, public opinion or public feeling.""The defendants in this case have been found guilty of the offense of murder in the first degree, and it is now your duty to determine which of the penalties provided by law should be imposed on each defendant for that offense. Now, in arriving at this determination, you should consider all of the evidence received here in court presented by the People and defendants throughout the trial before this jury. You may also consider all of the evidence of the circumstances surrounding the crime, of each defendant's background and history, and of the facts in aggravation or mitigation of the penalty which have been received here in court. However, it is not essential to your decision that you find mitigating circumstances, on the one hand, or evidence in aggravation of the offense, on the other hand.""* * * *" ". . . Notwithstanding facts, if any, proved in mitigation or aggravation, in determining which punishment shall be inflicted, you are entirely free to act according to your own judgment, conscience, Page 402 U. S. 190 and absolute discretion. That verdict must express the individual opinion of each juror.""Now, beyond prescribing the two alternative penalties, the law itself provides no standard for the guidance of the jury in the selection of the penalty, but, rather, commits the whole matter of determining which of the two penalties shall be fixed to the judgment, conscience, and absolute discretion of the jury. In the determination of that matter, if the jury does agree, it must be unanimous as to which of the two penalties is imposed."App. 221-223. [Footnote 4] Page 402 U. S. 191Deliberations began in the early afternoon of August 24, 1967. In response to jury requests, the testimony of Mrs. Smetana and of three other witnesses was reread. Late in the afternoon of August 25, the jury returned verdicts fixing Wilkinson's punishment at life imprisonment and McGautha's punishment at death.The trial judge ordered a probation report on McGautha. Having received it, he overruled McGautha's motions for a new trial or for a modification of the penalty verdict, and pronounced the death sentence. [Footnote 5] McGautha's conviction was unanimously affirmed by the California Supreme Court. 70 Cal. 2d 770, 452 P.2d 650 (1969). His contention that standardless jury sentencing is unconstitutional was rejected on the authority of an earlier case, In re Anderson, 69 Cal. 2d 613, 447 P.2d 117 (1968), in which that court had divided narrowly on the issue.C. Crampton's TrialPetitioner Crampton was indicted for the murder of his wife, Wilma Jean, purposely and with premeditated malice. He pleaded not guilty and not guilty by reason of insanity. [Footnote 6] In accordance with the Ohio practice which Page 402 U. S. 192 he challenges, his guilt and punishment were determined in a single unitary proceeding.At trial, the State's case was as follows. The Cramptons had been married about four months at the time of the murder. Two months before the slaying, Crampton was allowed to leave the state mental hospital, where he was undergoing observation and treatment for alcoholism and drug addiction, to attend the funeral of his wife's father. On this occasion, he stole a knife from the house of his late father-in-law and ran away. He called the house several times and talked to his wife, greatly upsetting her. When she pleaded with him to return to the hospital and stated that she would have to call the police, he threatened to kill her if she did. Wilma and her brother nevertheless did notify the authorities, who picked Crampton up later the same evening. There was testimony of other threats Crampton had made on his wife's life, and it was revealed that, about 10 days before the murder, Mrs. Crampton's fear of her husband had caused her to request and receive police protection.The State's main witness to the facts surrounding the murder was one William Collins, a convicted felon who had first met Crampton when they, along with Crampton's brother Jack, were in the State Prison in Michigan. On January 14, 1967, three days before the murder, Collins and Crampton met at Jack Crampton's house in Pontiac, Michigan. During those three days, Collins and Crampton roamed the upper Midwest, committing a series of petty thefts and obtaining amphetamines, to which both were addicted, by theft and forged prescriptions.About nine o'clock on the evening of January 16, Crampton called his wife from St. Joseph, Michigan; after the call, he told Collins that he had to get back to Toledo, where his wife was, as fast as possible. They arrived in the early morning hours of January 17. After Page 402 U. S. 193 Crampton had stopped by his wife's home and sent Collins to the door with a purported message for her, the two went to the home of Crampton's mother-in law, which Crampton knew to be empty, to obtain some guns. They broke in and stole a rifle, ammunition, and some handguns, including the .45 automatic which was later identified as the murder weapon. Crampton kept this gun with him. He indicated to Collins that he believed his wife was having an affair. He fired the .45 in the air, with a remark to the effect that "a slug of that type would do quite a bit of damage," and said that, if he found his wife with the man he suspected, he would kill them both.That evening, Crampton called his wife's home and learned that she was present. He quickly drove out to the house, and told Collins,"Leave me off right here in front of the house, and you take the car and go back to the parking lot, and if I'm not there by six o'clock in the morning, you're on your own."About 11:20 that evening, Crampton was arrested for driving a stolen car. The murder weapon was found between the seats of the car.Mrs. Crampton's body was found the next morning. She had been shot in the face at close range while she was using the toilet. A .45-caliber shell casing was near the body. A jacket which Crampton had stolen a few days earlier was found in the living room. The coroner, who examined the body at 11:30 p.m. on January 18, testified that, in his opinion, death had occurred 24 hours earlier, plus or minus four hours.The defense called Crampton's mother as a witness. She testified about Crampton's background, including a serious concussion received at age nine, his good grades in junior high school, his stepfather's jealousy of him, his leaving home at age 14 to live with various relatives, his enlistment in the Navy at age 17, his marriage to a girl named Sandra, the birth of a son, a divorce, then a Page 402 U. S. 194 remarriage to Sandra and another divorce shortly after, and finally his marriage to Wilma. Mrs. Crampton also testified to Crampton's drug addiction, to his brushes with the law as a youth and as an adult, and to his undesirable discharge from the Navy.Crampton's attorney also introduced into evidence a series of hospital reports which contained further information on Crampton's background, including his criminal record, which was substantial, his court-martial conviction and undesirable discharge from the Navy, and the absence of any significant employment record. They also contained his claim that the shooting was accidental; that he had been gathering up guns around the house and had just removed the clip from an automatic when his wife asked to see it; that as he handed it to her it went off accidentally and killed her. All the reports concluded that Crampton was sane in both the legal and the medical senses. He was diagnosed as having a sociopathic personality disorder, along with alcohol and drug addiction. Crampton himself did not testify.The jury was instructed that:"If you find the defendant guilty of murder in the first degree, the punishment is death, unless you recommend mercy, in which event the punishment is imprisonment in the penitentiary during life."App. 70. The jury was given no other instructions specifically addressed to the decision whether to recommend mercy, but was told in connection with its verdict generally:"You must not be influenced by any consideration of sympathy or prejudice. It is your duty to carefully weigh the evidence, to decide all disputed questions of fact, to apply the instructions of the court to your findings and to render your verdict accordingly. In fulfilling your duty, your efforts must be to arrive at a just verdict. "Page 402 U. S. 195"Consider all the evidence and make your finding with intelligence and impartiality, and without bias, sympathy, or prejudice, so that the State of Ohio and the defendant will feel that their case was fairly and impartially tried."App. 71-72. The jury deliberated for over four hours, and returned a verdict of guilty, with no recommendation for mercy.Sentence was imposed about two weeks later. As Ohio law requires, Ohio Rev.Code Ann. § 2947.05 (1954), Crampton was informed of the verdict and asked whether he had anything to say as to why judgment should not be pronounced against him. He replied:"Please the Court, I don't believe I received a fair and impartial trial because the jury was prejudiced by my past record and the fact I had been a drug addict, and I just believe I didn't receive a fair and impartial trial. That's all I have to say."This statement was found insufficient to justify not pronouncing sentence upon him, and the court-imposed the death sentence. [Footnote 7] Crampton's appeals through the Ohio courts were unavailing. 18 Ohio St.2d 182, 248 N.E.2d 614 (1969).IIBefore proceeding to a consideration of the issues before us, it is important to recognize and underscore the nature of our responsibilities in judging them. Our function is not to impose on the States, ex cathedra, what might seem to us a better system for dealing with capital cases. Rather, it is to decide whether the Federal Constitution proscribes the present procedures of these two Page 402 U. S. 196 States in such cases. In assessing the validity of the conclusions reached in this opinion, that basic factor should be kept constantly in mind.IIIWe consider first McGautha's and Crampton's common claim: that the absence of standards to guide the jury's discretion on the punishment issue is constitutionally intolerable. To fit their arguments within a constitutional frame of reference, petitioners contend that to leave the jury completely at large to impose or withhold the death penalty as it sees fit is fundamentally lawless, and therefore violates the basic command of the Fourteenth Amendment that no State shall deprive a person of his life without due process of law. Despite the undeniable surface appeal of the proposition, we conclude that the courts below correctly rejected it. [Footnote 8] Page 402 U. S. 197AIn order to see petitioners' claim in perspective, it is useful to call to mind the salient features of the history of capital punishment for homicides under the common law in England, and subsequent statutory developments in this country. This history reveals continual efforts, uniformly unsuccessful, to identify before the fact those homicides for which the slayer should die. Thus, the laws of Alfred, echoing Exodus 21:12-13, provided:"Let the man who slayeth another willfully perish by death. Let him who slayeth another of necessity or unwillingly, or unwillfully, as God may have sent him into his hands, and for whom he has not lain in wait be worthy of his life and of lawful bot if he seek an asylum."Quoted in 3 J. Stephen, History of the Criminal Law of England 24 (1883). In the 13th century, Bracton set it down that a man was responsible for all homicides except those which happened by pure accident or inevitable necessity, although he did not explain the consequences of such responsibility. Id. at 35. The Statute of Gloucester, 6 Edw. 1, c. 9 (1278), provided that, in cases of self-defense or misadventure, the jury should neither convict nor acquit, but should find the fact specially, so that the King could decide whether to pardon the accused. It appears that, in time, such pardons -- which may not have prevented forfeiture of goods -- came to issue as of course. 3 Stephen, supra, at 36-42.During all this time, there was no clear distinction in terminology or consequences among the various kinds of criminal homicide. All were prima facie capital, but all were subject to the benefit of clergy, which, after 1350, came to be available to almost any man who could read. Although originally those entitled to benefit of clergy were simply delivered to the bishop for ecclesiastical proceedings, with the possibility of degradation from orders, Page 402 U. S. 198 incarceration, and corporal punishment for those found guilty, during the 15th and 16th centuries, the maximum penalty for clergyable offenses became branding on the thumb, imprisonment for not more than one year, and forfeiture of goods. 1 Stephen, supra, at 459-464. By the statutes of 23 Hen. 8, c. 1, §§ 3, 4 (1531), and 1 Edw. 6, c. 12, § 10 (1547), benefit of clergy was taken away in all cases of "murder of malice prepensed." 1 Stephen, supra, at 461 465; 3 id. at 44. During the next century and a half, however, "malice prepense" or "malice aforethought" came to be divorced from actual ill will and inferred without more from the act of killing. Correspondingly, manslaughter, which was initially restricted to cases of "chance medley," came to include homicides where the existence of adequate provocation rebutted the inference of malice. 3 id. at 46-73.The growth of the law continued in this country, where there was rebellion against the common law rule imposing a mandatory death sentence on all convicted murderers. Thus, in 1794, Pennsylvania attempted to reduce the rigors of the law by abolishing capital punishment except for "murder of the first degree," defined to include all "willful, deliberate and premeditated" killings, for which the death penalty remained mandatory. Pa.Laws 1794, c. 1777. This reform was soon copied by Virginia, and thereafter by many other States.This new legislative criterion for isolating crimes appropriately punishable by death soon proved as unsuccessful as the concept of "malice aforethought." Within a year, the distinction between the degrees of murder was practically obliterated in Pennsylvania. See Keedy, History of the Pennsylvania Statute Creating Degrees of Murder, 97 U.Pa.L.Rev. 759, 773-777 (1949). Other States had similar experiences. Wechsler & Michael, A Rationale of the Law of Homicide: I, 37 Col.L.Rev. 701, Page 402 U. S. 199 707-709 (1937). The result was characterized in this way by Chief Judge Cardozo, as he then was:"What we have is merely a privilege offered to the jury to find the lesser degree when the suddenness of the intent, the vehemence of the passion, seems to call irresistibly for the exercise of mercy. I have no objection to giving them this dispensing power, but it should be given to them directly, and not in a mystifying cloud of words."What Medicine Can Do For Law, in Law and Literature 70, 100 (1931). [Footnote 9]At the same time, jurors on occasion took the law into their own hands in cases which were "willful, deliberate, and premeditated" in any view of that phrase, but which nevertheless were clearly inappropriate for the death penalty. In such cases, they simply refused to convict of the capital offense. See Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, �� 27-29 (1953); Andres v. United States, 333 U. S. 740, 333 U. S. 753 (1948) (Frankfurter, J., concurring); cf. H. Kalven & H. Zeisel, The American Jury 306-312 (1966).In order to meet the problem of jury nullification, legislatures did not try, as before, to refine further the definition of capital homicides. Instead they adopted the method of forthrightly granting juries the discretion which they had been exercising in fact. See Knowlton, Problems of Jury Discretion in Capital Cases, 101 U.Pa.L.Rev. 1099, 1102 and n. 18 (1953); Note, The Two-Trial System in Capital Cases, 39 N.Y.U.L.Rev. 50, Page 402 U. S. 200 52 (1964). Tennessee was the first State to give juries sentencing discretion in capital cases, [Footnote 10] Tenn.Laws 18371838, c. 29, but other States followed suit, as did the Federal Government in 1897. [Footnote 11] Act of Jan. 15, 1897, c. 29, § 1, 29 Stat. 487. Shortly thereafter, in Winston v. United States, 172 U. S. 303 (1899), this Court dealt with the federal statute for the first time. [Footnote 12] The Court reversed a murder conviction in which the trial judge instructed the jury that it should not return a recommendation of mercy unless it found the existence of mitigating circumstances. The Court found this instruction to interfere with the scheme of the Act to commit the whole question of capital punishment "to the judgment and the consciences of the jury." Id. at 172 U. S. 313."How far considerations of age, sex, ignorance, illness or intoxication, of human passion or weakness, of sympathy or clemency, or the irrevocableness Page 402 U. S. 201 of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other consideration whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished, is committed by the act of Congress to the sound discretion of the jury, and of the jury alone."Ibid.This Court subsequently had occasion to pass on the correctness of instructions to the jury with respect to recommendations of mercy in Andres v. United States, 333 U. S. 740 (1948). The Court approved, as consistent with the governing statute, an instruction that:"This power [to recommend mercy] is conferred solely upon you, and, in this connection, the Court cannot extend or prescribe to you any definite rule defining the exercise of this power, but commits the entire matter of its exercise to your judgment."Id. at 333 U. S. 743 n. 4. The case was reversed, however, on the ground that other instructions on the power to recommend mercy might have been interpreted by the jury as requiring them to return an unqualified verdict of guilty unless they unanimously agreed that mercy should be extended. The Court determined that the proper construction was to require a unanimous decision to withhold mercy as well, on the ground, among others, that the latter construction was "more consonant with the general humanitarian purpose of the statute." Id. at 333 U. S. 749. The only other significant discussion of standardless jury sentencing in capital cases in our decisions is found in Witherspoon v. Illinois, 391 U. S. 510 (1968). In reaching its conclusion that persons with conscientious scruples against the death penalty could not be automatically excluded from sentencing juries in capital cases, the Court relied heavily Page 402 U. S. 202 on the fact that such juries "do little more -- and must do nothing less -- than express the conscience of the community on the ultimate question of life or death." Id. at 391 U. S. 519 (footnote omitted). The Court noted that"one of the most important functions any jury can perform in making such a selection is to maintain a link between contemporary community values and the penal system -- a link without which the determination of punishment could hardly reflect 'the evolving standards of decency that mark the progress of a maturing society.'"Id. at 391 U. S. 519 n. 15. The inner quotation is from the opinion of Mr. Chief Justice Warren for four members of the Court in Trop v. Dulles, 356 U. S. 86, 356 U. S. 101 (1958).In recent years, academic and professional sources have suggested that jury sentencing discretion should be controlled by standards of some sort. The American Law Institute first published such a recommendation in 1959. [Footnote 13] Several States have enacted new criminal codes Page 402 U. S. 203 in the intervening 12 years, some adopting features of the Model Penal Code. [Footnote 14] Other States have modified their laws with respect to murder and the death penalty in other ways. [Footnote 15] None of these States have followed the Model Penal Code and adopted statutory criteria for imposition of the death penalty. In recent years, challenges to standardless jury sentencing have been presented to many state and federal appellate courts. No court has held the challenge good. See n. 8 supra. As petitioners recognize, it requires a strong showing to upset this settled practice of the Nation on constitutional grounds. See Walz v. Tax Commission, 397 U. S. 664, 397 U. S. 678 (1970); Jackman v. Rosenbaum Co., 260 U. S. 22, 260 U. S. 31 (1922); cf. Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325 (1937).BPetitioners seek to avoid the impact of this history by the observation that jury sentencing discretion in capital cases was introduced as a mechanism for dispensing mercy -- a means for dealing with the rare case in which the death penalty was thought to be unjustified. Now, they assert, the death penalty is imposed on far fewer than half the defendants found guilty of capital crimes. The state and federal legislatures which provide for jury discretion in capital sentencing have, it is said, implicitly Page 402 U. S. 204 determined that some -- indeed, the greater portion -- of those guilty of capital crimes should be permitted to live. But having made that determination, petitioners argue, they have stopped short -- the legislatures have not only failed to provide a rational basis for distinguishing the one group from the other, cf. Skinner v. Oklahoma, 316 U. S. 535 (1942), but they have failed even to suggest any basis at all. Whatever the merits of providing such a mechanism to take account of the unforeseeable case calling for mercy, as was the original purpose, petitioners contend the mechanism is constitutionally intolerable as a means of selecting the extraordinary cases calling for the death penalty, which is its present-day function.In our view, such force as this argument has derives largely from its generality. Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.Thus, the British Home Office, which, before the recent abolition of capital punishment in that country, had the responsibility for selecting the cases from England and Wales which should receive the benefit of the Royal Prerogative of Mercy, observed:"The difficulty of defining by any statutory provision the types of murder which ought or ought not to be punished by death may be illustrated by reference to the many diverse considerations to which the Home Secretary has regard in deciding whether to recommend clemency. No simple formula can take account of the innumerable degrees of culpability, Page 402 U. S. 205 and no formula which fails to do so can claim to be just or satisfy public opinion."1-2 Royal Commission on Capital Punishment, Minutes of Evidence 13 (1949). The Royal Commission accepted this view, and although it recommended a change in British practice to provide for discretionary power in the jury to find "extenuating circumstances," that term was to be left undefined; "[t]he decision of the jury would be within their unfettered discretion and in no sense governed by the principles of law." Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, � 553(b). The Commission went on to say, in substantial confirmation of the views of the Home Office:"No formula is possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder. Discretionary judgment on the facts of each case is the only way in which they can be equitably distinguished. This conclusion is borne out by American experience: there the experiment of degrees of murder, introduced long ago, has had to be supplemented by giving to the courts a discretion that in effect supersedes it."Id. at � 595The draftsmen of the Model Penal Code expressly agreed with the conclusion of the Royal Commission that"the factors which determine whether the sentence of death is the appropriate penalty in particular cases are too complex to be compressed within the limits of a simple formula. . . ."Report � 498, quoted in Model Penal Code, § 201.6, Comment 3, p. 71 (Tent.Draft No. 9, 1959). The draftsmen did think, however,"that it is within the realm of possibility to point to the main circumstances of aggravation and of mitigation that should be weighed and weighed against each other when they are Page 402 U. S. 206 presented in a concrete case."Ibid. The circumstances the draftsmen selected, set out in the 402 U.S. 183app|>Appendix to this opinion, were not intended to be exclusive. The Code provides simply that the sentencing authority should "take into account the aggravating and mitigating circumstances enumerated . . . and any other facts that it deems relevant," and that the court should so instruct when the issue was submitted to the jury. Id. at § 210.6(2) (Proposed Official Draft, 1962). [Footnote 16] The Final Report of the National Commission on Reform of Federal Criminal Laws (171) recommended entire abolition of the death penalty in federal cases. In a provisional chapter, prepared for the contingency that Congress might decide to retain the death penalty, the Report contains a set of criteria virtually identical with the aggravating and mitigating circumstances listed by the Model Penal Code. With respect to the use to be made of the criteria, the Report provides that:"[i]n deciding whether a sentence of death should be imposed, the court and the jury, if any, may consider the mitigating and aggravating circumstances set forth in the subsections below."Id. at provisional § 3604(1) (emphasis added). Page 402 U. S. 207It is apparent that such criteria do not purport to provide more than the most minimal control over the sentencing authority's exercise of discretion. They do not purport to give an exhaustive list of the relevant considerations or the way in which they may be affected by the presence or absence of other circumstances. They do not even undertake to exclude constitutionally impermissible considerations. [Footnote 17] And, of course, they provide no protection against the jury determined to decide on whimsy or caprice. In short, they do no more than suggest some subjects for the jury to consider during its deliberations, and they bear witness to the intractable nature of the problem of "standards" which the history of capital punishment has from the beginning reflected. Thus, they indeed caution against this Court's undertaking to establish such standards itself, or to pronounce at large that standards in this realm are constitutionally required.In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution. [Footnote 18] The Page 402 U. S. 208 States are entitled to assume that jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision and will consider a variety of factors, many of which will have been suggested by the evidence or by the arguments of defense counsel. For a court to attempt to catalog the appropriate factors in this elusive area could inhibit, rather than expand, the scope of consideration, for no list of circumstances would ever be really complete. The infinite variety of cases and facets to each case would make general standards either meaningless "boiler-plate" or a statement of the obvious that no jury would need.IVAs we noted at the outset of this opinion, McGautha's trial was in two stages, with the jury considering the issue of guilt before the presentation of evidence and argument on the issue of punishment. Such a procedure is required by the laws of California and of five other States. [Footnote 19] Petitioner Crampton, whose guilt and punishment were determined at a single trial, contends Page 402 U. S. 209 that a procedure like California's is compelled by the Constitution as well.This Court has twice had occasion to rule on separate penalty proceedings in the context of a capital case. In United States v. Jackson, 390 U. S. 570 (1968), we held unconstitutional the penalty provisions of the Federal Kidnaping Act, which we construed to mean that a defendant demanding a jury trial risked the death penalty, while one pleading guilty or agreeing to a bench trial faced a maximum punishment of life imprisonment. The Government had contended that, in order to mitigate this discrimination, we should adopt an alternative construction, authorizing the trial judge accepting a guilty plea or jury waiver to convene a special penalty jury empowered to recommend the death sentence. Id. at 390 U. S. 572. Our rejection of this contention was not based solely on the fact that it appeared to run counter to the language and legislative history of the Act."[E]ven on the assumption that the failure of Congress to [provide for the convening of a penalty jury] was wholly inadvertent, it would hardly be the province of the courts to fashion a remedy. Any attempt to do so would be fraught with the gravest difficulties. . . ."Id. at 390 U. S. 578-579. We therefore declined"to create from whole cloth a complex and completely novel procedure and to thrust it upon unwilling defendants for the sole purpose of rescuing a statute from a charge of unconstitutionality."Id. at 390 U. S. 580. Jackson, however, did not consider the possibility that such a procedure might be constitutionally required in capital cases.Substantially this result had been sought by the petitioners in Spencer v. Texas, 385 U. S. 554 (1967). Like Crampton, Spencer had been tried in a unitary proceeding before a jury which fixed punishment at death. Also like Crampton, Spencer contended that the Due Process Page 402 U. S. 210 Clause of the Fourteenth Amendment required a bifurcated trial so that evidence relevant solely to the issue of punishment would not prejudice his case on guilt. We rejected this contention, in the following language:"To say that the two-stage jury trial in the English-Connecticut style is probably the fairest, as some commentators and courts have suggested, and with which we might well agree were the matter before us in a legislative or rulemaking context, is a far cry from a constitutional determination that this method of handling the problem is compelled by the Fourteenth Amendment. Two-part jury trials are rare in our jurisprudence; they have never been compelled by this Court as a matter of constitutional law, or even as a matter of federal procedure. With recidivism the major problem that it is, substantial changes in trial procedure in countless local courts around the country would be required were this Court to sustain the contentions made by these petitioners. This we are unwilling to do. To take such a step would be quite beyond the pale of this Court's proper function in our federal system."Id. at 385 U. S. 567-568 (footnotes omitted). Spencer considered the bifurcation issue in connection with the State's introduction of evidence of prior crimes; we now consider the issue in connection with a defendant's choice whether to testify in his own behalf. But even though this case cannot be said to be controlled by Spencer, our opinion there provides a significant guide to decision here.ACrampton's argument for bifurcation runs as follows. Under Malloy v. Hogan, 378 U. S. 1 (1964), and Griffin v. California, 380 U. S. 609 (1965), he enjoyed a constitutional right not to be compelled to be a witness Page 402 U. S. 211 against himself. Yet, under the Ohio single-trial procedure, he could remain silent on the issue of guilt only at the cost of surrendering any chance to plead his case on the issue of punishment. He contends that, under the Due Process Clause of the Fourteenth Amendment, as elaborated in, e.g., Townsend v. Burke, 334 U. S. 736 (1948); Specht v. Patterson, 386 U. S. 605 (1967); and Mempa v. Rhay, 389 U. S. 128 (1967), he had a right to be heard on the issue of punishment and a right not to have his sentence fixed without the benefit of all the relevant evidence. Therefore, he argues, the Ohio procedure possesses the flaw we condemned in Simmons v. United States, 390 U. S. 377, 390 U. S. 394 (1968); it creates an intolerable tension between constitutional rights. Since this tension can be largely avoided by a bifurcated trial, petitioner contends that there is no legitimate state interest in putting him to the election, and that the single-verdict trial should be held invalid in capital cases.Simmons, however, dealt with a very different situation from the one which confronted petitioner Crampton, and not everything said in that opinion can be carried over to this case without circumspection. In Simmons, we held it unconstitutional for the Federal Government to use at trial the defendant's testimony given on an unsuccessful motion to suppress evidence allegedly seized in violation of the Fourth Amendment. We concluded that to permit such use created an unacceptable risk of deterring the prosecution of marginal Fourth Amendment claims, thus weakening the efficacy of the exclusionary rule as a sanction for unlawful police behavior. This was surely an analytically sufficient basis for decision. However, we went on to observe that the penalty thus imposed on the good faith assertion of Fourth Amendment rights was "of a kind to which this Court has always been peculiarly Page 402 U. S. 212 sensitive," 390 U.S. at 390 U. S. 393, for it involved the incrimination of the defendant out of his own mouth.We found it not a little difficult to support this invocation of the Fifth Amendment privilege. We recognized that, "[a]s an abstract matter," the testimony might be voluntary, and that testimony to secure a benefit from the Government is not ipso facto "compelled" within the meaning of the Self-Incrimination Clause. The distinguishing feature in Simmons' case, we said, was that "the benefit' to be gained is that afforded by another provision of the Bill of Rights." Id. at 390 U. S. 393-394. Thus, the only real basis for holding that Fifth Amendment policies were involved was the colorable Fourth Amendment claim with which we had begun.The insubstantiality of the purely Fifth Amendment interests involved in Simmons was illustrated last Term by the trilogy of cases involving guilty pleas: Brady v. United States, 397 U. S. 742 (1970); McMann v. Richardson, 397 U. S. 759 (1970); Parker v. North Carolina, 397 U. S. 790 (1970). While, in Simmons, we relieved the defendant of his "waiver" of Fifth Amendment rights made in order to obtain a benefit to which he was ultimately found not constitutionally entitled, in the trilogy, we held the defendants bound by "waivers" of rights under the Fifth, Sixth, and Fourteenth Amendments made in order to avoid burdens which, it was ultimately determined, could not constitutionally have been imposed. In terms solely of Fifth Amendment policies, it is apparent that Simmons had a far weaker claim to be relieved of his ill-advised "waiver" than did the defendants in the guilty plea trilogy. While we have no occasion to question the soundness of the result in Simmons, and do not do so, to the extent that its rationale was based on a "tension" between constitutional rights and the policies behind them, the validity of that reasoning must now be regarded as open to question, and it certainly cannot be Page 402 U. S. 213 given the broad thrust which is attributed to it by Crampton in the present case.The criminal process, like the rest of the legal system, is replete with situations requiring "the making of difficult judgments" as to which course to follow. McMann v. Richardson, 397 U.S. at 397 U. S. 769. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not, by that token, always forbid requiring him to choose. The threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved. Analysis of this case in such terms leads to the conclusion that petitioner has failed to make out his claim of a constitutional violation in requiring him to undergo a unitary trial.BWe turn first to the privilege against compelled self-incrimination. The contention is that, where guilt and punishment are to be determined by a jury at a single trial, the desire to address the jury on punishment unduly encourages waiver of the defendant's privilege to remain silent on the issue of guilt, or, to put the matter another way, that the single-verdict procedure unlawfully compels the defendant to become a witness against himself on the issue of guilt by the threat of sentencing him to death without having heard from him. It is not contended, nor could it be successfully, that the mere force of evidence is compulsion of the sort forbidden by the privilege. See Williams v. Florida, 399 U. S. 78, 399 U. S. 83-85 (1970). It does no violence to the privilege that a person's choice to testify in his own behalf may open the door to otherwise inadmissible evidence which is damaging to his case. See Spencer v. Texas, 385 U.S. at 385 U. S. 561 and n. 7; cf. Michelson v. United States, 335 U. S. 469 (1948). The narrow question left open is whether it is consistent Page 402 U. S. 214 with the privilege for the State to provide no means whereby a defendant wishing to present evidence or testimony on the issue of punishment may limit the force of his evidence (and the State's rebuttal) to that issue. We see nothing in the history, policies, or precedents relating to the privilege which requires such means to be available.So far as the history of the privilege is concerned, it suffices to say that it sheds no light whatever on the subject, unless, indeed, that which is adverse, resulting from the contrast between the dilemma of which petitioner complains and the historical excesses which gave rise to the privilege. See generally 8 J. Wigmore, Evidence § 2250 (McNaughton rev. ed.1961); L. Levy, Origins of the Fifth Amendment (1968). Inasmuch as, at the time of framing of the Fifth Amendment and for many years thereafter, the accused in criminal cases was not allowed to testify in his own behalf, nothing approaching Crampton's dilemma could arise.The policies of the privilege likewise are remote support for the proposition that defendants should be permitted to limit the effects of their evidence to the issue of punishment. The policies behind the privilege are varied, and not all are implicated in any given application of the privilege. See Murphy v. Waterfront Commission, 378 U. S. 52, 378 U. S. 55 (1964); see generally 8 J. Wigmore, supra, at § 2251, and sources cited therein, n. 2. It can safely be said, however, that, to the extent these policies provide any guide to decision, see McKay, Book Review, 35 N.Y.U.L.Rev. 1097, 1100-1101 (1960), the only one affected to any appreciable degree is that of "cruelty."It is undeniably hard to require a defendant on trial for his life and desirous of testifying on the issue of punishment to make nice calculations of the effect of his testimony on the jury's determination of guilt. The issue of cruelty thus arising, however, is less closely akin Page 402 U. S. 215 to "the cruel trilemma of self-accusation, perjury or contempt," Murphy v. Waterfront Commission, 378 U.S. at 378 U. S. 55, than to the fundamental requirements of fairness and decency embodied in the Due Process Clauses. Whichever label is preferred, appraising such considerations is inevitably a matter of judgment as to which individuals may differ; however, a guide to decision is furnished by the clear validity of analogous choices with which criminal defendants and their attorneys are quite routinely faced.It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. See, e.g., Brown v. Walker, 161 U. S. 591, 161 U. S. 597-598 (1896); Fitzpatrick v. United States, 178 U. S. 304, 178 U. S. 314-316 (1900); Brown v. United States, 356 U. S. 148 (1958). It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. See Spencer v. Texas, 385 U.S. at 385 U. S. 561; cf. Michelson v. United States, 335 U. S. 469 (1948); but cf. Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965); United States v. Palumbo, 401 F.2d 270 (CA2 1968). Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.Further, a defendant whose motion for acquittal at the close of the Government's case is denied must decide whether to stand on his motion or put on a defense, with the risk that in so doing he will bolster the Government case enough for it to support a verdict of guilty. Page 402 U. S. 216 E.g., United States v. Calderon, 348 U. S. 160, 348 U. S. 164 and n. 1 (1954); 2 C. Wright, Federal Practice and Procedure § 463 (1969); cf. American Bar Association, Project on Standards for Criminal Justice, Trial by Jury 107-108 (Approved Draft, 1968). But see Comment, The Motion for Acquittal: A Neglected Safeguard, 70 Yale L.J. 1151 (1961); cf. Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893 (1963). Finally, only last Term, in Williams v. Florida, 399 U. S. 78 (1970), we had occasion to consider a Florida "notice of alibi" rule which put the petitioner in that case to the choice of either abandoning his alibi defense or giving the State both an opportunity to prepare a rebuttal and leads from which to start. We rejected the contention that the rule unconstitutionally compelled the defendant to incriminate himself. The pressures which might lead the defendant to furnish this arguably "testimonial" and "incriminating" information arose simply from"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."Id. at 85.We are thus constrained to reject the suggestion that a desire to speak to one's sentencer unlawfully compels a defendant in a single-verdict capital case to incriminate himself, unless there is something which serves to distinguish sentencing -- or at least capital sentencing -- from the situations given above. Such a distinguishing factor can only be the peculiar poignancy of the position of a man whose life is at stake, coupled with the imponderables of the decision which the jury is called upon to make. We do not think that the fact that a defendant's sentence, rather than his guilt, is at issue creates a constitutionally sufficient difference from the sorts of situations Page 402 U. S. 217 we have described. While we recognize the truth of Mr. Justice Frankfurter's insight in Green v. United States, 365 U. S. 301, 365 U. S. 304 (1961) (plurality pinion), as to the peculiar immediacy of a personal plea by the defendant for leniency in sentencing, it is also true that the testimony of an accused denying the case against him has considerably more force than counsel's argument that the prosecution's case has not been proved. The relevant differences between sentencing and determination of guilt or innocence are not so great as to call for a difference in constitutional result. Nor does the fact that capital, as opposed to any other, sentencing is in issue seem to us to distinguish this case. See Williams v. New York, 337 U. S. 241, 337 U. S. 251-252 (1949). Even in noncapital sentencing the sciences of penology, sociology, and psychology have not advanced to the point that sentencing is wholly a matter of scientific calculation from objectively verifiable facts.We conclude that the policies of the privilege against compelled self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt. We therefore turn to the converse situation, in which a defendant remains silent on the issue of guilt, and thereby loses any opportunity to address the jury personally on punishment.CIt is important to identify with particularity the interests which are involved. Petitioner speaks broadly of a right of allocution. This right, of immemorial origin, arose in a context very different from that which confronted petitioner Crampton. [Footnote 20] See generally Barrett, Page 402 U. S. 218 Allocution (pts. 1-2), 9 Mo.L.Rev. 115, 232 (1944). It has been preserved in its original form in Ohio and in many other States. [Footnote 21] What petitioner seeks, to be sure for purposes not wholly unrelated to those served by the right of allocution in former times, see Green v. United States, 365 U.S. at 365 U. S. 304 (opinion of Frankfurter, J.), is nevertheless a very different procedure occurring in a radically different framework of criminal justice.Leaving aside the term "allocution," it also appears that petitioner is not claiming the right simply to be heard on the issue of punishment. This Court has not directly determined whether or to what extent the concept of due process of law requires that a criminal defendant wishing to present evidence or argument presumably relevant to the issues involved in sentencing should be permitted to do so. [Footnote 22] Assuming, without deciding, Page 402 U. S. 219 that the Constitution does require such an opportunity, there was no denial of such a right in Crampton's case. The Ohio Constitution guarantees defendants the right to have their counsel argue in summation for mercy, as well as for acquittal. Shelton v. State, 102 Ohio St. 376, 131 N.E. 704 (1921). The extent to which evidence going solely to the issue of punishment is admissible under Ohio law is unclear, see Ashrook v. State, 49 Ohio App. 298, 197 N.E. 214 (1935), but, in any event, it seems apparent that Ohio judges, as one would expect, take a lenient view of the admissibility of evidence offered by a defendant on trial for his life. As the present case illustrates, an accused can put before the jury a great deal of background evidence with, at best, a tenuous connection to the issue of guilt. The record in Crampton's case does not reveal that any evidence offered on the part of the defendant was excluded on the ground that it was relevant solely to the issue of punishment.On the other hand, petitioner is not seeking vindication for his interest in making a personal plea for mercy. [Footnote 23] Page 402 U. S. 220 Even in a bifurcated trial, the defendant could be restricted to the giving of evidence, with argument to be made by counsel only. Petitioner's contention therefore comes down to the fact that the Ohio single verdict trial may deter the defendant from bringing to the jury's attention evidence peculiarly within his own knowledge, and it may mean that the death verdict will be returned by a jury which never heard the sound of his voice. We do not think that the possibility of the former is sufficiently great to sustain petitioner's claim that the single verdict trial may deprive the jury of a rational basis for fixing sentence. Assuming that in this case there was relevant information solely within petitioner's knowledge, we do not think the Constitution forbids a requirement that such evidence be available to the jury on all issues to which it is relevant or not at all. As to the largely symbolic value represented by the latter interest, Ohio has provided for retention of the ritual of allocution, albeit only in its common law form, precisely to avoid the possibility that a person might be tried, convicted, and sentenced to death in complete silence. We have held that failure to ensure such personal participation in the criminal process is not necessarily a constitutional flaw in the conviction. Hill v. United States, 368 U. S. 424 (1962). We do not think that Ohio was required to provide an opportunity for petitioner to speak to the jury free from any adverse consequences on the issue of guilt. We therefore reject this branch of petitioner's argument as well.VBefore we conclude this opinion, it is appropriate for us to make a broader observation than the issues raised by Page 402 U. S. 221 these cases strictly call for. It may well be, as the American Law Institute and the National Commission on Reform of Federal Criminal Laws have concluded, that bifurcated trials and criteria for jury sentencing discretion are superior means of dealing with capital cases if the death penalty is to be retained at all. But the Federal Constitution, which marks the limits of our authority in these cases, does not guarantee trial procedures that are the best of all worlds, or that accord with the most enlightened ideas of students of the infant science of criminology, or even those that measure up to the individual predilections of members of this Court. See Spencer v. Texas, 385 U. S. 554 (1967). The Constitution requires no more than that trials be fairly conducted and that guaranteed rights of defendants be scrupulously respected. From a constitutional standpoint, we cannot conclude that it is impermissible for a State to consider that the compassionate purposes of jury sentencing in capital cases are better served by having the issues of guilt and punishment determined in a single trial than by focusing the jury's attention solely on punishment after the issue of guilt has been determined.Certainly the facts of these gruesome murders bespeak no miscarriage of justice. The ability of juries, unassisted by standards, to distinguish between those defendants for whom the death penalty is appropriate punishment and those for whom imprisonment is sufficient is indeed illustrated by the discriminating verdict of the jury in McGautha's case, finding Wilkinson the less culpable of the two defendants and sparing his life.The procedures which petitioners challenge are those by which most capital trials in this country are conducted, and by which all were conducted until a few years ago. We have determined that these procedures are consistent with the rights to which petitioners were constitutionally entitled, and that their trials were entirely fair. Having Page 402 U. S. 222 reached these conclusions, we have performed our task of measuring the States' process by federal constitutional standards, and accordingly the judgment in each of these cases isAffirmed

U.S. Supreme CourtMcGautha v. California, 402 U.S. 183 (1971)McGautha v. CaliforniaNo. 203Argued November 9, 1970Decided May 3, 1971*402 U.S. 183SyllabusPetitioner in No. 203 was convicted of first-degree murder in California, and was sentenced to death. The penalty was left to the jury's absolute discretion, and punishment was determined in a separate proceeding following the trial on the issue of guilt. Petitioner in No. 204 was convicted of first-degree murder, and was sentenced to death in Ohio, where the jury, which also had absolute penalty discretion, determined guilt and penalty after a single trial and in a single verdict. Certiorari was granted to consider whether petitioners' rights were infringed by permitting the death penalty without standards to govern its imposition, and in No. 204, to consider the constitutionality of a single guilt and punishment proceeding.Held:1. In light of history, experience, and the limitations of human knowledge in establishing definitive standards, it is impossible to say that leaving to the untrammeled discretion of the jury the power to pronounce life or death in capital cases violates any provision of the Constitution. Pp. 402 U. S. 196-208.2. The Constitution does not prohibit the States from considering that the compassionate purposes of jury sentencing in capital cases are better served by having the issues of guilt and punishment resolved in a single trial than by focusing the jury's attention solely on punishment after guilt has been determined. Pp. 402 U. S. 208-222.(a) Petitioner in No. 204 has failed to show that his unitary trial violated the Constitution by forcing "the making of difficult judgments" in his decision whether to remain silent on the issue of guilt at the cost of surrendering his chance to plead his case on the punishment issue. Simmons v. United States, 390 U. S. 377, distinguished. Pp. 402 U. S. 210-213.(b) The policies of the privilege against self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt. Pp. 402 U. S. 213-217. Page 402 U. S. 184(c) Ohio does provide for the common law ritual of allocution, but the State need not provide petitioner an opportunity to speak to the jury free from any adverse consequence on the issue of guilt. Pp. 402 U. S. 217-220.No. 203, 70 Cal. 2d 770, 452 P.2d 650; and No. 204, 18 Ohio St.2d 182, 248 N.E.2d 614, affirmed.HARLAN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and BLACKMUN, JJ., joined. BLACK, J., filed a separate opinion, post, p. 402 U. S. 225. DOUGLAS, J., filed an opinion dissenting in No. 204, in which BRENNAN and MARSHALL, JJ., joined, post, p. 402 U. S. 226. BRENNAN, J., filed a dissenting opinion, ill which DOUGLAS and MARSHALL, JJ., joined, post, p. 402 U. S. 248. Page 402 U. S. 185

1986_86-322

MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post p. 482 U. S. 445.CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In these two consolidated cases, we address the power of federal courts to require a losing party to pay the compensation of the winner's expert witnesses. In No. 86-322, respondent J. T. Gibbons, Inc., sued petitioner Crawford Fitting Co. and other petitioners for alleged violations of the Page 482 U. S. 439 antitrust laws. The District Court directed a verdict in favor of petitioners. 565 F. Supp. 167 (ED La.1981), aff'd, 704 F.2d 787 (CA5 1983). Petitioners then filed a bill of costs with the Clerk of that court, seeking reimbursement from respondent for over $220,000 in litigation expenses, including substantial expert witness fees. The District Court held that Federal Rule of Civil Procedure 54(d) granted it discretion to exceed the $30-per-day witness fee limit found in 28 U.S.C. § 1821(b). It accordingly awarded petitioners $86,480.70 for their expert witnesses. 102 F.R.D. 73 (ED La.1984). En banc, the Court of Appeals for the Fifth Circuit reversed, holding that the limit of § 1821(b) controlled. 790 F.2d 1193 (1986). In No. 86-328, respondent International Woodworkers of America (IWA) sued petitioner Champion International, alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. After a trial on the merits, the District Court dismissed all of respondent's claims. Petitioner thereafter filed a bill of costs, including $11,807 in expert witness fees. The District Court declined to order respondent to reimburse petitioner for these fees to the extent they exceeded the $30-per-day limit. The en banc Court of Appeals for the Fifth Circuit affirmed, finding the limit set forth in § 1821(b) dispositive. 790 F.2d 1174 (1986). We agree, and hold that, when a prevailing party seeks reimbursement for fees paid to its own expert witnesses, a federal court is bound by the limit of § 1821(b), absent contract or explicit statutory authority to the contrary.In 1793, Congress enacted a general provision linking some taxable costs in most cases in federal courts to the practice of the courts of the State in which the federal court sat. Act of Mar. 1, 1793, § 4, 1 Stat. 333. This provision expired in 1799. Apparently, from 1799 until 1853, federal courts continued to refer to state rules governing taxable costs. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 421 U. S. 250 (1975). By 1853, there was a "great diversity Page 482 U. S. 440 in practice among the courts" and "losing litigants were being unfairly saddled with exorbitant fees." Id. at 421 U. S. 251. Accordingly, Congress returned to the issue and comprehensively regulated fees and the taxation of fees as costs in the federal courts. The resulting 1853 Fee Act "was a far-reaching Act specifying in detail the nature and amount of the taxable items of cost in the federal courts." 421 U.S. at 421 U. S. 251-252.It provided, in part,"That in lieu of the compensation now allowed by law to attorneys, solicitors, . . . and . . . witnesses . . . in the several States, the following and no other compensation shall be taxed and allowed."Act of Feb. 26, 1853, 10 Stat. 161. The rate for witnesses was set at $1.50 per day. 10 Stat. 167. The sweeping reforms of the 1853 Act have been carried forward to today, "without any apparent intent to change the controlling rules." Alyeska Pipeline, supra, at 421 U. S. 255. Title 28 U.S.C. § 1920 now embodies Congress' considered choice as to the kinds of expenses that a federal court may tax as costs against the losing party:"A judge or clerk of any court of the United States may tax as costs the following:""(1) Fees of the clerk and marshal;""(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;""(3) Fees and disbursements for printing and witnesses;""(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;""(5) Docket fees under section 1923 of this title;""(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title."The witness fee specified in § 1920(3) is defined in 28 U.S.C. § 1821: Page 482 U. S. 441"(a)(1) Except as otherwise provided by law, a witness in attendance at any court of the United States . . . shall be paid the fees and allowances provided by this section.""(b) A witness shall be paid an attendance fee of $30 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance."Federal Rule of Civil Procedure 54(d), in turn, provides in part:"Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs."The logical conclusion from the language and interrelation of these provisions is that § 1821 specifies the amount of the fee that must be tendered to a witness, § 1920 provides that the fee may be taxed as a cost, and Rule 54(d) provides that the cost shall be taxed against the losing party unless the court otherwise directs.Petitioners argue that, since § 1920 lists which expenses a court "may" tax as costs, that section only authorizes taxation of certain items. In their view, § 1920 does not preclude taxation of costs above and beyond the items listed, and more particularly, amounts in excess of the § 1821(b) fee. Thus, the discretion granted by Rule 54(d) is a separate source of power to tax as costs expenses not enumerated in § 1920. We think, however, that no reasonable reading of these provisions together can lead to this conclusion, for petitioners' view renders § 1920 superfluous. If Rule 54(d) grants courts discretion to tax whatever costs may seem appropriate, then § 1920, which enumerates the costs that may be taxed, serves no role whatsoever. We think the better view is that § 1920 defines the term "costs" as used in Rule 54(d). Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority Page 482 U. S. 442 found in Rule 54(d). It is phrased permissively because Rule 54(d) generally grants a federal court discretion to refuse to tax costs in favor of the prevailing party. One of the items enumerated in § 1920 is the witness fee, set by § 1821(b) at $30 per day.We cannot accept an interpretation of Rule 54(d) that would render any of these specific statutory provisions entirely without meaning. Repeals by implication are not favored, and petitioners proffer the ultimate in implication, for Rule 54(d) and §§ 1920 and 1821 are not even inconsistent. We think that it is clear that, in §§ 1920 and 1821, Congress comprehensively addressed the taxation of fees for litigants' witnesses. This conclusion is all the more compelling when we consider that § 1920(6) allows the taxation, as a cost, of the compensation of court-appointed expert witnesses. There is no provision that sets a limit on the compensation for court-appointed expert witnesses in the way that § 1821(b) sets a limit for litigants' witnesses. It is therefore clear that, when Congress meant to set a limit on fees, it knew how to do so. We think that the inescapable effect of these sections in combination is that a federal court may tax expert witness fees in excess of the $30-per-day limit set out in § 1821(b) only when the witness is court-appointed. The discretion granted by Rule 54(d) is not a power to evade this specific congressional command. Rather, it is solely a power to decline to tax, as costs, the items enumerated in § 1920.The logic of this conclusion notwithstanding, petitioners place heavy weight on a single sentence found in our opinion in Farmer v. Arabian American Oil Co., 379 U. S. 227 (1964). In that case, this Court held that the District Court had not abused its discretion in refusing to tax against the losing plaintiff the travel expenses of witnesses for the defendant. In the course of so ruling, the Court stated:"[T]he discretion given district judges [by Rule 54(d)] to tax costs should be sparingly exercised with reference to Page 482 U. S. 443 expenses not specifically allowed by statute."Id. at 379 U. S. 235. Applying this language to the present case, petitioners argue that courts therefore have discretion to tax as costs expenses incurred beyond those specified by Congress as fees in § 1821, and made taxable by § 1920.The sentence relied upon is classic obiter: something mentioned in passing, which is not in any way necessary to the decision of the issue before the Court. We think the dictum is inconsistent with the foregoing analysis, and we disapprove it.The argument petitioners present today was squarely rejected in Henkel v. Chicago, S. P., M. & O. R. Co., 284 U. S. 444 (1932). In that case, the Court held that federal courts have no authority to award expert witness fees in excess of the statutory limit set by Congress in the Fee Act of 1853. The Court's reasoning was straightforward:"Specific provision as to the amounts payable and taxable as witness fees was made by Congress as early as the Act of February 28, 1799. . . . Under these provisions, additional amounts paid as compensation, or fees, to expert witnesses cannot be allowed or taxed as costs in cases in the federal courts.""* * * *" ". . . Congress has dealt with the subject comprehensively, and has made no exception of the fees of expert witnesses. Its legislation must be deemed controlling. . . . "Id. at 284 U. S. 446-447.Petitioners contend that, because Henkel was decided before the merger of law and equity in the federal courts, it is no longer good law. Petitioners' argument proceeds along the following lines: Prior to the adoption of the Federal Rules of Civil Procedure, federal courts could sit in law or in equity. In petitioners' view, courts sitting in equity had broad discretion to award fees not specified by statute. Henkel, decided Page 482 U. S. 444 under this regime, held that courts at law had no power to exceed the limits set by statute. Now that the federal courts' legal and equitable powers are combined, petitioners conclude that Henkel cannot control the scope of a federal court's powers to exceed the limits set by statute.We cannot agree. Henkel rested on statutory interpretation. Whatever the effect of the merger of law and equity in federal courts, it did not repeal any part of the Fee Act. Title 28 U.S.C. §§ 1920 and 1821, today's counterparts to the provisions of the Fee Act at issue in Henkel, are still law and, when not overridden by contract or explicit statutory authority, they control a federal court's power to hold a losing party responsible for the opponent's witness fees.Our conclusion conforms to our prior interpretations of the 1853 Fee Act. In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 (1975), we considered the general role of the Act in federal courts. The Act "specified in detail the nature and amount of the taxable items of cost in the federal courts." Id. at 421 U. S. 252. The comprehensive scope of the Act and the particularity with which it was drafted demonstrated to us that Congress meant to impose rigid controls on cost-shifting in federal courts. Thus, we rejected an argument similar to the one posited by petitioners today:"Nor has [Congress] extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted."Id. at 421 U. S. 260.Although Congress responded to our decision in Alyeska by broadening the availability of attorney's fees in the federal courts, see the Civil Rights Attorney's Fees Awards Act of 1976, 90 Stat. 2641, 42 U.S.C. § 1988, it has not otherwise "retracted, repealed, or modified the limitations on taxable fees contained in the 1853 statute and its successors." 421 U.S. at 421 U. S. 260. Thus, we are once again asked to hold that a specific congressional enactment on the shifting of litigation costs is of no moment. We think that, as in Alyeska, Congress has made its intent plain in its detailed treatment of Page 482 U. S. 445 witness fees. We will not lightly infer that Congress has repealed §§ 1920 and 1821, either through Rule 54(d) or any other provision not referring explicitly to witness fees. As always,"'[w]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.'"Radzanower v. Touche Ross & Co., 426 U. S. 148, 426 U. S. 153 (1976), quoting Morton v. Mancari, 417 U. S. 535, 417 U. S. 550-551 (1974) (emphasis added). Any argument that a federal court is empowered to exceed the limitations explicitly set out in §§ 1920 and 1821 without plain evidence of congressional intent to supersede those sections ignores our longstanding practice of construing statutes in pari materia. See United States v. United Continental Tuna Corp., 425 U. S. 164, 425 U. S. 168-169 (1976); Train v. Colorado Public Interest Research Group, 426 U. S. 1, 426 U. S. 24 (1976).We hold that, absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant's witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920. The judgments of the Court of Appeals are affirmed, and No. 86-322 is remanded for further proceedings consistent with this opinion.It is so ordered

U.S. Supreme CourtCrawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437 (1987)Crawford Fitting Co. v. J. T. Gibbons, Inc.No. 86-322Argued April 29, 1987Decided June 15, 1987*482 U.S. 437SyllabusTitle 28 U.S.C. § 1920 provides that a federal court "may tax" specified items, including witness fees, as costs against the losing party, and § 1821(b) states that a witness "shall be paid" a fee of $30 per day for court attendance. Federal Rule of Civil Procedure 54(d) provides in part:"Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs."In No. 86-322, petitioners prevailed as the defendants in an antitrust action filed by respondent, and the Federal District Court awarded, as part of petitioners' costs, an amount for expert witness fees in excess of § 1821(b)'s $30-per-day limit, holding that Rule 54(d) granted it discretion to exceed such limit. The Court of Appeals reversed, concluding that § 1821(b)'s limit controlled. In No. 86-328, petitioner prevailed in an action against it by respondents for alleged violations of federal civil rights statutes. The Federal District Court refused to order respondents to reimburse petitioner for its expert witness fees to the extent they exceeded the $30-per-day limit, and the Court of Appeals affirmed.Held: When a prevailing party seeks reimbursement for fees paid to its expert witnesses, a federal court is bound by the limits of § 1821(b), absent contract or explicit statutory authority to the contrary. There is no merit to petitioners' contentions that, since § 1920 lists expenses which a court "may" tax as costs, it only authorizes taxation of such items, and does not preclude taxation for other items or amounts in excess of the § 1821(b) fee; and that the discretion granted by Rule 54(d) is a separate power to tax expenses as costs. If Rule 54(d) were so construed, § 1920 would serve no role whatsoever. The better view is that § 1920 defines the term "costs" as used in Rule 54(d) and enumerates expenses that a federal court may tax as costs under the discretionary authority found in Rule 54(d). Section 1920 is phrased permissibly because Rule 54(d) generally grants a federal court discretion to refuse to tax costs in favor of Page 482 U. S. 438 the prevailing party. Such discretion is not a power to evade the specific congressional command limiting the amount of witness fees. Rather, it is solely a power to decline to tax, as costs, the items enumerated in § 1920. The dictum to the contrary in Farmer v. Arabian American Oil Co., 379 U. S. 227, is disapproved. Henkel v. Chicago, S. P., M. & O. R. Co., 284 U. S. 444 -- which held that federal courts had no authority to award expert witness fees in excess of the 1853 statutory limit -- controls here, even though it was decided before the adoption of the Federal Rules of Civil Procedure and the merger of law and equity in the federal courts. Cf. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240. Pp. 482 U. S. 441-445.790 F.2d 1193, affirmed and remanded; and 790 F.2d 1174, affirmed.REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, STEVENS, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J. filed a concurring opinion, post p. 482 U. S. 445. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post p. 482 U. S. 445.

1957_81

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.These two cases, argued in succession, are controlled by the same considerations, and will be disposed of in a single opinion. In one case, the National Labor Relations Board ruled that it was not an unfair labor practice for an employer to enforce against his employees a no-solicitation rule, in itself concededly valid, while the employer was himself engaged in anti-union solicitation in a context of separate unfair labor practices. This ruling was reversed by a Court of Appeals. [Footnote 1] In the second case, the Board, on the basis of similar facts, except that the employer's anti-union solicitation by itself constituted a separate unfair labor practice, found the enforcement of the rule to have been an unfair labor practice, but another Court of Appeals denied enforcement of the Page 357 U. S. 359 Board's order. We brought both cases here because of the importance of the question they present in the administration of the Taft-Hartley Act, and because of the apparent conflict in the decisions in the Courts of Appeals. 353 U.S. 921; 355 U.S. 811.No. 81. -- In April of 1953, the respondent Steelworkers instituted a campaign to organize the employees of respondent NuTone, Inc., a manufacturer of electrical devices. In the early stages of the campaign, supervisory personnel of the company interrogated employees and solicited reports concerning the organizational activities of other employees. Several employees were discharged; the Board later found that the discharges had been the result of their organizational activities. In June, the company began to distribute, through its supervisory personnel, literature that, although not coercive, was clearly anti-union in tenor. In August, while continuing to distribute such material, the company announced its intention of enforcing its rule against employees' posting signs or distributing literature on company property or soliciting or campaigning on company time. The rule, according to these posted announcements, applied to "all employees -- whether they are for or against the union." Later the same month, a representation election was held which the Steelworkers lost.In a proceeding before the Board commenced at the instance of the Steelworkers, the company was charged with a number of violations of the Act alleged to have taken place both before and after the election, including the discriminatory application of the no-solicitation rule. The Board found that the pre-election interrogation and solicitation by supervisory personnel and the discharge of employees were unfair labor practices; it also found that the company had, in violation of the Act, assisted and supported an employee organization formed after the Page 357 U. S. 360 election. However, the Board dismissed the allegation that the company had discriminatorily enforced its no-solicitation rule. 112 N.L.R.B. 1153. The Steelworkers sought review of this dismissal in the United States Court of Appeals for the District of Columbia Circuit, and the Board petitioned for enforcement of its order in the same court. The Court of Appeals concluded that it was an unfair labor practice for the company to prohibit the distribution of organizational literature on company property during nonworking hours while the company was itself distributing anti-union literature, and it directed that the Board's order be modified accordingly, and enforced as modified. 100 U.S.App.D.C. 170, 243 F.2d 593.No. 289. -- In the fall of 1954, the Textile Workers conducted an organizational campaign at several of the plants of respondent Avondale Mills. A number of individual employees were called before supervisory personnel of the company, on the ground that they had been soliciting union membership, and informed that such solicitation was in violation of plant rules, and would not be tolerated in the future. The rule had not been promulgated in written form, but there was evidence that it had been previously invoked in a nonorganizational context. During this same period, both in these interviews concerning the rule and at the employees' places of work, supervisory personnel interrogated employees concerning their organizational views and activities and solicited employees to withdraw their membership cards from the union. This conduct was in many cases accompanied by threats that the mill would close down or that various employee benefits would be lost if the mill should become organized. Subsequently, three employees, each of whom had been informed of the no-solicitation rule, were laid off, and eventually discharged, for violating the rule. Page 357 U. S. 361As a result of charges filed with the Board by the Textile Workers, a complaint was brought against the company alleging that it had committed a number of unfair labor practices, including the discriminatory invocation of the no-solicitation rule and the discharge of employees for its violation. The Board found that the interrogation, solicitation, and threatening of employees by the company's supervisory personnel were unfair labor practices. Moreover, it found that resort to the no-solicitation rule and discharge of the three employees for its violation were discriminatory, and therefore in violation of the Act; it further held that, even if the rule had not been invoked discriminatorily, the discharge of one of the employees had resulted solely from his organizational activities, apart from any violation of the rule, and was therefore an unfair labor practice. The Board ordered the cessation of these practices and the reinstatement of the discharged employees. 115 N.L.R.B. 840. Upon the Board's petitioning for enforcement in the Court of Appeals for the Fifth Circuit, the company contested only the portions of the Board's findings and order relating to the rule and the discharges. The court enforced the uncontested portions of the order, but, finding insufficient evidence of discrimination in the application of the no-solicitation rule, denied enforcement to the portion of the order relating to the rule and to two of the discharges. As to the third discharge, the court agreed with the Board that it was the result of discrimination unrelated to a violation of the rule, and the court enforced the portion of the Board's order directing the employee's reinstatement. 242 F.2d 669.Employer rules prohibiting organizational solicitation are not, in and of themselves, violative of the Act, for they may duly serve production, order and discipline. See Republic Aviation Corp. v. National Labor Relations Board, 324 U. S. 793; Page 357 U. S. 362 Labor Board v. Babcock & Wilcox Co., 351 U. S. 105. In neither of the cases before us did the party attacking the enforcement of the no-solicitation rule contest its validity. Nor is the claim made that an employer may not, under proper circumstances, engage in noncoercive anti-union solicitation; indeed, his right to do so is protected by the so-called "employer free speech" provision of § 8(c) of the Act. [Footnote 2] Contrariwise, as both cases before us show, coercive anti-union solicitation and other similar conduct run afoul of the Act, and constitute unfair labor practices irrespective of the bearing of such practices on enforcement of a no-solicitation rule. The very narrow and almost abstract question here derives from the claim that, when the employer himself engages in anti-union solicitation that, if engaged in by employees, would constitute a violation of the rule -- particularly when his solicitation is coercive or accompanied by other unfair labor practices -- his enforcement of an otherwise valid no-solicitation rule against the employees is itself an unfair labor practice. We are asked to rule that the coincidence of these circumstances necessarily violates the Act, regardless of the way in which the particular controversy arose or whether the employer's conduct to any considerable degree created an imbalance in the opportunities for organizational communication. For us to lay down such a rule of law would show indifference to the responsibilities imposed by the Act primarily on the Board to appraise carefully the interests of both sides of any labor-management controversy Page 357 U. S. 363 in the diverse circumstances of particular cases and in light of the Board's special understanding of these industrial situations.There is no indication in the record in either of these cases that the employees, or the union on their behalf, requested the employer, himself engaging in anti-union solicitation, to make an exception to the rule for pro-union solicitation. There is evidence in both cases that the employers had in the past made exceptions to their rules for charitable solicitation. Notwithstanding the clear anti-union bias of both employers, it is not for us to conclude as a matter of law -- although it might well have been open to the Board to conclude as a matter of industrial experience -- that a request for a similar qualification upon the rule for organizational solicitation would have been rejected. Certainly the employer is not obliged voluntarily and without any request to offer the use of his facilities and the time of his employees for pro-union solicitation. He may very well be wary of a charge that he is interfering with, or contributing support to, a labor organization in violation of § 8(a)(2) of the Act. [Footnote 3]No attempt was made in either of these cases to make a showing that the no-solicitation rules truly diminished the ability of the labor organizations involved to carry their message to the employees. Just as that is a vital consideration in determining the validity of a no-solicitation rule, see Republic Aviation Corp. v. Labor Board, supra, at 324 U. S. 797-798; Labor Board v. Babcock & Wilcox Co., supra, at 351 U. S. 112, it is highly relevant in determining whether a valid rule has been fairly applied. Of course, the rules had the effect of closing off one channel of communication; Page 357 U. S. 364 but the Taft-Hartley Act does not command that labor organizations as a matter of abstract law, under all circumstances, be protected in the use of every possible means of reaching the minds of individual workers, nor that they are entitled to use a medium of communication simply because the employer is using it. Cf. Bonwit Teller, Inc. v. Labor Board, 197 F.2d 640, 646; Labor Board v. F. W. Woolworth Co., 214 F.2d 78, 84 (concurring opinion). No such mechanical answers will avail for the solution of this nonmechanical, complex problem in labor-management relations. If, by virtue of the location of the plant and of the facilities and resources available to the union, the opportunities for effectively reaching the employees with a pro-union message, in spite of a no-solicitation rule, are at least as great as the employer's ability to promote the legally authorized expression of his anti-union views, there is no basis for invalidating these "otherwise valid" rules. The Board, in determining whether or not the enforcement of such a rule in the circumstances of an individual case is an unfair labor practice, may find relevant alternative channels, available for communications on the right to organize. When this important issue is not even raised before the Board and no evidence bearing on it adduced, the concrete basis for appraising the significance of the employer's conduct is wanting.We do not at all imply that the enforcement of a valid no-solicitation rule by an employer who is at the same time engaging in anti-union solicitation may not constitute an unfair labor practice. All we hold is that there must be some basis, in the actualities of industrial relations, for such a finding. The records in both cases -- the issues raised in the proceedings -- are barren of the ingredients for such a finding. Accordingly, the judgment in No. 81 is reversed insofar as it sets aside and requires the Board to modify its order, and the cause is remanded to Page 357 U. S. 365 the Court of Appeals for proceedings not inconsistent with this opinion; in all other respects, it is affirmed. The judgment in No. 289 is affirmed.It is so ordered

U.S. Supreme CourtLabor Board v. Steelworkers, 357 U.S. 357 (1958)National Labor Relations Board v.United Steelworkers of America, CIONo. 81Argued January 29, 1958Decided June 30, 1958*357 U.S. 357SyllabusThese two cases involve the question whether, in the circumstances, it was an unfair labor practice within the meaning of § 8(a)(1) of the National Labor Relations Act, as amended, for an employer to enforce an otherwise valid rule forbidding employees to engage in pro-union solicitation during working hours or to distribute literature in the employer's plant when the employer was engaging in anti-union solicitation and was committing other acts which constituted unfair labor practices. In one case, the employer's anti-union campaign was so conducted as to constitute an unfair labor practice. In neither case was it shown that the employees or the union had requested the employer to make an exception to permit pro-union solicitation or that the no-solicitation rule actually diminished the ability of the labor organization involved to carry its messages to the employees.Held: the records in these cases furnish no basis for findings that enforcement of the no-solicitation rules constituted unfair labor practices. Pp. 357 U. S. 358-365.100 U.S.App.D.C. 170, 243 F.2d 593, reversed in part, affirmed in part, and cause remanded.242 F.2d 669 affirmed. Page 357 U. S. 358

1995_94-9247

acquittal filed one day outside the time limit prescribed by Federal Rule of Criminal Procedure 29(c).IPetitioner Charles Carlisle, along with several codefendants, was tried by jury in the United States District Court for the Western District of Michigan for conspiracy to possess with intent to distribute marijuana, in violation of 21 U. S. C. §§ 841, 846, 84 Stat. 1260, 1265. He did not move during the trial for a judgment of acquittal under Federal Rule of Criminal Procedure 29(a). On July 13, 1993, the jury returned a guilty verdict and was discharged. On July 23, 1993, Carlisle filed a "Motion for a Judgment of Acquittal Pursuant to Federal Rule of Criminal Procedure 29(c)," arguing that there was insufficient evidence to sustain his conviction. App. 6-9. Rule 29(c) provides that "a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period." Excluding the intermediate Saturday and Sunday (as Federal Rule of Criminal Procedure 45(a) requires), the 7-day period in this case ended on July 22,1993. The United States' response to Carlisle's motion argued that it should be denied as untimely and, alternatively, that there was sufficient evidence to sustain the conviction. The District Court denied Carlisle's motion on August 19, 1993. Its written opinion did not address the timeliness issue, but concluded that the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Carlisle knew about, and knowingly and voluntarily joined, the charged conspiracy.When Carlisle appeared for sentencing on October 14, 1993, the District Court announced that it was reversing its ruling. When it made its decision in August, the court said, it had prepared two opinions, one granting and one denying the motion, and it had now decided to substitute the former for the latter. The court subsequently entered an order that419(i) withdrew the opinion and order denying the motion to acquit and (ii) granted "Carlisle's motion for a judgment of acquittal pursuant to Rule 29(c), filed July 23, 1993." App. 45. An opinion accompanying the order concluded that there was insufficient evidence to prove that Carlisle knowingly and voluntarily joined the conspiracy to possess and distribute marijuana. In a footnote, the opinion acknowledged that the motion for judgment of acquittal was filed one day late, but concluded:" ... I can conceive of no prejudice to the United States which will result from consideration of a motion that is one day lat[e] in this case. Because I believe that refusal to hear this motion would result in grave injustice, and because [Rule 29(c)] permits the Court to extend the deadline, I will consider this motion as if it were filed in a timely manner." Id., at 37.The United States Court of Appeals for the Sixth Circuit reversed the judgment of acquittal and remanded to the District Court for reinstatement of the jury's verdict and for sentencing. It held that under Rule 29 a district court has no jurisdiction to grant an untimely motion for judgment of acquittal, and that a district court has no jurisdiction to enter a judgment of acquittal sua sponte after the case has been submitted to the jury. 48 F.3d 190, 192 (1995). We granted certiorari. 515 U. S. 1191 (1995).IIPetitioner argues that district courts "should be given the power to go outside the strict time limits of Federal Rule of Criminal Procedure 29(c)" when (1) there is a claim that the defendant was legally innocent, (2) the motion is filed prior to sentencing, and (3) the motion was not timely filed because of attorney error. Brief for Petitioner 8. Petitioner seeks to root this argument in, among other places, the Federal Rules of Criminal Procedure.420Rule 29 is reproduced in its entirety below.1 Subdivision (c) provides, in relevant part, that "[i]f the jury returns a verdict of guilty ... , a motion for judgment of acquittal may1 "Rule 29. Motion for Judgment of Acquittal"(a) MOTION BEFORE SUBMISSION TO JURY. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right."(b) RESERVATION OF DECISION ON MOTION. The court may reserve decision on a motion for judgment of acquittal, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved."(c) MOTION AFTER DISCHARGE OF JURY. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7 -day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury."(d) SAME: CONDITIONAL RULING ON GRANT OF MOTION. If a motion for judgment of acquittal after verdict of guilty under this Rule is granted, the court shall also determine whether any motion for a new trial should be granted if the judgment of acquittal is thereafter vacated or reversed, specifying the grounds for such determination. If the motion for a new trial is granted conditionally, the order thereon does not affect the finality of the judgment. If the motion for a new trial has been granted conditionally and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. If such motion has been denied conditionally, the appellee on appeal may assert error in that denial, and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court."421be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period." Federal Rule of Criminal Procedure 45(b) provides that whereas certain untimely acts may be accorded validity upon a showing of excusable neglect, "the court may not extend the time for taking any action under Rul[e] 29 ... except to the extent and under the conditions stated in [the Rule]." These Rules are plain and unambiguous. If, as in this case, a guilty verdict is returned, a motion for judgment of acquittal must be filed, either within seven days of the jury's discharge, or within an extended period fixed by the court during that 7 -day period. There is simply no room in the text of Rules 29 and 45(b) for the granting of an untimely postverdict motion for judgment of acquittal, regardless of whether the motion is accompanied by a claim of legal innocence, is filed before sentencing, or was filed late because of attorney error.Unable to offer any reading of Rule 29(c) that would permit an untimely motion for judgment of acquittal to be granted, Carlisle contends that Rule 29(a) gives a district court authority to enter a judgment of acquittal sua sponte at any time before sentencing. Rule 29(a), entitled "Motion Before Submission to Jury," provides in relevant part:"The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses."It would be quite a surprise to find a district court's sua sponte power to grant judgment of acquittal after submission of the case to the jury hidden away in a provision entitled "Motion Before Submission to Jury." We are not inclined to adopt an interpretation that creates such a surprise unless the intent that the text exceed its caption is clear.422Here, to the contrary, the structure of Rule 29 indicates that subdivision (a) is limited as its caption says.Petitioner's proposed reading would create an odd system in which defense counsel could move for judgment of acquittal for only seven days after the jury's discharge, but the court's power to enter such a judgment would linger. In United States v. Smith, 331 U. S. 469 (1947), we declined to read former Federal Rule of Criminal Procedure 33, which placed a 5-day limit on the making of a motion for new trial, as "permit[ting] the judge to order retrial without request and at any time," 331 U. S., at 473. "[I]t would be a strange rule," we said, "which deprived a judge of power to do what was asked when request was made by the person most concerned, and yet allowed him to act without petition," and such an arrangement "would almost certainly subject trial judges to private appeals or application by counselor friends of one convicted," id., at 474, 475. The same is true here.2 In addition, petitioner's reading makes a farce of subdivision (b) of Rule 29, which provides that a court may reserve decision on the motion for judgment of acquittal and decide it after submission to the jury. There would be no need for this procedure if, even without reserving, the court had continuing power to grant judgment of acquittal on its own. In2 The dissent forcefully argues that Smith does not compel the result we reach in this case. Post, at 452-453. That is an effective rejoinder to an argument we have not made. In response to the argument we have made-that some of the considerations supporting the holding in Smith apply here-the dissent (i) ignores the portion of Smith discussing the strangeness of a rule that would give a judge greater power to act sua sponte than on motion; and (ii) transforms Smith's desire to spare trial judges "private appeals or application by counselor friends of the person convicted" into a concern for the "appearance of impropriety" that "ex parte approaches" would create, post, at 453, which concern in the present context (though presumably for some reason not in the Smith context) the dissent regards as "a highly inappropriate comment on the integrity of the federal judiciary," ibid., and the dissent says it was dictum in Smith anyway.423sum, even without the captions (and a fortiori with them) it is clear that subdivisions (a) and (b) of Rule 29 pertain to motions made before submission, and subdivisions (c) and (d) to motions made after discharge.The Government offers an alternative theory of a court's power to act sua sponte under Rule 29: Because Rule 29(a) refers to both a "motion of a defendant" and a court's "own motion," whereas Rule 29(c) refers only to "a motion" simpliciter, the latter must refer to motions both of defendants and of courts, permitting both such "motions" to be made within seven days after the jury's discharge. We do not find this reading plausible. Rule 29(c) not only provides that "a motion for judgment of acquittal" may be made or renewed within seven days after the jury is discharged. It goes on to provide, in its second and third sentences: "If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned the court may enter judgment of acquittal." The phrase "on such motion" is notably absent from the third sentence-conveying the idea that, where a jury has not returned a verdict, a court can act without motion, but where a jury has returned a guilty verdict, it cannot. But if "on such motion" includes action taken by a court on its own initiative, the limiting phrase "on such motion" in the second sentence has no effect, and a court may act on its own whether or not a verdict has been returned. That is to say, the inclusion of the phrase "on such motion" in one sentence but not in the other would be inexplicable.33 Perhaps even more inexplicable is what precisely would be achieved by the Government's reading, which (unlike petitioner's theories) would permit the court to act sua sponte only during the 7-day period specified by the Rule (or any extension thereof ordered by the court during the 7-day period, as Rule 29(c) allows). The sole beneficiary of the Government's textual contortions is the district judge who wants to set aside a verdict, but lacks the wit to invite a motion for that during the 7-day period, or (if defendant's counsel is unavailable) to extend the 7-day period,424Petitioner contends that even if Rule 29 does not permit a court to grant an untimely motion for judgment of acquittal, Federal Rule of Criminal Procedure 2 vests the court with supervisory power to enter judgment of acquittal. Rule 2 provides:"These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay."This Rule is of no aid to petitioner. It sets forth a principle of interpretation to be used in construing ambiguous rules, not a principle of law superseding clear rules that do not achieve the stated objectives. It does not, that is to say, provide that rules shall be construed to mean something other than what they plainly say-which is what petitioner's proposed construction of Rule 29(c) would require.We must acknowledge that there is precedent in this Court for using Rule 2 as a basis for deviating from time limits imposed by the Federal Rules of Criminal Procedure. In Fallen v. United States, 378 U. S. 139 (1964), we cited Rule 2 in the course of excusing the failure of an incarcerated paraplegic pro se petitioner to comply with the time limit for filing a notice of appeal under former Federal Rule of Criminal Procedure 37(a). Concluding that the petitioner "had done all that could reasonably be expected" to file a timely appeal, including mailing a notice of appeal to the clerk's office two days before the notice was due, we "decline[d] to read the Rules so rigidly as to bar a determination of his appeal on the merits." 378 U. S., at 144. Fallen has been made obsolete by an amendment to Rule 37(a).4 Andsua sponte, in order to invite such a motion later. It is our hope and belief that no such district judge exists.4 Rule 37(a) was amended in 1966 to provide that a district court may extend the time for filing a notice of appeal "[u]pon a showing of excusable425of course Fallen was a narrow ruling when it was announced, as is evident from Berman v. United States, 378 U. S. 530 (1964) (per curiam), a decision announced on the same day as Fallen, summarily affirming the dismissal of an appeal that had been filed one day late.Finally, petitioner cannot rely on Federal Rule of Criminal Procedure 57 as the source of the District Court's authority in this case. The version of Rule 57 in effect when criminal proceedings against petitioner commenced (and which he relied upon at oral argument) states, in relevant part, that, "[i]n all cases not provided for by rule, the district judges ... may regulate their practice in any manner not inconsistent with these rules." The relevant portion of the current version of Rule 57 is captioned "Procedure When There Is No Controlling Law," and states: "A judge may regulate practice in any manner consistent with federal law, these rules, and local rules of the district." Fed. Rule Crim. Proc. 57(b). We need not decide which version of this Rule controls the present case, because neither authorizes the District Court's action here. A rule permitting a party to submit and prevail on an untimely motion for judgment of acquittal is "inconsistent" (or not "consistent") with Rule 29's 7 -day filing limit; and the question of when a motion for judgment of acquittal may be granted does not present a case "not provided for" by Rule 29; and Rule 29 is the "controlling law" governing this question.IIIAs alternative authority for the District Court's action, petitioner invokes courts' "inherent supervisory power." Brief for Petitioner 9. We have recognized that federalneglect." See Fed. Rule Crim. Proc. 37(a) (1966). When Rule 37(a) was abrogated and replaced by Federal Rule of Appellate Procedure 4(b), the substance of this amendment was transferred to Rule 4(b). See Fed. Rule App. Proc. 4(b) (1968).426courts "may, within limits, formulate procedural rules not specifically required by the Constitution or the Congress." United States v. Hasting, 461 U. S. 499, 505 (1983). Whatever the scope of this "inherent power," however, it does not include the power to develop rules that circumvent or conflict with the Federal Rules of Criminal Procedure. As we recognized in Bank of Nova Scotia v. United States, 487 U. S. 250, 254-255 (1988), holding that federal courts may not invoke supervisory power to circumvent Rule 52(a): "[F]ederal courts have no more discretion to disregard the Rule's mandate than they do to disregard constitutional or statutory provisions." Whether the action of the District Court here is described as the granting of an untimely motion, or the sua sponte entry of a judgment of acquittal, it contradicted the plain language of Rule 29(c), and effectively annulled the 7 -day filing limit.In Chambers v. NASCO, Inc., 501 U. S. 32, 47 (1991), we said that we would not "'lightly assume that Congress has intended to depart from established principles' such as the scope of a court's inherent power," id., at 47 (quoting Weinberger v. Romero-Barcelo, 456 U. S. 305, 313 (1982)). Similarly, in Link v. Wabash R. Co., 370 U. S. 626, 629-632 (1962), we said that since a district court's authority to dismiss sua sponte for lack of prosecution was a "sanction of wide usage," we would not assume, in the absence of a clear expression, that Federal Rule of Civil Procedure 41(b), which allowed a party to move for dismissal for lack of prosecution, abrogated this "long ... unquestioned" power. That cautionary principle does not apply in the present case, not only because of the clarity of the text, but also because we are unaware of any "long unquestioned" power of federal district courts to acquit for insufficient evidence sua sponte, after return of a guilty verdict. Indeed, we are aware of only two cases prior to the enactment of the Federal Rules of Criminal Procedure that could be read as asserting in dictum the existence of427such a power. United States v. McCracken, 26 F. Cas. 1069, 1069 (No. 15,664) (ED Va. 1878); United States v. Hayden, 26 F. Cas. 236, 238 (No. 15,333) (NDNY 1877).55 The dissent's extended discussion of pre-Rule federal cases produces a lot of smoke, and no fire. Ansley v. United States, 135 F.2d 207, 208 (CA5 1943), described by the dissent as "establishing a district court's inherent power to review sua sponte a jury verdict for sufficiency of the evidence," post, at 446, establishes no such thing. There, after noting the appellants' failure to renew their motions for directed verdict at the close of evidence, the Fifth Circuit said:"[T]he question of the sufficiency of the evidence was not properly saved for review by this court. It is true that the question may and should be raised by the court of its own motion, if necessary to prevent a miscarriage of justice, but this is not such a case. We have examined the record, and have found it to contain ample evidence to support the judgment." 135 F. 2d, at 208.It is obvious that the statement "the question may and should be raised by the court of its own motion" refers to the power of an appellate court to review sufficiency of the evidence where the issue has not been preserved for appeal. The cases cited by the dissent deal with the power of a district court to enter a judgment of acquittal before the return of a verdict (i. e., to direct a verdict of acquittal), see Cady v. United States, 293 F.8d 9 (CADC 1923); Nosowitz v. United States, 282 F.5d 5, 578 (CA2 1922); United States v. Fullerton, 25 F. Cas. 1225 (No. 15,176) (SDNY 1870); the power of a district court to set aside a verdict and order a new trial, see Wiborg v. United States, 163 U. S. 632, 658-659 (1896); United States v. Harding, 26 F. Cas. 131, 136 (No. 15,301) (ED Pa. 1846); cf. Charles v. State, 4 Port. 107, 109-110 (Ala. 1836); the power of a district court to enter judgment of acquittal where the defendant has made a preverdict or postverdict motion to acquit, see Ex parte United States, 101 F.2d 870, 878 (CA7 1939), aff'd by an equally divided Court, United States v. Stone, 308 U. S. 519 (1939); United States v. Standard Oil Co., 23 F. Supp. 937, 938-939 (WD Wis. 1938); cf. State v. Meen, 171 Wis. 36, 38-39 (1920); and even the power of an appellate court to reverse a district court's denial of a motion for directed verdict, see Nosowitz, supra, at 578; Cherry v. United States, 78 F.2d 334 (CA7 1935); Reiner v. United States, 92 F.2d 823, 824-825 (CA9 1937); France v. United States, 164 U. S. 676, 680 (1897); Romano v. United States, 9 F.2d 522, 524 (CA2 1925). Not a single pre-Rule case cited by the dissent purports to exercise the power at issue here: a district court's power to enter judgment of acquittal for insufficient evidence, without motion, and after the return of a guilty428The case law of this Court that petitioner relies upon does not establish any "inherent power" to act in contravention of applicable Rules. In Gaca v. United States, 411 U. S. 618 (1973) (per curiam), which reinstated an appeal that had been dismissed for want of timely prosecution, there was no suggestion that reinstatement was contrary to any statute or rule of procedure. And in United States v. Nobles, 422 U. S. 225 (1975), which approved exercise of a District Court's inherent authority to order the disclosure of certain witness statements, we felt it necessary to make sure that such exercise did not conflict with Federal Rule of Criminal Procedure 16. Petitioner's best case is Thompson v. INS, 375 U. S. 384 (1964), which, contrary to former Federal Rule of Civil Procedure 73(a), gave effect to a notice of appeal filed more than 60 days from the entry of judgment. Thompson, however, is not pertinent here, since it expressly relied upon the "'unique circumstances'" that the cause of the failure to meet the Rule's deadline was an erroneous ruling or assurance by the District Court itself. 375 U. S., at 387 (quoting Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U. S. 215, 217 (1962) (per curiam)).IVPetitioner's three remaining arguments need not detain us long. First, he argues that the District Court had power to enter a judgment of acquittal in this case under the All Writs Act, 28 U. S. C. § 1651, through the writ of coram nobis. Apart from the fact that the District Court was not asked toverdict. The dissent apparently thinks it an adequate explanation for this lack of support that, prior to our decision in United States v. Smith, 331 U. S. 469, 474 (1947) (suggesting that sua sponte grant of a new trial may raise double jeopardy concerns), district courts could order new trials where there was insufficient evidence to sustain the jury verdict. Post, at 442-443. But if these district courts truly had latent inherent power to enter a judgment of acquittal, surely at least some of them would have been willing to give a legally innocent defendant that to which he was entitled-viz., a judgment of acquittal-rather than just a new trial.429issue, and did not purport to be issuing, a writ of coram nobis, that writ would not have lain here, since it was traditionally available only to bring before the court factual errors "material to the validity and regularity of the legal proceeding itself," such as the defendant's being under age or having died before the verdict. See United States v. Mayer, 235 U. S. 55, 67-68 (1914). Moreover, "[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U. S. 34, 43 (1985). As we noted a few years after enactment of the Federal Rules of Criminal Procedure, "it is difficult to conceive of a situation in a federal criminal case today where [a writ of coram nobis] would be necessary or appropriate." United States v. Smith, 331 U. S., at 475, n. 4. In the present case, Rule 29 provides the applicable law.Second, petitioner asserts that the failure to allow the District Court to enter a judgment of acquittal would violate the Due Process Clause of the Fifth Amendment. His argument on this point consists of nothing more than bald assertions that Rule 29(c) as applied to the facts of this case transgresses principles of fundamental fairness, "shocks the conscience," and interferes with rights "implicit in the concept of ordered liberty." Brief for Petitioner 28-29 (internal quotation marks omitted) (citing Herrera v. Collins, 506 U. S. 390 (1993); Rochin v. California, 342 U. S. 165, 172 (1952); Palko v. Connecticut, 302 U. S. 319, 325-326 (1937)). Petitioner has failed to proffer any historical, textual, or controlling precedential support for his argument that the inability of a district court to grant an untimely postverdict motion for judgment of acquittal violates the Fifth Amendment, and we decline to fashion a new due process right out of thin air.430Third, petitioner argues that prohibiting a district court from granting a motion for judgment of acquittal filed one day late will lead to needless appeals and habeas corpus proceedings, where it will be more difficult for defendants to obtain relief than in motions directed to the trial court. Assuming, arguendo, that these contentions are accurate, we cannot permit them to alter our analysis, for we are not at liberty to ignore the mandate of Rule 29 in order to obtain "optimal" policy results. Cf. United States v. Robinson, 361 U. S. 220, 229-230 (1960). We are similarly unmoved by petitioner's contention that the "rationale" behind Rule 29(c)'s time limit does not apply where the motion for judgment of acquittal is filed a mere eight days after the trial. The only evident "rationale" behind Rule 29(c)'s 7-day time limit is that a motion for judgment of acquittal filed eight days after trial is a motion filed one day later than justice and equity demand. As we said in a case involving the filing deadline of the Federal Land Policy and Management Act of 1976, 43 U. S. C. § 1744 (1988 ed.): "If i-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." United States v. Locke, 471 U. S. 84, 101 (1985).vFinally, we may respond to some of the many arguments put forward by the dissent. The dissent makes the sweeping assertion that "a district court clearly has the inherent authority to ensure that a legally innocent defendant is not wrongfully convicted," post, at 442. Perhaps so. As the dissent itself recognizes, however, that power has come to an end once an appeal has been taken. Post, at 452-453. We are in accord, then, that there is some point at which the district court is rendered powerless to enter a judgment of acquittal, and the disagreement between us and the dissent431comes down to nothing more cosmic than the question of timing-which we find answered by the text of Rule 29.In an effort to explain why, if a Rule 29(c) motion is in any event unnecessary, it makes any sense to impose a 7 -day deadline upon the making of it, the dissent maintains that the untimeliness of a motion gives a district court discretion to ignore it. Post, at 445. This presents the disedifying prospect of a court vested with "the inherent authority to ensure that a legally innocent defendant is not wrongfully convicted," post, at 442, exercising its discretion to let an innocent defendant be wrongfully convicted. Quite obviously, this explanation of the deadline is incompatible with the premise that underlies the dissent's entire argument. As for the dissent's concern, post, at 448, that our decision runs afoul of Rule 2's mandate that the rules "be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay": We see neither simplicity, nor fairness, nor elimination of delay in a regime that makes it discretionary whether an untimely motion for judgment of acquittal will be entertained.The dissent asserts that "permissive rules do not withdraw pre-existing inherent powers." Post, at 452. That assertion is really not relevant to the present case since, as we have discussed, the power to enter postverdict judgments of acquittal sua sponte was not a "pre-existing inherent power." See supra, at 426-428, and n. 5. But besides the lack of factual predicate for its application here, the principle the dissent proposes would produce some extraordinary consequences. For example, as the cases cited by the dissent illustrate, see post, at 439-440, courts previously have ordered new trials sua sponte. Federal Rule of Criminal Procedure 33, however, provides that "[t]he court on motion of a defendant may grant a new trial .... " Following the dissent's logic, Rule 33, being permissive, does not preclude a court from granting a new trial without motion, thereby leaving open to the court a course of action that may well432violate the Double Jeopardy Clause. But see Advisory Committee's Notes on 1966 Amendment of Fed. Rule Crim. Proc. 33, 18 U. S. C. App., p. 801 ("The amendments to the first two sentences make it clear that a judge has no power to order a new trial on his own motion, that he can act only in response to a motion timely made by a defendant. Problems of double jeopardy arise when the court acts on its own motion"). Similarly, a pre-existing practice, if there was one, would allow a subpoena to be served by a party or a minor despite Federal Rule of Criminal Procedure 17(d) ("A subpoena may be served by the marshal, by a deputy marshal or by any other person who is not a party and who is not less than 18 years of age"); would allow a judge from another district to take over a jury trial from a disabled judge despite Federal Rule of Criminal Procedure 25(a) ("If ... the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge regularly sitting in or assigned to the court ... may proceed with and finish the trial"); and would allow a court to correct a technical error in a sentence more than seven days after the imposition of the sentence, despite Federal Rule of Criminal Procedure 35(c) ("The court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error").The decisions of Justice Harlan relied upon by the dissent to support the proposition that permissive rules do not eliminate inherent powers are not germane. We have discussed Link above, see supra, at 426. In United States v. Ohio Power Co., 353 U. S. 98, 104 (1957), Justice Harlan noted that this Court has proceeded on the assumption that we have inherent authority to "affect judgments by action which would otherwise be out of time under [our own] Rules." That statement would be relevant if the present case involved a district court's departure from one of its own rules-which of course it does not. In Fernandez v. United433States, 81 S. Ct. 642 (1961), 5 L. Ed. 2d 683 (Harlan, J., in chambers), Justice Harlan recognized that the provision of former Federal Rule of Criminal Procedure 46(a) that a "person arrested for an offense not punishable by death shall be admitted to bail" (emphasis added) did not withdraw district courts' authority to revoke bail in a noncapital case. Fernandez, supra, at 644, and n. 7, 5 L. Ed. 2d, at 685, and n. 7. What admitting to bail implies with respect to revocation of bail is not comparable to what granting judgment on motion implies with respect to granting judgment without motion. What the dissent needs, in the Fernandez context, is a case holding that a statute which permits bail for "persons arrested for noncapital offenses" does not preclude bail for persons arrested for capital offenses. Of course, such a case will not be found.Finally, the dissent contends that United States v. Sisson, 399 U. S. 267 (1970), supports existence of the "inherent power" petitioner invokes. See post, at 448-449. We think not. Sisson did not "implicitly conclude" that it was proper to enter a postverdict judgment of acquittal without motion, because the propriety of the judgment of acquittal was irrelevant to the decision. The only issue was whether the judgment appealed from was a judgment of acquittal (proper or improper), because that would mean that the Government's appeal under the former 18 U. S. C. § 3731 (which did not apply to judgments of acquittal) must be dismissed. See United States v. Wilson, 420 U. S. 332, 351 (1975) (appeal in Sisson "was barred solely by the statute").***We conclude that the District Court had no authority to grant petitioner's motion for judgment of acquittal filed one day outside the time limit prescribed by Rule 29(c). We therefore affirm the judgment of the Sixth Circuit.It is so ordered

OCTOBER TERM, 1995SyllabusCARLISLE v. UNITED STATESCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUITNo. 94-9247. Argued January 16, 1996-Decided April 29, 1996At his trial on a federal marijuana charge, petitioner filed his motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29(c) after the jury returned a guilty verdict and was discharged. The District Court granted the motion even though it was filed one day outside the time limit prescribed by Rule 29(c), which provides, inter alia, that "[i]f the jury returns a verdict of guilty ... , a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7-day period." In reversing and remanding for reinstatement of the verdict and for sentencing, the Sixth Circuit held that under Rule 29 a district court has no jurisdiction to grant an untimely motion for judgment of acquittal, or to enter such a judgment sua sponte after submission of the case to the jury.Held: The District Court had no authority to grant petitioner's motion for judgment of acquittal filed one day outside the Rule 29(c) time limit. Pp.419-433.(a) The Rules do not permit the granting of an untimely postverdict motion for judgment of acquittal. Rule 29(c)'s text, when read with Rule 45(b)'s statement that "the court may not extend the time for taking any action under Rul[e] 29 ... except to the extent and under the conditions stated in [the Rule]," is plain and unambiguous: If, as in this case, a guilty verdict is returned, a motion for judgment of acquittal must be filed either within seven days of the jury's discharge or within an extended period fixed by the court during that 7-day period. Furthermore, in light of Rule 29(c)'s clarity, petitioner cannot rely either on Rule 2, which requires that ambiguous Rules "be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay," or on Rule 57, which allows district courts discretion to regulate practice when there is no controlling law. Pp. 419-425.(b) This Court rejects petitioner's invocation of courts' "inherent supervisory power" as alternative authority for the District Court's action. Whatever the scope of federal courts' inherent power to formulate procedural rules not specifically required by the Constitution or the Congress, it does not include the power to develop rules that circumvent or conflict with the Federal Rules of Criminal Procedure.417See, e. g., Bank of Nova Scotia v. United States, 487 U. S. 250, 254-255. Whether the District Court's action is described as the granting of an untimely motion, or the sua sponte entry of a judgment of acquittal, it contradicted Rule 29(c)'s plain language and effectively annulled the 7-day filing limit. The cautionary principle that the Court will not lightly assume that the Rules mean to depart from established principles does not apply in this case, because prior to the enactment of Rule 29, there was no long, unquestioned power of federal district courts to acquit for insufficient evidence sua sponte, after return of a guilty verdict. Pp. 425-428.(c) The Court also rejects petitioner's remaining arguments: (1) that the District Court had power to order acquittal in this case under the All Writs Act, 28 U. S. C. § 1651, through the writ of coram nobis; (2) that the failure to allow the District Court to order acquittal would violate the Fifth Amendment's Due Process Clause; and (3) that prohibiting a district court from granting an acquittal motion filed only one day late will lead to needless appeals and habeas corpus proceedings. pp. 428-430.(d) The Court rebuts arguments put forward by the dissent, including the proposition that permissive rules do not withdraw pre-existing inherent powers, and the dissent's reliance on this Court's precedents to support the existence of the "inherent power" petitioner invokes. pp. 430-433.48 F.3d 190, affirmed.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion, post, p. 434. GINSBURG, J., filed a concurring opinion, in which SOUTER and BREYER, JJ., joined, post, p. 434. STEVENS, J., filed a dissenting opinion, in which KENNEDY, J., joined, post, p. 436.James A. Christopherson argued the cause and filed briefs for petitioner. With him on the briefs was Joel R. Myler.Paul A. Engelmayer argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, and David S. Kris.JUSTICE SCALIA delivered the opinion of the Court.This case presents the question whether a district court has authority to grant a postverdict motion for judgment of418Full Text of Opinion

1991_90-1278

their estate plans, indicated that they would transfer their shares to Unilever only if a transaction tax free for them could be arranged.Lawyers representing both sides devised a "reverse subsidiary cash merger" that they felt would satisfy the Greenwalls' concerns. Two new entities would be created-National Starch and Chemical Holding Corp. (Holding), a subsidiary of Unilever, and NSC Merger, Inc., a subsidiary of Holding that would have only a transitory existence. In an exchange specifically designed to be tax free under § 351 of the Internal Revenue Code, 26 U. S. C. § 351, Holding would exchange one share of its nonvoting preferred stock for each share of National Starch common that it received from National Starch shareholders. Any National Starch common that was not so exchanged would be converted into cash in a merger of NSC Merger, Inc., into National Starch.In November 1977, National Starch's directors were formally advised of Unilever's interest and the proposed transaction. At that time, Debevoise, Plimpton, Lyons & Gates, National Starch's counsel, told the directors that under Delaware law they had a fiduciary duty to ensure that the proposed transaction would be fair to the shareholders. N ational Starch thereupon engaged the investment banking firm of Morgan Stanley & Co., Inc., to evaluate its shares, to render a fairness opinion, and generally to assist in the event of the emergence of a hostile tender offer.Although Unilever originally had suggested a price between $65 and $70 per share, negotiations resulted in a final offer of $73.50 per share, a figure Morgan Stanley found to be fair. Following approval by National Starch's board and the issuance of a favorable private ruling from the Internal Revenue Service that the transaction would be tax free under §351 for those National Starch shareholders who ex-82changed their stock for Holding preferred, the transaction was consummated in August 1978.2Morgan Stanley charged National Starch a fee of $2,200,000, along with $7,586 for out-of-pocket expenses and $18,000 for legal fees. The Debevoise firm charged National Starch $490,000, along with $15,069 for out-of-pocket expenses. National Starch also incurred expenses aggregating $150,962 for miscellaneous items-such as accounting, printing, proxy solicitation, and Securities and Exchange Commission fees-in connection with the transaction. No issue is raised as to the propriety or reasonableness of these charges.On its federal income tax return for its short taxable year ended August 15, 1978, National Starch claimed a deduction for the $2,225,586 paid to Morgan Stanley, but did not deduct the $505,069 paid to Debevoise or the other expenses. Upon audit, the Commissioner of Internal Revenue disallowed the claimed deduction and issued a notice of deficiency. Petitioner sought redetermination in the United States Tax Court, asserting, however, not only the right to deduct the investment banking fees and expenses but, as well, the legal and miscellaneous expenses incurred.The Tax Court, in an unreviewed decision, ruled that the expenditures were capital in nature and therefore not deductible under § 162(a) in the 1978 return as "ordinary and necessary expenses." National Starch and Chemical Corp. v. Commissioner, 93 T. C. 67 (1989). The court based its holding primarily on the long-term benefits that accrued to National Starch from the Unilever acquisition. Id., at 75. The United States Court of Appeals for the Third Circuit affirmed, upholding the Tax Court's findings that "both Unilever's enormous resources and the possibility of synergy arising from the transaction served the long-term better-2 Approximately 21% of National Starch common was exchanged for Holding preferred. The remaining 79% was exchanged for cash. App. 14.83ment of National Starch." National Starch & Chemical Corp. v. Commissioner, 918 F.2d 426, 432-433 (1990). In so doing, the Court of Appeals rejected National Starch's contention that, because the disputed expenses did not "create or enhance ... a separate and distinct additional asset," see Commissioner v. Lincoln Savings & Loan Assn., 403 U. S. 345, 354 (1971), they could not be capitalized and therefore were deductible under § 162(a). 918 F. 2d, at 428-431. We granted certiorari to resolve a perceived conflict on the issue among the Courts of Appeals.3 500 U. S. 914 (1991).IISection 162(a) of the Internal Revenue Code allows the deduction of "all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business." 26 U. S. C. § 162(a). In contrast, § 263 of the Code allows no deduction for a capital expenditure-an "amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate." § 263(a)(1). The primary effect of characterizing a payment as either a business expense or a capital expenditure concerns the timing of the taxpayer's cost recovery: While business expenses are currently deductible, a capital expenditure usually is amortized and depreci-3 Compare the Third Circuit's opinion, 918 F. 2d, at 430, with NCNB Corp. v. United States, 684 F.2d 285, 293-294 (CA4 1982) (bank expenditures for expansion-related planning reports, feasibility studies, and regulatory applications did not "create or enhance separate and identifiable assets," and therefore were ordinary and necessary expenses under § 162(a)), and Briarcliff Candy Corp. v. Commissioner, 475 F.2d 775, 782 (CA2 1973) (suggesting that Lincoln Savings "brought about a radical shift in emphasis," making capitalization dependent on whether the expenditure creates or enhances a separate and distinct additional asset). See also Central Texas Savings & Loan Assn. v. United States, 731 F.2d 1181, 1184 (CA5 1984) (inquiring whether establishment of new branches "creates a separate and distinct additional asset" so that capitalization is the proper tax treatment).84ated over the life of the relevant asset, or, where no specific asset or useful life can be ascertained, is deducted upon dissolution of the enterprise. See 26 U. S. C. §§ 167(a) and 336(a); Treas. Reg. § 1.167(a), 26 CFR § 1.167(a) (1991). Through provisions such as these, the Code endeavors to match expenses with the revenues of the taxable period to which they are properly attributable, thereby resulting in a more accurate calculation of net income for tax purposes. See, e. g., Commissioner v. Idaho Power Co., 418 U. S. 1, 16 (1974); Ellis Banking Corp. v. Commissioner, 688 F.2d 1376, 1379 (CAll 1982), cert. denied, 463 U. S. 1207 (1983).In exploring the relationship between deductions and capital expenditures, this Court has noted the "familiar rule" that "an income tax deduction is a matter of legislative grace and that the burden of clearly showing the right to the claimed deduction is on the taxpayer." Interstate Transit Lines v. Commissioner, 319 U. S. 590, 593 (1943); Deputy v. Du Pont, 308 U. S. 488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U. S. 435, 440 (1934). The notion that deductions are exceptions to the norm of capitalization finds support in various aspects of the Code. Deductions are specifically enumerated and thus are subject to disallowance in favor of capitalization. See §§ 161 and 261. Nondeductible capital expenditures, by contrast, are not exhaustively enumerated in the Code; rather than providing a "complete list of nondeductible expenditures," Lincoln Savings, 403 U. S., at 358, § 263 serves as a general means of distinguishing capital expenditures from current expenses. See Commissioner v. Idaho Power Co., 418 U. S., at 16. For these reasons, deductions are strictly construed and allowed only "as there is a clear provision therefor." New Colonial Ice Co. v. Helvering, 292 U. S., at 440; Deputy v. Du Pont, 308 U. S., at 493.44 See also Johnson, The Expenditures Incurred by the Target Corporation in an Acquisitive Reorganization are Dividends to the Shareholders, 53 Tax Notes 463, 478 (1991) (noting the importance of a "strong law of capitalization" to the tax system).85The Court also has examined the interrelationship between the Code's business expense and capital expenditure provisions.5 In so doing, it has had occasion to parse § 162(a) and explore certain of its requirements. For example, in Lincoln Savings, we determined that, to qualify for deduction under § 162(a), "an item must (1) be 'paid or incurred during the taxable year,' (2) be for 'carrying on any trade or business,' (3) be an 'expense,' (4) be a 'necessary' expense, and (5) be an 'ordinary' expense." 403 U. S., at 352. See also Commissioner v. Tellier, 383 U. S. 687, 689 (1966) (the term "necessary" imposes "only the minimal requirement that the expense be 'appropriate and helpful' for 'the development of the [taxpayer's] business,'" quoting Welch v. Helvering, 290 U. S. 111, 113 (1933)); Deputy v. Du Pont, 308 U. S., at 495 (to qualify as "ordinary," the expense must relate to a transaction "of common or frequent occurrence in5 See, e. g., Commissioner v. Idaho Power Co., 418 U. S. 1 (1974) (equipment depreciation allocable to construction of capital facilities is to be capitalized); United States v. Mississippi Chemical Corp., 405 U. S. 298 (1972) (cooperatives' required purchases of stock in Bank for Cooperatives are not currently deductible); Commissioner v. Lincoln Savings & Loan Assn., 403 U. S. 345 (1971) (additional premiums paid by bank to federal insurers are capital expenditures); Woodward v. Commissioner, 397 U. S. 572 (1970) (legal, accounting, and appraisal expenses incurred in purchasing minority stock interest are capital expenditures); United States v. Hilton Hotels Corp., 397 U. S. 580 (1970) (consulting, legal, and other professional fees incurred by acquiring firm in minority stock appraisal proceeding are capital expenditures); Commissioner v. Tellier, 383 U. S. 687 (1966) (legal expenses incurred in defending against securities fraud charges are deductible under § 162(a)); Commissioner v. Heininger, 320 U. S. 467 (1943) (legal expenses incurred in disputing adverse postal designation are deductible as ordinary and necessary expenses); Interstate Transit Lines v. Commissioner, 319 U. S. 590 (1943) (payment by parent company to cover subsidiary's operating deficit is not deductible as a business expense); Depnty v. Du Pont, 308 U. S. 488 (1940) (expenses incurred by shareholder in helping executives of company acquire stock are not deductible); Helvering v. Winmill, 305 U. S. 79 (1938) (brokerage commissions are capital expenditures); Welch v. Helvering, 290 U. S. 111 (1933) (payments of former employer's debts are capital expenditures).86the type of business involved"). The Court has recognized, however, that the "decisive distinctions" between current expenses and capital expenditures "are those of degree and not of kind," Welch v. Helvering, 290 U. S., at 114, and that because each case "turns on its special facts," Deputy v. Du Pont, 308 U. S., at 496, the cases sometimes appear difficult to harmonize. See Welch v. Helvering, 290 U. S., at 116.National Starch contends that the decision in Lincoln Savings changed these familiar backdrops and announced an exclusive test for identifying capital expenditures, a test in which "creation or enhancement of an asset" is a prerequisite to capitalization, and deductibility under § 162(a) is the rule rather than the exception. Brief for Petitioner 16. We do not agree, for we conclude that National Starch has overread Lincoln Savings.In Lincoln Savings, we were asked to decide whether certain premiums, required by federal statute to be paid by a savings and loan association to the Federal Savings and Loan Insurance Corporation (FSLIC), were ordinary and necessary expenses under § 162(a), as Lincoln Savings argued and the Court of Appeals had held, or capital expenditures under § 263, as the Commissioner contended. We found that the "additional" premiums, the purpose of which was to provide FSLIC with a secondary reserve fund in which each insured institution retained a pro rata interest recoverable in certain situations, "serv[e] to create or enhance for Lincoln what is essentially a separate and distinct additional asset." 403 U. S., at 354. "[A]s an inevitable consequence," we concluded, "the payment is capital in nature and not an expense, let alone an ordinary expense, deductible under § 162(a)." Ibid.Lincoln Savings stands for the simple proposition that a taxpayer's expenditure that "serves to create or enhance ... a separate and distinct" asset should be capitalized under § 263. It by no means follows, however, that only expenditures that create or enhance separate and distinct assets are87to be capitalized under § 263. We had no occasion in Lincoln Savings to consider the tax treatment of expenditures that, unlike the additional premiums at issue there, did not create or enhance a specific asset, and thus the case cannot be read to preclude capitalization in other circumstances. In short, Lincoln Savings holds that the creation of a separate and distinct asset well may be a sufficient, but not a necessary, condition to classification as a capital expenditure. See General Bancshares Corp. v. Commissioner, 326 F.2d 712, 716 (CA8) (although expenditures may not "resul[t] in the acquisition or increase of a corporate asset, ... these expenditures are not, because of that fact, deductible as ordinary and necessary business expenses"), cert. denied, 379 U. S. 832 (1964).Nor does our statement in Lincoln Savings, 403 U. S., at 354, that "the presence of an ensuing benefit that may have some future aspect is not controlling" prohibit reliance on future benefit as a means of distinguishing an ordinary business expense from a capital expenditure.6 Although the mere presence of an incidental future benefit-"some future aspect" -may not warrant capitalization, a taxpayer's realization of benefits beyond the year in which the expenditure is incurred is undeniably important in determining whether the appropriate tax treatment is immediate deduction or capitalization. See United States v. Mississippi Chemical Corp., 405 U. S. 298, 310 (1972) (expense that "is of value in more than one taxable year" is a nondeductible capital expenditure); Central Texas Savings & Loan Assn. v. United States, 731 F.2d 1181, 1183 (CA5 1984) ("While the period of the benefits may not be controlling in all cases, it nonetheless6 Petitioner contends that, absent a separate-and-distinct-asset requirement for capitalization, a taxpayer will have no "principled basis" upon which to differentiate business expenses from capital expenditures. Brief for Petitioner 37-41. We note, however, that grounding tax status on the existence of an asset would be unlikely to produce the bright-line rule that petitioner desires, given that the notion of an "asset" is itself flexible and amorphous. See Johnson, 53 Tax Notes, at 477-478.88remains a prominent, if not predominant, characteristic of a capital item"). Indeed, the text of the Code's capitalization provision, § 263(a)(1), which refers to "permanent improvements or betterments," itself envisions an inquiry into the duration and extent of the benefits realized by the taxpayer.IIIIn applying the foregoing principles to the specific expenditures at issue in this case, we conclude that National Starch has not demonstrated that the investment banking, legal, and other costs it incurred in connection with Unilever's acquisition of its shares are deductible as ordinary and necessary business expenses under § 162(a).Although petitioner attempts to dismiss the benefits that accrued to National Starch from the Unilever acquisition as "entirely speculative" or "merely incidental," Brief for Petitioner 39-40, the Tax Court's and the Court of Appeals' findings that the transaction produced significant benefits to N ational Starch that extended beyond the tax year in question are amply supported by the record. For example, in commenting on the merger with Unilever, National Starch's 1978 "Progress Report" observed that the company would "benefit greatly from the availability of Unilever's enormous resources, especially in the area of basic technology." App. 43. See also id., at 46 (Unilever "provides new opportunities and resources"). Morgan Stanley's report to the National Starch board concerning the fairness to shareholders of a possible business combination with Unilever noted that National Starch management "feels that some synergy may exist with the Unilever organization given a) the nature of the Unilever chemical, paper, plastics and packaging operations ... and b) the strong consumer products orientation of Unilever United States, Inc." Id., at 77-78.In addition to these anticipated resource-related benefits, National Starch obtained benefits through its transformation from a publicly held, freestanding corporation into a wholly89owned subsidiary of U nilever. The Court of Appeals noted that National Starch management viewed the transaction as " 'swapping approximately 3500 shareholders for one.'" 918 F. 2d, at 427; see also App. 223. Following Unilever's acquisition of National Starch's outstanding shares, National Starch was no longer subject to what even it terms the "substantial" shareholder-relations expenses a publicly traded corporation incurs, including reporting and disclosure obligations, proxy battles, and derivative suits. Brief for Petitioner 24. The acquisition also allowed National Starch, in the interests of administrative convenience and simplicity, to eliminate previously authorized but unissued shares of preferred and to reduce the total number of authorized shares of common from 8,000,000 to 1,000. See 93 T. C., at 74.Courts long have recognized that expenses such as these, "'incurred for the purpose of changing the corporate structure for the benefit of future operations are not ordinary and necessary business expenses.'" General Bancshares Corp. v. Commissioner, 326 F. 2d, at 715 (quoting Farmers Union Corp. v. Commissioner, 300 F.2d 197, 200 (CA9), cert. denied, 371 U. S. 861 (1962)). See also B. Bittker & J. Eustice, Federal Income Taxation of Corporations and Shareholders 5-33 to 5-36 (5th ed. 1987) (describing "well-established rule" that expenses incurred in reorganizing or restructuring corporate entity are not deductible under § 162(a)). Deductions for professional expenses thus have been disallowed in a wide variety of cases concerning changes in corporate structure. 7 Although support for these decisions can be7See, e. g., McCrory Corp. v. United States, 651 F.2d 828 (CA2 1981) (statutory merger under 26 U. S. C. § 368(a)(1)(A)); Bilar Tool & Die Corp. v. Commissioner, 530 F.2d 708 (CA6 1976) (division of corporation into two parts); E. I. du Pont de Nemours & Co. v. United States, 432 F. 2d 1052 (CA3 1970) (creation of new subsidiary to hold assets of prior joint venture); General Bancshares Corp. v. Commissioner, 326 F.2d 712, 715 (CA8) (stock dividends), cert. denied, 379 U. S. 832 (1964); Mills Estate, Inc. v. Commissioner, 206 F.2d 244 (CA2 1953) (recapitalization).90found in the specific terms of § 162(a), which require that deductible expenses be "ordinary and necessary" and incurred "in carrying on any trade or business," 8 courts more frequently have characterized an expenditure as capital in nature because "the purpose for which the expenditure is made has to do with the corporation's operations and betterment, sometimes with a continuing capital asset, for the duration of its existence or for the indefinite future or for a time somewhat longer than the current taxable year." General Bancshares Corp. v. Commissioner, 326 F. 2d, at 715. See also Mills Estate, Inc. v. Commissioner, 206 F.2d 244, 246 (CA2 1953). The rationale behind these decisions applies equally to the professional charges at issue in this case.IVThe expenses that National Starch incurred in Unilever's friendly takeover do not qualify for deduction as "ordinary and necessary" business expenses under § 162(a). The fact that the expenditures do not create or enhance a separate and distinct additional asset is not controlling; the acquisition-related expenses bear the indicia of capital expenditures and are to be treated as such.The judgment of the Court of Appeals is affirmed.It is so ordered

OCTOBER TERM, 1991SyllabusINDOPCO, INC. v. COMMISSIONER OF INTERNAL REVENUECERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUITNo. 90-1278. Argued November 12, 1991-Decided February 26,1992On its 1978 federal income tax return, petitioner corporation claimed a deduction for certain investment banking fees and expenses that it incurred during a friendly acquisition in which it was transformed from a publicly held, freestanding corporation into a wholly owned subsidiary. After respondent Commissioner disallowed the claim, petitioner sought reconsideration in the Tax Court, adding to its claim deductions for legal fees and other acquisition-related expenses. The Tax Court ruled that because long-term benefits accrued to petitioner from the acquisition, the expenditures were capital in nature and not deductible under § 162(a) of the Internal Revenue Code as "ordinary and necessary" business expenses. The Court of Appeals affirmed, rejecting petitioner's argument that, because the expenses did not "create or enhance ... a separate and distinct additional asset," see Commissioner v. Lincoln Savings & Loan Assn., 403 U. S. 345, 354, they could not be capitalized under § 263 of the Code.Held: Petitioner's expenses do not qualify for deduction under § 162(a).Deductions are exceptions to the norm of capitalization and are allowed only if there is clear provision for them in the Code and the taxpayer has met the burden of showing a right to the deduction. Commissioner v. Lincoln Savings & Loan Assn., supra, holds simply that the creation of a separate and distinct asset may be a sufficient condition for classification as a capital expenditure, not that it is a prerequisite to such classification. Nor does Lincoln Savings prohibit reliance on future benefit as means of distinguishing an ordinary business expense from a capital expenditure. Although the presence of an incidental future benefit may not warrant capitalization, a taxpayer's realization of benefits beyond the year in which the expenditure is incurred is important in determining whether the appropriate tax treatment is immediate deduction or capitalization. The record in the instant case amply supports the lower courts' findings that the transaction produced significant benefits to petitioner extending beyond the tax year in question. Pp. 83-90.918 F.2d 426, affirmed.BLACKMUN, J., delivered the opinion for a unanimous Court.80Richard J. Hiegel argued the cause for petitioner. With him on the briefs were Geoffrey R. S. Brown, Rory O. Millson, and Richard H. Walker.Kent L. Jones argued the cause for respondent. With him on the brief were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Wallace, Gilbert S. Rothenberg, and Bruce R. Ellisen. *JUSTICE BLACKMUN delivered the opinion of the Court. In this case we must decide whether certain professional expenses incurred by a target corporation in the course of a friendly takeover are deductible by that corporation as "ordinary and necessary" business expenses under § 162(a) of the Internal Revenue Code.IMost of the relevant facts are stipulated. See App. 12, 149. Petitioner INDOPCO, Inc., formerly named National Starch and Chemical Corporation and hereinafter referred to as National Starch, is a Delaware corporation that manufactures and sells adhesives, starches, and specialty chemical products. In October 1977, representatives of Unilever United States, Inc., also a Delaware corporation (Unilever),1 expressed interest in acquiring National Starch, which was one of its suppliers, through a friendly transaction. National Starch at the time had outstanding over 6,563,000 common shares held by approximately 3,700 shareholders. The stock was listed on the New York Stock Exchange. Frank and Anna Greenwall were the corporation's largest shareholders and owned approximately 14.5% of the common. The Greenwalls, getting along in years and concerned about*Timothy J. McCormally and Mary L. Fahey filed a brief for the Tax Executives Institute, Inc., as amicus curiae urging reversal.1 Unilever is a holding company. Its then principal subsidiaries were Lever Brothers Co. and Thomas J. Lipton, Inc.81Full Text of Opinion

1985_84-1361

JUSTICE POWELL delivered the opinion of the Court.In this case we must decide, first, whether the Speedy Trial Clause of the Sixth Amendment [Footnote 1] applies to time during which respondents were neither under indictment nor subjected to any official restraint, and, second, whether certain delays occasioned by interlocutory appeals were properly weighed in assessing respondents' right to a speedy trial. A divided panel of the Court of Appeals for the Ninth Circuit weighed most of the 90 months from the time of respondents' arrests and initial indictment in November, 1975, until the District Court's dismissal of the indictment in May, 1983, towards respondents' claims under the Speedy Trial Clause. We conclude that the time that no indictment was outstanding against respondents should not weigh towards respondents' speedy trial claims. We also find that, in this case, the delay attributable to interlocutory appeals by the Government and respondents does not establish a violation of the Speedy Trial Page 474 U. S. 305 Clause. Accordingly we reverse the holding of the Court of Appeals that respondents were denied their right to a speedy trial.IIn view of the nature of respondents' claim, we state the factual and procedural history of this case in some detail. On November 14, 1975, pursuant to a tip from the Federal Bureau of Investigation, Oregon state troopers stopped two vehicles in search of several federal fugitives. [Footnote 2] After an exchange of gunfire and a motor chase, state troopers captured all but one of the respondents, Dennis Banks. [Footnote 3] Both vehicles were locked and impounded while federal and state authorities obtained search warrants.Searches of the vehicles over the next two days disclosed 350 pounds of dynamite, [Footnote 4] 6 partially assembled time bombs, Page 474 U. S. 306 2,600 rounds of ammunition, 150 blasting caps, 9 empty hand grenades, and miscellaneous firearms. [Footnote 5] Oregon law enforcement officers, apparently unaware of the evidentiary consequences, adhered to their usual policy and destroyed the dynamite. A federal agent present at the destruction photographed the explosions. United States v. Loud Hawk, 628 F.2d 1139, 1142 (CA9 1979). State officials also preserved wrappers from the dynamite casings.A federal grand jury indicted respondents on November 25, 1975, on charges of possessing firearms and explosives. Trial in the United States District Court for the District of Oregon was set for the week of February 9, 1976. On December 22, 1975, a grand jury returned a five-count superseding indictment. This indictment charged all respondents with three counts relating to possession and transportation in commerce of an unregistered destructive device (the dynamite counts) and two counts relating to unlawful possession of firearms (the firearms counts).Two days later, respondents filed a motion to suppress all evidence concerning the dynamite, arguing that federal and state officials had intentionally and negligently destroyed the dynamite before the defense had the opportunity to examine it. After initially denying respondents' motion, [Footnote 6] and after Page 474 U. S. 307 two continuances at respondents' behest, [Footnote 7] the District Court granted respondents' motion to suppress on March 31, 1976. App. to Pet. for Cert. 157a. Three weeks later, the Government appealed the suppression order, [Footnote 8] and moved that trial on all counts be continued pending the outcome of the appeal. The District Court denied the Government's request for a continuance, and when the case was called for trial, the Government answered "not ready." Pursuant to Federal Rule of Criminal Procedure 48(b), the District Judge dismissed the indictment with prejudice. Six months had passed since the original indictment.The Government immediately appealed the dismissal, and the two appeals were consolidated. The Court of Appeals Page 474 U. S. 308 heard argument on October 15, 1976, and a divided panel affirmed in an unreported opinion on July 26, 1977. App. to Pet. for Cert. 88a-118a. On the Government's motion, the court voted on October 17, 1977, to hear the case en banc. On March 6, 1978, the Court of Appeals en banc remanded for findings of fact on whether federal officials participated in the destruction of the dynamite and whether respondents were prejudiced by its destruction. The court retained jurisdiction over the appeal pending the District Court's findings. The District Court issued its findings on August 23, 1978, and the case returned to the Court of Appeals.On August 7, 1979, the Court of Appeals reversed the suppression order and directed that the dynamite counts be reinstated. United States v. Loud Hawk, 628 F.2d at 1150. The court also held that, although the Government could have gone to trial on the firearms counts pending the appeal, the District Court erred in dismissing those counts with prejudice. Id. at 1151. The Court of Appeals denied respondents' petition for rehearing on October 1, 1979. Respondents petitioned for certiorari; we denied the petition on larch 3, 1980. 445 U.S. 917. The mandate of the Court of Appeals issued on March 12, 1980, 46 months after the Government filed its notice of appeal from the dismissal of the indictment. Respondents were unconditionally released during that time.Following remand, the District Court ordered the Government to reindict on the firearms charges. [Footnote 9] Respondents filed a number of motions during June and July of 1980 in response Page 474 U. S. 309 to the superseding indictment, [Footnote 10] including a motion to dismiss for vindictive prosecution. On August 8, 1980, the District Court granted the vindictive prosecution motion as to KaMook Banks and denied it as to respondents Dennis Banks, Render, and Loud Hawk. Both sides appealed. Respondents remained free on their own recognizance during this appeal.The appeals were consolidated, and the Court of Appeals ordered expedited consideration. The court heard argument on January 7, 1981, but did not issue its decision until July 29, 1982. The court sustained the Government's position on all issues. United States v. Banks, 682 F.2d 841. Respondents' petitions for rehearing were denied on October 5, 1982. Respondents again petitioned for certiorari, and we denied the petition on January 10, 1983. 459 U.S. 1117. The Court of Appeals' mandate issued on January 31, 1983, almost 29 months after the appeals were filed.The District Court scheduled trial to begin on April 11, 1983. The Government sought and received a continuance until May 3, 1983, because of alleged difficulties in locating witnesses more than seven years after the arrests. Subsequently, the court on its own motion continued the trial date until May 23, 1983, and then again rescheduled the trial for June 13. The record in this Court does not reveal the reasons Page 474 U. S. 310 for these latter two continuances. Defendants objected to each continuance.On May 20, 1983, the District Court again dismissed the indictment, this time on the ground that respondents' Sixth Amendment right to a speedy trial had been violated. 564 F. Supp. 691. The Government appealed, and unsuccessfully urged the District Court to request that the Court of Appeals expedite the appeal. On its own motion, the court treated the appeal as expedited, and heard argument on January 4, 1984. A divided panel affirmed on August 30, 1984. 741 F.2d 1184. [Footnote 11] We granted certiorari, 471 U.S. 1014 (1985), and now reverse.IIThe Government argues that, under United States v. MacDonald, 456 U. S. 1 (1982), the time during which defendants are neither under indictment nor subject to any restraint on their liberty should be excluded -- weighed not at all -- when considering a speedy trial claim. [Footnote 12] Respondents contend that, even during the time the charges against them were dismissed, the Government was actively pursuing its case, and they continued to be subjected to the possibility that bail might be imposed. This possibility, according to respondents, is sufficient to warrant counting the time towards a speedy trial claim.The Court has found that, when no indictment is outstanding, only the"actual restraints imposed by arrest and holding to answer a criminal charge . . . engage the particular protections of the speedy trial provision of the Sixth Amendment."United States v. Marion, 404 U. S. 307, 404 U. S. 320 (1971) Page 474 U. S. 311 (emphasis added); see MacDonald, supra, at 456 U. S. 9. As we stated in MacDonald:"The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges."456 U.S. at 456 U. S. 8.During much of the litigation, respondents were neither under indictment nor subject to bail. [Footnote 13] Further judicial proceedings would have been necessary to subject respondents to any actual restraints. Cf. Klopfer v. North Carolina, 386 U. S. 213 (1967). As we stated in MacDonald:"[W]ith no charges outstanding, personal liberty is certainly not impaired to the same degree as it is after arrest while charges are pending. After the charges against him have been dismissed,""a citizen suffers no restraints on his liberty and is [no longer] the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer."456 U.S. at 456 U. S. 9.Respondents argue that the speedy trial guarantee should apply to this period because the Government's desire to prosecute them was a matter of public record. Public suspicion, however, is not sufficient to justify the delay in favor of a defendant's speedy trial claim. We find that, after the District Court dismissed the indictment against respondents and after respondents were freed without restraint, they were "in the same position as any other subject of a criminal investigation." MacDonald, supra, at 456 U. S. 8-9. See Marion, supra, at 404 U. S. 309. The Speedy Trial Clause does not purport to protect a defendant from all effects flowing from a delay before trial. Page 474 U. S. 312 The Clause does not, for example, limit the length of a preindictment criminal investigation, even though "the [suspect's] knowledge of an ongoing criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life." 456 U.S. at 456 U. S. 9.Nor does the fact that respondents were ordered to appear at the evidentiary hearing held on remand in the District Court during the first appeal -- an appearance they waived -- constitute the sort of "actual restraint" required under our precedents as a basis for application of the Speedy Trial Clause. Finally, we are not persuaded that respondents' need for counsel while their case was technically dismissed supports their speedy trial claim. Although the retention of counsel is frequently an inconvenience and an expense, the Speedy Trial Clause's core concern is impairment of liberty; it does not shield a suspect or a defendant from every expense or inconvenience associated with criminal defense.We therefore find that, under the rule of MacDonald, when defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause.IIIThe remaining issue is how to weigh the delay occasioned by an interlocutory appeal when the defendant is subject to indictment or restraint. As we have recognized, the Sixth Amendment's guarantee of a speedy trial"is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation, and to limit the possibilities that long delay will impair the ability of an accused to defend himself."United States v. Ewell, 383 U. S. 116, 383 U. S. 120 (1966). The safeguards may be as important to the accused when the delay is occasioned by an unduly long appellate process as when the delay is caused by a lapse between the initial arrest and the drawing of a proper indictment, Ewell, supra, at Page 474 U. S. 313 383 U. S. 118-119, or by continuances in the date of trial, Barker v. Wingo, 407 U. S. 514, 407 U. S. 517-518 (1972).At the same time, there are important public interests in the process of appellate review. The assurance that motions to suppress evidence or to dismiss an indictment are correctly decided through orderly appellate review safeguards both the rights of defendants and the "rights of public justice." Beavers v. Haubert, 198 U. S. 77, 198 U. S. 87 (1905). The legislative history of 18 U.S.C. § 3731"makes it clear that Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit."United States v. Wilson, 420 U. S. 332, 420 U. S. 337 (1975)It is, of course, true that the interests served by appellate review may sometimes stand in opposition to the right to a speedy trial. But, as the Court observed in United States v. Ewell, supra, at 383 U. S. 121:"It has long been the rule that, when a defendant obtains a reversal of a prior, unsatisfied conviction, he may be retried in the normal course of events. . . . [This rule] has been thought wise because it protects the societal interest in trying people accused of crime, rather than granting them immunization because of legal error at a previous trial, and because it enhances the probability that appellate courts will be vigilant to strike down previous convictions that are tainted with reversible error. . . . These policies, so carefully preserved in this Court's interpretation given the Double Jeopardy Clause, would be seriously undercut by [an] interpretation given the Speedy Trial Clause [that raised a Sixth Amendment obstacle to retrial following successful attack on conviction]."In Barker, we adopted a four-part balancing test to determine whether a series of continuances infringed upon the defendant's right to a speedy trial. 407 U.S. at 407 U. S. 530. That test assessed the "[l]ength of delay, the reason for the Page 474 U. S. 314 delay, the defendant's assertion of his right, and prejudice to the defendant." Ibid. (footnote omitted). The Barker test furnishes the flexibility to take account of the competing concerns of orderly appellate review on the one hand, and a speedy trial on the other. We therefore adopt this functional test to determine the extent to which appellate time consumed in the review of pretrial motions should weigh towards a defendant's speedy trial claim. Under this test, we conclude that, in this case, the delays do not justify the "unsatisfactorily severe remedy of dismissal." Id. at 407 U. S. 522.ABarker's first, third, and fourth factors present no great difficulty in application. The first factor, the length of delay, defines a threshold in the inquiry: there must be a delay long enough to be "presumptively prejudicial." Id. at 407 U. S. 530. Here, a 90-month delay in the trial of these serious charges is presumptively prejudicial, and serves to trigger application of Barker's other factors. Ibid.The third factor -- the extent to which respondents have asserted their speedy trial rights -- does not support their position. Although the Court of Appeals found that respondents have repeatedly moved for dismissal on speedy trial grounds, 741 F.2d at 1192, that finding alone does not establish that respondents have appropriately asserted their rights. We held in Barker that such assertions from defendants are "entitled to strong evidentiary weight" in determining whether their rights to a speedy trial have been denied. 407 U.S. at 407 U. S. 531-532. These assertions, however, must be viewed in the light of respondents' other conduct.Here, respondents' speedy trial claims are reminiscent of Penelope's tapestry. [Footnote 14] At the same time respondents were making a record of claims in the District Court for speedy trial, they consumed six months by filing indisputably frivolous petitions for rehearing and for certiorari after this Page 474 U. S. 315 Court's decision in United States v. Hollywood Motor Car Co., 458 U. S. 263 (1982) (federal courts without jurisdiction to hear defendant's interlocutory appeal from denial of motion to dismiss indictment). They also filled the District Court's docket with repetitive and unsuccessful motions. See, e.g., n 10, supra.The Court of Appeals gave "little weight" to the fourth factor, prejudice to respondents. At most, the court recognized the possibility of "impairment of a fair trial that may well result from the absence or loss of memory of witnesses in this case." 741 F.2d at 1193. See Barker, 407 U.S. at 407 U. S. 532. That possibility of prejudice is not sufficient to support respondents' position that their speedy trial rights were violated. In this case, moreover, delay is a two-edged sword. It is the Government that bears the burden of proving its case beyond a reasonable doubt. The passage of time may make it difficult or impossible for the Government to carry this burden.BThe flag all litigants seek to capture is the second factor, the reason for delay. In Barker, we held that "different weights should be assigned to different reasons." Id. at 407 U. S. 531. While a "deliberate attempt to delay the trial in order to hamper the defense," would be weighed heavily against the Government, a delay from "overcrowded courts" -- as was the situation here -- would be weighed "less heavily." Ibid. Given the important public interests in appellate review, supra, at 474 U. S. 313, it hardly need be said that an interlocutory appeal by the Government ordinarily is a valid reason that justifies delay. In assessing the purpose and reasonableness of such an appeal, courts may consider several factors. These include the strength of the Government's position on the appealed issue, the importance of the issue in the posture of the case, and -- in some cases -- the seriousness of the crime. United States v. Herman, 576 F.2d 1139, 1146 (CA5 1978) (Wisdom, J.). For example, a delay resulting from an appeal Page 474 U. S. 316 would weigh heavily against the Government if the issue were clearly tangential or frivolous. Ibid. Moreover, the charged offense usually must be sufficiently serious to justify restraints that may be imposed on the defendant pending the outcome of the appeal. Ibid.Under Barker, delays in bringing the case to trial caused by the Government's interlocutory appeal may be weighed in determining whether a defendant has suffered a violation of his rights to a speedy trial. It is clear in this case, however, that respondents have failed to show a reason for according these delays any effective weight towards their speedy trial claims. There is no showing of bad faith or dilatory purpose on the Government's part. The Government's position in each of the appeals was strong, and the reversals by the Court of Appeals are prima facie evidence of the reasonableness of the Government's action. Moreover, despite the seriousness of the charged offenses, the District Court chose not to subject respondents to any actual restraints pending the outcome of the appeals.The only remaining question is the weight to be attributed to delays caused by respondents' interlocutory appeals. In that limited class of cases where a pretrial appeal by the defendant is appropriate, see, e.g., Hollywood Motor Car Co., supra, at 458 U. S. 265-266, delays from such an appeal ordinarily will not weigh in favor of a defendant's speedy trial claims. A defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal, or a wholly unjustifiable delay by the appellate court. A defendant who resorts to an interlocutory appeal normally should not be able upon return to the district court to reap the reward of dismissal for failure to receive a speedy trial. As one Court of Appeals has noted in the context of a District Court's consideration of pretrial motions:"Having sought the aid of the judicial process and realizing the deliberateness that a court employs in reaching a Page 474 U. S. 317 decision, the defendants are not now able to criticize the very process which they so frequently called upon."United States v. Auerbach, 420 F.2d 921, 924 (CA5 1969), rehearing denied, 423 F.2d 66, cert. denied, 399 U.S. 905 (1970).In the present case, respondents' appeal was allowable under the law of the Ninth Circuit before our decision in Hollywood Motor Car, supra. But we find that their position was so lacking in merit that the time consumed by this appeal should not weigh in support of respondents' speedy trial claim. Nor do we weigh the additional delay of six months resulting from respondents' frivolous action in seeking rehearing and certiorari toward respondents' speedy trial claim. See ibid., decided prior to these latter actions.IVWe cannot hold, on the facts before us, that the delays asserted by respondents weigh sufficiently in support of their speedy trial claim to violate the Speedy Trial Clause. They do not justify the severe remedy of dismissing the indictment. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.It is so ordered

U.S. Supreme CourtUnited States v. Loud Hawk, 474 U.S. 302 (1986)United States v. Loud HawkNo. 84-1361Argued November 12, 1985Decided January 21, 1986474 U.S. 302SyllabusRespondents were arrested and indicted in November, 1975, on counts of possessing firearms and dynamite. In March, 1976, the Federal District Court granted respondents' motion to suppress evidence relating to the dynamite counts, and the Government promptly filed a notice of appeal and requested a continuance. The District Court denied this request and, when the Government answered "not ready" after the case was called for trial, dismissed the indictment. The Government appealed this dismissal, and the two appeals were consolidated. In August, 1979, the Court of Appeals reversed the suppression order, ordered that the dynamite counts be reinstated, and held that the District Court erred in dismissing the firearms counts. In November, 1979, respondents filed a petition for certiorari, which this Court denied. The Court of Appeals' mandate issued in March, 1980, 46 months after the Government filed its notice of appeal from the dismissal of the indictment, during which time respondents were unconditionally released. On remand, the District Court ordered the Government to reindict on the firearms charges. In August, 1980, the District Court granted a motion to dismiss on the ground of vindictive prosecution as to one respondent, but denied it as to the other respondents, and both the Government and these respondents appealed. During these appeals, respondents remained free on their own recognizance. In July, 1982, the Court of Appeals reversed the dismissal as to the one respondent and dismissed the appeals of the other respondents, and in October, 1982, denied respondents' petitions for a rehearing. Respondents then filed a petition for certiorari, which this Court denied. The Court of Appeals' mandate issued in January, 1983. In May, 1983, the District Court again dismissed the indictment, ruling that respondents' Sixth Amendment right to a speedy trial had been violated. The Court of Appeals affirmed.Held:1. The time during which the indictment was dismissed and respondents were free of all restrictions on their liberty should be excluded from the length of delay considered under the Speedy Trial Clause of the Sixth Amendment. United States v. MacDonald, 456 U. S. 1. Pp. 474 U. S. 310-312.(a) Where no indictment is outstanding, it is only the actual restraints imposed by arrest and holding to answer a criminal charge that engages the protection of the Speedy Trial Clause. Here, respondents Page 474 U. S. 303 were not incarcerated and were not subject to bail, and further judicial proceedings would have been necessary to subject them to any actual restraints. Pp. 474 U. S. 310-311.(b) The fact that the Government's desire to prosecute respondents was a matter of public record was insufficient to count the time in question toward a speedy trial claim. Nor does the fact that respondents were ordered to appear at the evidentiary hearing held on remand in the District Court during the first appeal constitute the sort of "actual restraint" required for application of the Speedy Trial Clause. And respondents' necessity to obtain counsel while their case was technically dismissed was not sufficient to trigger that Clause. Pp. 474 U. S. 311-312.2. The delay attributable to the interlocutory appeals does not weigh effectively towards respondents' claim under the Speedy Trial Clause. Under the balancing test of Barker v. Wingo, 407 U. S. 514, courts must accommodate the competing concerns of orderly appellate review and a speedy trial. Pp. 474 U. S. 312-317.(a) Three of the factors under Barker -- the length of delay, the extent to which respondents have asserted their speedy trial rights, and the prejudice to respondents -- fail to support a finding of a violation of the Speedy Trial Clause. Pp. 474 U. S. 314-315.(b) The remaining Barker factor, the reason for the delay, also fails to carry respondents' claims. The Government's first interlocutory appeal was justified where the Government could not have otherwise presented the issue relating to exclusion of the evidence on the dynamite counts, and the Government's appeal on this issue was strong. Similarly, the Government's second interlocutory appeal was justified because the Government could not have otherwise proceeded against the one respondent against whom the indictment was dismissed, and here too the Government's position was strong. Pp. 474 U. S. 315-316.(c) The delay from respondents' interlocutory appeals does not count toward their speedy trial claims. A defendant bears the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal or a wholly unjustified delay by the appellate court. Pp. 474 U. S. 316-317.3. On the facts, the delays in question were not sufficiently long to justify dismissal of the case against respondents because of an alleged violation of the Speedy Trial Clause. P. 474 U. S. 317.741 F.2d 1184, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 474 U. S. 317. Page 474 U. S. 304

1980_79-1709

JUSTICE REHNQUIST delivered the opinion of the Court.Petitioners were convicted of conspiracy to import marihuana (Count I), in violation of 21 U.S.C. § 963, and conspiracy to distribute marihuana (Count II), in violation of 21 U.S.C. § 846. Petitioners received consecutive sentences on each count. The United States Court of Appeals for the Fifth Circuit, sitting en banc, affirmed petitioners' convictions and sentences. United States v. Rodriguez, 612 F.2d 906 (1980). We granted certiorari to consider whether Congress intended consecutive sentences to be imposed for the violation of these two conspiracy statutes, and, if so, whether such cumulative punishment violates the Double Jeopardy Page 450 U. S. 335 Clause of the Fifth Amendment of the United States Constitution. 449 U.S. 818 (1980).The facts forming the basis of petitioners' convictions are set forth in the panel opinion of the Court of Appeals, United States v. Rodriguez, 585 F.2d 1234 (1978), and need not be repeated in detail here. For our purposes, we need only relate that the petitioners were involved in an agreement, the objectives of which were to import marihuana and then to distribute it domestically. Petitioners were charged and convicted under two separate statutory provisions, and received consecutive sentences. The length of each of their combined sentences exceeded the maximum 5-year sentence which could have been imposed either for a conviction of conspiracy to import or for a conviction of conspiracy to distribute.The statutes involved in this case are part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236, 21 U.S.C. § 801 et seq. Section 846 is in Subchapter I of the Act, and provides:"Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy."This provision proscribes conspiracy to commit any offense defined in Subchapter I, including conspiracy to distribute marihuana, which is specifically prohibited in 21 U.S.C. § 841(a)(1). Section 846 authorizes imposition of a sentence of imprisonment or a fine that does not exceed the penalty specified for the object offense.Section 963, which is part of Subchapter II of the Act, contains a provision identical to § 846 and proscribes conspiracy to commit any offense defined in Subchapter II, including conspiracy to import marihuana, which is specifically prohibited by 21 U.S.C. § 960(a)(1). As in § 846, § 963 Page 450 U. S. 336 authorizes a sentence of imprisonment or a fine that does not exceed the penalties specified for the object offense. Thus, a conspiratorial agreement which envisages both the importation and distribution of marihuana violates both statutory provisions, each of which authorizes a separate punishment.Petitioners do not dispute that their conspiracy to import and distribute marihuana violated both § 846 and § 963. Rather, petitioners contend it is not clear whether Congress intended to authorize multiple punishment for violation of these two statutes in a case involving only a single agreement or conspiracy, even though that isolated agreement had dual objectives. Petitioners argue that, because Congress has not spoken with the clarity required for this Court to find an "unambiguous intent to impose multiple punishment," we should invoke the rule of lenity and hold that the statutory ambiguity on this issue prevents the imposition of multiple punishment. Petitioners further contend that, even if cumulative punishment was authorized by Congress, such punishment is barred by the Double Jeopardy Clause of the Fifth Amendment.In resolving petitioners' initial contention that Congress did not intend to authorize multiple punishment for violations of §§ 846 and 963, our starting point must be the language of the statutes. Absent a "clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumers Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 447 U. S. 108 (1980). Here, we confront separate offenses with separate penalty provisions that are contained in distinct Subchapters of the Act. The provisions are unambiguous on their face, and each authorizes punishment for a violation of its terms. Petitioners contend, however, that the question presented is not whether the statutes are facially ambiguous, but whether consecutive sentences may be imposed when convictions under those statutes arise from participation in a single conspiracy Page 450 U. S. 337 with multiple objectives -- a question raised, rather than resolved, by the existence of both provisions.The answer to petitioners' contention is found, we believe, in application of the rule announced by this Court in Blockburger v. United States, 284 U. S. 299 (1932), and most recently applied last Term in Whalen v. United States, 445 U. S. 684 (1980). In Whalen, the Court explained that the "rule of statutory construction" stated in Blockburger is to be used "to determine whether Congress has, in a given situation, provided that two statutory offenses may be punished cumulatively." 445 U.S. at 445 U. S. 691. The Court then referenced the following test set forth in Blockburger:"The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not."Blockburger v. United States, supra at 284 U. S. 304. Our decision in Whalen was not the first time this Court has looked to the Blockburger rule to determine whether Congress intended that two statutory offenses be punished cumulatively. We previously stated in Brown v. Ohio, 432 U. S. 161, 432 U. S. 166 (1977), although our analysis there was, of necessity, based on a claim of double jeopardy, since the case came to us from a state court, that"[t]he established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States. . . ."Similarly, in Iannelli v. United States, 420 U. S. 770, 420 U. S. 785, n. 17 (1975), we explained:"The test articulated in Blockburger v. United States, 284 U. S. 299 (1932), serves a generally similar function of identifying congressional intent to impose separate sanctions for multiple offenses arising in the course of a single act or transaction. In determining whether separate Page 450 U. S. 338 punishment might be imposed, Blockburger requires that courts examine the offenses to ascertain 'whether each provision requires proof of a fact which the other does not.' Id. at 284 U. S. 304. As Blockburger and other decisions applying its principle reveal, . . . the Court's application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes."In Gore v. United States, 357 U. S. 386 (1958), the Court rejected the opportunity to abandon Blockburger as the test to apply in determining whether Congress intended to impose multiple punishment for a single act which violates several statutory provisions. In reaffirming Blockburger, the Court explained:"The fact that an offender violates by a single transaction several regulatory controls devised by Congress as means for dealing with a social evil as deleterious as it is difficult to combat does not make the several different regulatory controls single and identic."357 U.S. at 357 U. S. 389.Finally, in American Tobacco Co. v. United States, 328 U. S. 781 (1946), defendants who had been convicted of conspiracy in restraint of trade in violation of § 1 of the Sherman Act (15 U.S.C. § 1), and conspiracy to monopolize in violation of § 2 (15 U.S.C. § 2), sought review of their convictions, contending that separate sentences for these offenses were impermissible because there was "but one conspiracy, namely, a conspiracy to fix prices." 328 U.S. at 328 U. S. 788. In rejecting this claim, the Court noted the presence of separate statutory offenses and then, relying on Blockburger, upheld the sentences on the ground that"§§ 1 and 2 of the Sherman Act require proof of conspiracies which are reciprocally distinguishable from and independent of each Page 450 U. S. 339 other although the objects of the conspiracies may partially overlap."328 U.S. at 328 U. S. 788.The statutory provisions at issue here clearly satisfy the rule announced in Blockburger, and petitioners do not seriously contend otherwise. Sections 846 and 963 specify different ends as the proscribed object of the conspiracy -- distribution, as opposed to importation -- and it is beyond peradventure that "each provision requires proof of a fact [that] the other does not." Thus, application of the Blockburger rule to determine whether Congress has provided that these two statutory offenses be punished cumulatively results in the unequivocal determination that §§ 846 and 963, like §§ 1 and 2 of the Sherman Act, which were at issue in American Tobacco, proscribe separate statutory offenses the violations of which can result in the imposition of consecutive sentences.Our conclusion in this regard is not inconsistent with our earlier decision in Braverman v. United States, 317 U. S. 49 (1942), on which petitioners rely so heavily. Petitioners argue that Blockburger cannot be used for divining legislative intent when the statutes at issue are conspiracy statutes. Quoting Braverman, they argue that whether the objective of a single agreement is to commit one or many crimes, it is in either case the agreement which constitutes the conspiracy which the statute punishes."The one agreement cannot be taken to be several agreements, and hence several conspiracies, because it envisages the violation of several statutes, rather than one."317 U.S. at 317 U. S. 53. Braverman, however, does not support petitioners' position. Unlike the instant case or this Court's later decision in American Tobacco, the conspiratorial agreement in Braverman, although it had many objectives, violated but a single statute. The Braverman Court specifically noted:"Since the single continuing agreement, which is the conspiracy here, thus embraces its criminal objects, it Page 450 U. S. 340 differs from successive acts which violate a single penal statute and from a single act which violates two statutes. See Blockburger v. United States, 284 U. S. 299, 284 U. S. 301-[30]4; Albrecht v. United States, 273 U. S. 1, 273 U. S. 11-12. The single agreement is the prohibited conspiracy, and however diverse its objects, it violates but a single statute, § 37 of the Criminal Code. For such a violation, only the single penalty prescribed by the statute can be imposed."317 U.S. at 317 U. S. 54 (emphasis added). Later, in American Tobacco, the Court distinguished Braverman:"In contrast to the single conspiracy described in [Braverman] in separate counts, all charged under the general conspiracy statute, . . . we have here separate statutory offenses, one a conspiracy in restraint of trade that may stop short of monopoly and the other a conspiracy to monopolize that may not be content with restraint short of monopoly. One is made criminal by § 1 and the other by § 2 of the Sherman Act."328 U.S. at 328 U. S. 788. See also Pinkerton v. United States, 328 U. S. 640, 328 U. S. 642-643 (1946).The Blockburger test is a "rule of statutory construction," and, because it serves as a mean of discerning congressional purpose, the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent. Nothing, however, in the legislative history which has been brought to our attention discloses an intent contrary to the presumption which should be accorded to these statutes after application of the Blockburger test. In fact, the legislative history is silent on the question of whether consecutive sentences can be imposed for conspiracy to import and distribute drugs. Petitioners read this silence as an "ambiguity" over whether Congress intended to authorize Page 450 U. S. 341 multiple punishment. [Footnote 1] Petitioners, however, read much into nothing. Congress cannot be expected to specifically address each issue of statutory construction which may arise. But, as we have previously noted, Congress is "predominantly a lawyer's body." Callanan v. United States, 364 U. S. 587, 364 U. S. 594 (1961), and it is appropriate for us "to assume that our elected representatives . . . know the law." Cannon v. University of Chicago, 441 U. S. 677, 441 U. S. 696-697 (1979). As a result, if anything is to be assumed from the congressional Page 450 U. S. 342 silence on this point, it is that Congress was aware of the Blockburger rule and legislated with it in mind. It is not a function of this Court to presume that "Congress was unaware of what it accomplished. . . ." United States Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 449 U. S. 179 (1980). [Footnote 2]Finally, petitioners contend that, because the legislative history is "ambiguous" on the question of multiple punishment, we should apply the rule of lenity so as not to allow consecutive sentences in this situation. Last Term. in Bifulco v. United States, 447 U. S. 381 (1980), we recognized that the rule of lenity is a principle of statutory construction which applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose. Quoting Ladner v. United States, 358 U. S. 169, 358 U. S. 178 (1958), we stated:"'This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.'"447 U.S. at 447 U. S. 387. We emphasized that the "touchstone" of the rule of lenity "is statutory ambiguity." And we stated: "Where Congress has manifested its intention, we may not manufacture ambiguity in order to defeat that intent." Ibid. Lenity thus serves only as an aid for resolving an ambiguity; it is not to be used to beget one. The rule comes into operation"at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers."Callanan v. United States, supra, at 364 U. S. 596. Page 450 U. S. 343In light of these principles, the rule of lenity simply has no application in this case; we are not confronted with any statutory ambiguity. To the contrary, we are presented with statutory provisions which are unambiguous on their face and a legislative history which gives us no reason to pause over the manner in which these provisions should be interpreted.The conclusion we reach today regarding the intent of Congress is reinforced by the fact that the two conspiracy statutes are directed to separate evils presented by drug trafficking. "Importation" and "distribution" of marihuana impose diverse societal harms, and, as the Court of Appeals observed, Congress has, in effect, determined that a conspiracy to import drugs and to distribute them is twice as serious as a conspiracy to do either object singly. 612 F.2d at 918. This result is not surprising, for, as we observed many years ago, the history of the narcotics legislation in this country"reveals the determination of Congress to turn the screw of the criminal machinery -- detection, prosecution and punishment -- tighter and tighter."Gore v. United States, 357 U.S. at 357 U. S. 390.Having found that Congress intended to permit the imposition of consecutive sentences for violations of § 846 and § 963, we are brought to petitioners' argument that, notwithstanding this fact, the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution precludes the imposition of such punishment. While the Clause itself simply states that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb," the decisional law in the area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator. We have previously stated that the Double Jeopardy Clause"protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the offense after conviction. And it protects against multiple punishments for the same offense."North Carolina v. Pearce, 395 U. S. 711, 395 U. S. 717 (1969) (footnotes omitted). Page 450 U. S. 344Last Term, in Whalen v. United States, this Court stated that"the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized."445 U.S. at 445 U. S. 688; id. at 445 U. S. 696 (WHITE, J., concurring in part and concurring in judgment); ibid. (BLACKMUN, J., concurring in judgment). In determining the permissibility of the imposition of cumulative punishment for the crime of rape and the crime of unintentional killing in the course of rape, the Court recognized that the "dispositive question" was whether Congress intended to authorize separate punishments for the two crimes. Id. at 445 U. S. 689. This is so because the "power to define criminal offenses and to prescribe punishments to be imposed upon those found guilty of them, resides wholly with the Congress." Ibid. As we previously noted in Brown v. Ohio,"[w]here consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense."432 U.S. at 432 U. S. 165. Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution. [Footnote 3]The judgment of the Court of Appeals is accordinglyAffirmed

U.S. Supreme CourtAlbernaz v. United States, 450 U.S. 333 (1981)Albernaz v. United StatesNo. 79-1709Argued January 19, 1981Decided March g, 1981450 U.S. 333SyllabusPetitioners, who were involved in an agreement to import marihuana and then to distribute it domestically, were convicted on separate counts of conspiracy to import marihuana, in violation of 21 U.S.C. § 963, and conspiracy to distribute marihuana, in violation of 21 U.S.C. § 846. These statutes are parts of different subchapters of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Petitioners received consecutive sentences on each count, the length of each of their combined sentences exceeding the maximum which could have been imposed either for a conviction of conspiracy to import or for a conviction of conspiracy to distribute. The Court of Appeals affirmed the convictions and sentences.Held:1. Congress intended to permit the imposition of consecutive sentences for violations of §§ 846 and 963 even though such violations arose from a single agreement or conspiracy having dual objectives. Pp. 450 U. S. 336-343.(a) In determining whether Congress intended to authorize cumulative punishments, the applicable rule, announced in Blockburger v. United States, 284 U. S. 299, 284 U. S. 304, is that"where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not."The statutory provisions involved here specify different ends as the proscribed object of the conspiracy -- "distribution" and "importation" -- and clearly satisfy the Blockburger test. Each provision requires proof of a fact that the other does not, and thus §§ 846 and 963 proscribe separate statutory offenses the violations of which can result in the imposition of consecutive sentences. Braverman v. United States, 317 U. S. 49 distinguished. Pp. 450 U. S. 337-340.(b) While the Blockburger test is not controlling where there is a clear indication of contrary legislative intent, if anything is to be assumed from the legislative history's silence on the question whether consecutive sentences can be imposed for a conspiracy to import and distribute drugs, it is that Congress was aware of the Blockburger rule, Page 450 U. S. 334 and legislated with it in mind. And the rule of lenity has no application in this case, since there is no statutory ambiguity. Pp. 450 U. S. 340-343.2. The imposition of consecutive sentences for petitioners' violations of §§ 846 and 963 does not violate the Double Jeopardy Clause of the Fifth Amendment. In determining whether punishments imposed after a conviction are unconstitutionally multiple, the dispositive question is whether Congress intended to authorize separate punishments for the crimes. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution. Pp. 450 U. S. 343-344.612 F.2d 906, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, ad POWELL, JJ., joined. STEWART, J., filed an opinion concurring in the judgment, in which MARSHALL and STEVENS, JJ., joined, post, p. 450 U. S. 344.

1962_288

MR. JUSTICE WHITE delivered the opinion of the Court.The question before us is whether an employer commits an unfair labor practice under § 8(a) [Footnote 1] of the Page 373 U. S. 222 National Labor Relations Act, 61 Stat. 136, 29 U.S.C. § 158, when he extends a 20-year seniority credit to strike replacements and strikers who leave the strike and return to work. The Court of Appeals for the Third Circuit in this case joined the Ninth Circuit, Labor Board v. Potlatch Forests, Inc., 189 F.2d 82 (and see Labor Board v. Lewin-Mathes Co., 285 F.2d 329, from the Seventh Circuit), to hold that such super-seniority awards are not unlawful absent a showing of an illegal motive on the part of the employer. 303 F.2d 359. The Sixth Circuit, Swarco, Inc. v. Labor Board, 303 F.2d 668, and the National Labor Relations Board are of the opinion that such conduct can be unlawful even when the employer asserts that these additional benefits are necessary to continue his operations during a strike. To resolve these conflicting views upon an important question in the administration of the National Labor Relations Act, we brought the case here. 371 U.S. 810.Erie Resistor Corporation and Local 613 of the International Union of Electrical Radio and Machine Workers were bound by a collective bargaining agreement which was due to expire on March 31, 1959. In January, 1959, both parties met to negotiate new terms, but, after extensive bargaining, they were unable to reach agreement. Upon expiration of the contract, the union, in support of its contract demands, called a strike which was joined by all of the 478 employees in the unit. [Footnote 2]The company, under intense competition and subject to insistent demands from its customers to maintain deliveries, Page 373 U. S. 223 decided to continue production operations. Transferring clerks, engineers and other non-unit employees to production jobs, the company managed to keep production at about 15% to 30% of normal during the month of April. On May 3, however, the company notified the union members that it intended to begin hiring replacements, and that strikers would retain their jobs until replaced. The plant was located in an area classified by the United States Department of Labor as one of severe unemployment, and the company had, in fact, received applications for employment as early as a week or two after the strike began.Replacements were told that they would not be laid off or discharged at the end of the strike. To implement that assurance, particularly in view of the 450 employees already laid off on March 31, the company notified the union that it intended to accord the replacements some form of super-seniority. At regular bargaining sessions between the company and union, the union made it clear that, in its view, no matter what form the super-seniority plan might take, it would necessarily work an illegal discrimination against the strikers. As negotiations advanced on other issues, it became evident that super-seniority was fast becoming the focal point of disagreement. On May 28, the company informed the union that it had decided to award 20 years' [Footnote 3] additional seniority both to replacements and to strikers who returned to work, which would be available only for credit against future layoffs, and which could not be used for other employee benefits based on years of service. The strikers at a union meeting the next day, unanimously resolved to continue striking, now in protest against the proposed plan as well. Page 373 U. S. 224The company made its first official announcement of the super-seniority plan on June 10, and by June 14, 34 new employees, 47 employees recalled from layoff status, and 23 returning strikers had accepted production jobs. The union, now under great pressure, offered to give up some of its contract demands if the company would abandon super-seniority or go to arbitration on the question, but the company refused. In the following week, 64 strikers returned to work and 21 replacements took jobs, bringing the total to 102 replacements and recalled workers and 87 returned strikers. When the number of returning strikers went up to 125 during the following week, the union capitulated. A new labor agreement on the remaining economic issues was executed on July 17, and an accompanying settlement agreement was signed providing that the company's replacement and job assurance policy should be resolved by the National Labor Relations Board and the federal courts, but was to remain in effect pending final disposition.Following the strike's termination, the company reinstated those strikers whose jobs had not been filled (all but 129 were returned to their jobs). At about the same time, the union received some 173 resignations from membership. By September of 1959, the production unit work force had reached a high of 442 employees, but, by May of 1960, the work force had gradually slipped back to 240. Many employees laid off during this cutback period were reinstated strikers whose seniority was insufficient to retain their jobs as a consequence of the company's super-seniority policy.The union filed a charge with the National Labor Relations Board alleging that awarding super-seniority during the course of the strike constituted an unfair labor practice, and that the subsequent layoff of the recalled strikers pursuant to such a plan was unlawful. The Trial Examiner found that the policy was promulgated for legitimate Page 373 U. S. 225 economic reasons, [Footnote 4] not for illegal or discriminatory purposes, and recommended that the union's complaint be dismissed. The Board could not agree with the Trial Examiner's conclusion that specific evidence of subjective intent to discriminate against the union was necessary to finding that super-seniority granted during a strike is an unfair labor practice. Its consistent view, the Board said, had always been that super-seniority, in circumstances such as these, was an unfair labor practice. The Board rejected the argument that super-seniority granted during a strike is a legitimate corollary of the employer's right of replacement under Labor Board v. Mackay Radio & Tel. Co., 304 U. S. 333, and detailed at some length the factors which to it indicated that"super-seniority is a form of discrimination extending far beyond the employer's right of replacement sanctioned by Mackay, and is, moreover, in direct conflict with the express provisions of the Act prohibiting discrimination."Having put aside Mackay, the Board went on to deny "that specific evidence of Respondent's discriminatory motivation is required to establish the alleged violations of the Act," relying upon Radio Officers v. Labor Board, 347 U. S. 17; Republic Aviation Corp. v. Labor Board, 324 U. S. 793, and Teamsters Local v. Labor Board, 365 U. S. 667. Moreover, in the Board's judgment, the employer's insistence that its overriding purpose in granting super-seniority was to keep its plant open and, Page 373 U. S. 226 that business necessity justified its conduct was unacceptable, since"to excuse such conduct would greatly diminish, if not destroy, the right to strike guaranteed by the Act, and would run directly counter to the guarantees of Sections 8(a)(1) and (3) that employees shall not be discriminated against for engaging in protected concerted activities. [Footnote 5]"Accordingly, the Board declined to make findings as to the specific motivation of the plan or its business necessity in the circumstances here.The Court of Appeals rejected as unsupportable the rationale of the Board that a preferential seniority policy is illegal, however motivated."We are of the opinion that inherent in the right of an employer to replace strikers during a strike is the concomitant right to adopt a preferential seniority policy which will assure the replacements some form of tenure, provided the policy is adopted SOLELY to protect and continue the business of the employer. We find nothing in the Act which proscribes such a policy. Whether the policy adopted by the Company in the instant case was illegally motivated we do not decide. The question is one of fact for decision by the Board."303 F.2d at 364. It consequently denied the Board's petition for enforcement and remanded the case for further findings. Page 373 U. S. 227We think the Court of Appeals erred in hold that, in the absence of a finding of specific illegal intent, a legitimate business purpose is always a defense to an unfair labor practice charge. Cases in this Court dealing with unfair labor practices have recognized the relevance and importance of showing the employer's intent or motive to discriminate or to interfere with union rights. But specific evidence of such subjective intent is "not an indispensable element of proof of violation." Radio Officers v. Labor Board, 347 U. S. 17, 347 U. S. 44."Some conduct may, by its very nature, contain the implications of the required intent; the natural foreseeable consequences of certain action may warrant the inference. . . . The existence of discrimination may at times be inferred by the Board, for 'it is permissible to draw on experience in factual inquiries.'"Teamsters Local v. Labor Board, 365 U. S. 667, 365 U. S. 675.Though the intent necessary for an unfair labor practice may be shown in different ways, proving it in one manner may have far different weight and far different consequences than proving it in another. When specific evidence of a subjective intent to discriminate or to encourage or discourage union membership is shown, and found, many otherwise innocent or ambiguous actions which are normally incident to the conduct of a business may, without more, be converted into unfair labor practices. Labor Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 301 U. S. 46 (discharging employees); Associated Press v. Labor Board, 301 U. S. 103, 301 U. S. 132 (discharging employees); Phelps Dodge Corp. v. Labor Board, 313 U. S. 177 (hiring employees). Compare Labor Board v. Brown-Dunkin Co., 287 F.2d 17, with Labor Board v. Houston Chronicle Publishing Co., 211 F.2d 848 (subcontracting union work); and Fiss Corp., 43 N.L.R.B. 125, with Jacob H. Klotz, 13 N.L.R.B. 746 (movement of plant to another town). Such proof itself is normally sufficient to destroy the employer's Page 373 U. S. 228 claim of a legitimate business purpose, if one is made, and provides strong support to a finding that there is interference with union rights or that union membership will be discouraged. Conduct which, on its face, appears to serve legitimate business ends in these cases is wholly impeached by the showing of an intent to encroach upon protected rights. The employer's claim of legitimacy is totally dispelled. [Footnote 6]The outcome may well be the same when intent is founded upon the inherently discriminatory or destructive nature of the conduct itself. The employer in such cases must be held to intend the very consequences which foreseeably and inescapably flow from his actions, and, if he fails to explain away, to justify or to characterize his actions as something different than they appear on their face, an unfair labor practice charge is made out. Radio Officers v. Labor Board, supra. But, as often happens, the employer may counter by claiming that his actions were taken in the pursuit of legitimate business ends, and that his dominant purpose was not to discriminate or to invade union rights, but to accomplish business objectives acceptable under the Act. Nevertheless, his conduct does speak for itself -- it is discriminatory, and it does discourage union membership, and, whatever the claimed overriding justification may be, it carries with it unavoidable consequences which the employer not only foresaw, but which he must have intended. As is not uncommon in human experience, such situations present a complex of motives and preferring one motive to another Page 373 U. S. 229 is, in reality, the far more delicate task, reflected in part in decisions of this Court, [Footnote 7] of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner and of balancing in the light of the Act and its policy the intended consequences upon employee rights against the business ends to be served by the employer's conduct. [Footnote 8] Page 373 U. S. 230 This essentially is the teaching of the Court's prior cases dealing with this problem and, in our view, the Board did not depart from it.The Board made a detailed assessment of super-seniority and, it its experienced eye, such a plan had the following characteristics:"(1) Super-seniority affects the tenure of all strikers, whereas permanent replacement, proper under Mackay, affects only those who are, in actuality, replaced. It is one thing to say that a striker is subject to loss of his job at the strike's end, but quite another to hold that, in addition to the threat of replacement, all strikers will, at best, return to their jobs with seniority inferior to that of the replacements and of those who left the strike.""(2) A super-seniority award necessarily operates to the detriment of those who participated in the strike as compared to nonstrikers.""(3) Super-seniority made available to striking bargaining unit employees as well as to new employees is, in effect, offering individual benefits to the strikers to induce them to abandon the strike.""(4) Extending the benefits of super-seniority to striking bargaining unit employees as well as to new replacements deals a crippling blow to the strike effort. At one stroke, those with low seniority have the opportunity to obtain the job security which ordinarily only long years of service can bring, while, conversely, the accumulated seniority of older employees is seriously diluted. This combination of threat and promise could be expected to undermine the strikers' mutual interest and place Page 373 U. S. 231 the entire strike effort in jeopardy. The history of this strike and its virtual collapse following the announcement of the plan emphasize the grave repercussions of super-seniority.""(5) Super-seniority renders future bargaining difficult, if not impossible, for the collective bargaining representative. Unlike the replacement granted in Mackay, which ceases to be an issue once the strike is over, the plan here creates a cleavage in the plant continuing long after the strike is ended. Employees are henceforth divided into two camps: those who stayed with the union and those who returned before the end of the strike, and thereby gained extra seniority. This breach is reemphasized with each subsequent layoff, and stands as an ever-present reminder of the dangers connected with striking and with union activities in general."In the light of this analysis, super-seniority, by its very terms, operates to discriminate between strikers and nonstrikers, both during and after a strike, and its destructive impact upon the strike and union activity cannot be doubted. The origin of the plan, as respondent insists, may have been to keep production going, and it may have been necessary to offer super-seniority to attract replacements and induce union members to leave the strike. But if this is true, accomplishment of respondent's business purpose inexorably was contingent upon attracting sufficient replacements and strikers by offering preferential inducements to those who worked, as opposed to those who struck. We think the Board was entitled to treat this case as involving conduct which carried its own indicia of intent, and which is barred by the Act unless saved from illegality by an overriding business purpose justifying the invasion of union rights. The Board concluded that the business purpose asserted was insufficient to insulate Page 373 U. S. 232 the super-seniority plan from the reach of § 8(a)(1) and § 8(a)(3), and we turn now to a review of that conclusion.The Court of Appeals and respondent rely upon Mackay as precluding the result reached by the Board, but we are not persuaded. Under the decision in that case, an employer may operate his plant during a strike, and, at its conclusion, need not discharge those who worked during the strike in order to make way for returning strikers. It may be, as the Court of Appeals said, that "such a replacement policy is obviously discriminatory, and may tend to discourage union membership." But Mackay did not deal with super-seniority, with its effects upon all strikers, whether replaced or not, or with its powerful impact upon a strike itself. Because the employer's interest must be deemed to outweigh the damage to concerted activities caused by permanently replacing strikers does not mean it also outweighs the far greater encroachment resulting from super-seniority in addition to permanent replacement.We have no intention of questioning the continuing vitality of the Mackay rule, but we are not prepared to extend it to the situation we have here. To do so would require us to set aside the Board's considered judgment that the Act and its underlying policy require, in the present context, giving more weight to the harm wrought by super-seniority than to the interest of the employer in operating its plant during the strike by utilizing this particular means of attracting replacements. We find nothing in the Act or its legislative history to indicate that super-seniority is necessarily an acceptable method of resisting the economic impact of a strike, nor do we find anything inconsistent with the result which the Board reached. On the contrary, these sources are wholly consistent with, and lend full support to, the conclusion of the Board. Page 373 U. S. 233Section 7 [Footnote 9] guarantees, and § 8(a)(1) protects from employer interference, the rights of employees to engage in concerted activities, which, as Congress as indicated, H.R.Rep. No. 245, 80th Cong., 1st Sess. 26, include the right to strike. Under § 8(a)(3), it is unlawful for an employer by discrimination in terms of employment to discourage "membership in any labor organization," which includes discouraging participation in concerted activities, Radio Officers v. Labor Board, 347 U. S. 17, 347 U. S. 39-40, such as a legitimate strike. Labor Board v. Wheeling Pipe Line, Inc., 229 F.2d 391; Republic Steel Corp. v. Labor Board, 114 F.2d 820. Section 13 [Footnote 10] makes clear that, although the strike weapon is not an unqualified right, nothing in the Act except as specifically provided is to be construed to interfere with this means of redress, H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 59, and § 2(3), [Footnote 11] preserves to strikers their unfilled positions and status as employees during the pendency of a strike. S.Rep. No. 573, 74th Cong., 1st Sess. 6. [Footnote 12] This repeated solicitude for Page 373 U. S. 234 the right to strike is predicated upon the conclusion that a strike when legitimately employed is an economic weapon which in great measure implements and supports the principles of the collective bargaining system. [Footnote 13]While Congress has, from time to time, revamped and redirected national labor policy, its concern for the integrity of the strike weapon has remained constant. Thus, when Congress chose to qualify the use of the strike, it did so by prescribing the limits and conditions of the abridgment in exacting detail, e.g., §§ 8(b)(4), 8(d), by indicating the precise procedures to be followed in effecting the interference, e.g., § 10(j), (k), (l); §§ 206-210, Labor Management Relations Act, and by preserving the positive command of § 13 that the right to strike is to be given a Page 373 U. S. 235 generous interpretation within the scope of the labor Act. The courts have likewise repeatedly recognized and effectuated the strong interest of federal labor policy in the legitimate use of the strike. Automobile Workers v. O'Brien, 339 U. S. 454; Amalgamated Assn. of Elec. Ry. Employees v. Wisconsin Employment Rel. Bd., 340 U. S. 383; Labor Board v. Remington Rand, Inc., 130 F.2d 919; Cusano v. Labor Board, 190 F.2d 898; cf. Sinclair Ref. Co. v. Atkinson, 370 U. S. 195.Accordingly, in view of the deference paid the strike weapon by the federal labor laws and the devastating consequences upon it which the Board found was and would be precipitated by respondent's inherently discriminatory super-seniority plan, we cannot say the Board erred Page 373 U. S. 236 in the balance which it struck here. Although the Board's decisions are by no means immune from attack in the courts, as cases in this Court amply illustrate, e.g., Labor Board v. Babcock & Wilcox Co., 351 U. S. 105; Labor Board v. United Steelworkers, 357 U. S. 357; Labor Board v. Insurance Agents, 361 U. S. 477, its findings here are supported by substantial evidence, Universal Camera Corp. v. Labor Board, 340 U. S. 474, its explication is not inadequate, irrational or arbitrary, compare Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 313 U. S. 196-197; Labor Board v. United Steelworkers, supra, and it did not exceed its powers or venture into an area barred by the statute. Compare Labor Board v. Insurance Agents, supra. The matter before the Board lay well within the mainstream of its duties. It was attempting to deal with an issue which Congress had placed in its hands, and "[w]here Congress has in the statute given the Board a question to answer, the courts will give respect to that answer." Labor Board v. Insurance Agents, supra, at 361 U. S. 499. Here, as in other cases, we must recognize the Board's special function of applying the general provisions of the Act to the complexities of industrial life. Republic Aviation Corp. v. Labor Board, 324 U. S. 793, 324 U. S. 798; Phelps Dodge Corp. v. Labor Board, supra, at 313 U. S. 194, and of "[appraising] carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases" from its special understanding of "the actualities of industrial relations." Labor Board v. United Steelworkers, supra, at 357 U. S. 362-363."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."Labor Board v. Truck Drivers Union, 353 U. S. 87, 353 U. S. 96.Consequently, because the Board's judgment was that the claimed business purpose would not outweigh the Page 373 U. S. 237 necessary harm to employee rights -- a judgment which we sustain -- it could properly put aside evidence of respondent's motive and decline to find whether the conduct was or was not prompted by the claimed business purpose. We reverse the judgment of the Court of Appeals, and remand the case to that court, since its review was a limited one, and it must now reach the remaining questions before it, including the propriety of the remedy which, at least in part, turns upon the Board's construction of the settlement agreement as being no barrier to an award not only of reinstatement but of back pay as well. [Footnote 14]Reversed

U.S. Supreme CourtLabor Board v. Erie Resistor Corp., 373 U.S. 221 (1963)National labor Relations Board v. Erie Resistor Corp.No. 288Argued February 18-19, 1963Decided May 13, 1963373 U.S. 221SyllabusEven in the absence of a finding of specific illegal intent, and notwithstanding the employer's claim that his action was necessary to continue his operations during a strike, the National Labor Relations Board was justified in finding that it was a violation of § 8(a) of the National Labor Relations Act for the employer to discriminate between employees who struck and employees who worked during a strike by awarding an additional seniority credit of 20 years to replacements for strikers, and also to strikers who returned to work during the strike, so that, in a subsequent layoff, strikers who did not return to work until after the strike terminated were laid off as junior employees. Labor Board v. Mackay Radio & Tel. Co., 304 U. S. 333 distinguished. Pp. 373 U. S. 221-237.303 F.2d 359, reversed and cause remanded.